Opinion
NO. 20-KA-60
12-23-2020
STATE of Louisiana v. Rafael Arturo Coto CHINCHILLA
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Matthew R. Clauss COUNSEL FOR DEFENDANT/APPELLANT, RAFAEL ARTURO COTO CHINCHILLA, Rafael Arturo Coto Chinchilla, Jane L. Beebe
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Matthew R. Clauss
COUNSEL FOR DEFENDANT/APPELLANT, RAFAEL ARTURO COTO CHINCHILLA, Rafael Arturo Coto Chinchilla, Jane L. Beebe
Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
WINDHORST, J. Defendant, Rafael Arturo Coto Chinchilla, appeals his conviction of sexual battery of a juvenile under thirteen (count one), indecent behavior with a juvenile under thirteen (count two), and indecent behavior with a juvenile (count three). For the reasons that follow, we affirm defendant's conviction and sentence on count one for sexual battery of a juvenile under thirteen, and vacate defendant's convictions and sentences on counts two and three for indecent behavior with a juvenile under thirteen and indecent behavior with a juvenile, and remand the matter to the trial court for further proceedings.
STATEMENT OF THE CASE
On July 18, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Chinchilla, with sexual battery of a juvenile under thirteen in violation of La. R.S. 14:43.1 (count one), indecent behavior with a juvenile under thirteen in violation of La. R.S. 14:81 (count two), and indecent behavior with a juvenile in violation of La. R.S. 14:81 (count three), all involving the same victim. Defendant pled not guilty.
Jury selection and trial began on August 26, 2019, and trial before a twelve-person jury concluded on August 30, 2019. The jury unanimously found defendant guilty as charged on count one, but found defendant guilty as charged by a ten to two concurrence on counts two and three. On September 12, 2019, the trial court sentenced defendant for count one to sixty years imprisonment at hard labor, twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. Defendant was informed that, as to count one, upon release he must register as a sex offender for the duration of his life and conform to all of the rules, regulations, and terms of the sex offender registration laws. As to count two, the trial court sentenced defendant to twenty years imprisonment at hard labor, ten years of the sentence to be served without benefit of parole, probation, or suspension of sentence. As to count three, defendant was sentenced to seven years imprisonment at hard labor. The trial court ordered the sentences to run concurrently.
FACTS
The testimony at trial revealed the following. H.B., the victim's father, married the victim's mother, Y.P., shortly before the victim, C.B., was born, and the three lived together in Cuba. H.B. and Y.P. eventually separated but did not divorce while living in Cuba. While they were still married, they legally immigrated to the United States with C.B. and initially lived in Miami.
Y.P. and C.B. moved to New Orleans, while H.B. remained in Miami for eight or nine months before moving to New Orleans and living with C.B., Y.P., and Y.P.'s brother. By that point, Y.P. had met Chinchilla, who lived with them for a few months. H.B. later moved into his own apartment and, despite having no formal custody agreement, would bring C.B. to his apartment three times a month.
H.B. and Y.P., the victim's parents, divorced in November of 2016.
After H.B. moved to New Orleans, he met Yanicet Garrido through Y.P., and eventually became involved in a relationship with her. Ms. Garrido moved in with him, and C.B. continued to visit him. According to H.B., over the course of two days, C.B. asked multiple times to live with him and Ms. Garrido. C.B. told H.B. that she did not want to go anywhere with or be around defendant.
On February 13, 2017, Y.P. called H.B. and asked him to pick C.B. up from school. At his house, C.B. showed Ms. Garrido photographs on her phone of a school party but when H.B. tried to see the photographs, she did not want to give him the phone. H.B. eventually got the phone and found a video of her saying, "leave me alone Jonathan, leave me alone." H.B. and C.B. clarified that this referenced defendant, who goes by "Jonathan." When H.B. asked C.B. about it, she began crying, saying defendant sexually abused her. According to Ms. Garrido, defendant did not visually appear in the video, but she heard defendant's voice in it, and C.B.'s voice sounded like she was in danger. C.B. was thirteen and a half years old when she disclosed this sexual abuse.
Soon thereafter, H.B. asked Y.P. to come see him, and when she arrived at his house, he relayed to her what C.B. told him. Upon instruction from C.B.'s doctor, H.B. brought her to the hospital where she was seen by a doctor, and the police were contacted. At the hospital, the police spoke to C.B. The emergency room doctor recommended that C.B. see an expert at Children's Hospital.
At Children's Hospital, the doctor diagnosed her with "child psycho bias" and recommended C.B. receive counseling. The doctor also recommended that C.B. be interviewed at the Child's Advocacy Center (CAC). H.B. said he took C.B. to counseling multiple times, which seemed to help her, and also to CAC for an interview. A child protection investigator opened a case regarding these allegations and made a "valid finding of child sexual abuse." Detectives looked at C.B.'s phone and took a photograph of a photograph on C.B.'s phone from November of 2016 showing a mark on C.B.'s breast where defendant licked her. H.B. testified that he had seen the mark in person while C.B. changed clothes, but she told him it was a mark from her bra.
After defendant was arrested, Y.P. gave H.B. text messages from C.B.'s phone and a letter between C.B. and a friend. H.B. testified that he never doubted C.B. and that, while Y.P. was initially supportive, she no longer supported C.B and had not contacted her for over two years. Y.P. testified that she became suspicious of C.B.'s accusations because Ochsner did not give "proper proof" that C.B. was sexually abused, "all of the exams came out negative," and C.B. was never diagnosed with sexual abuse. She recounted a brief story that occurred "[a]fter everything got cooled down," where C.B. said she did not care about her mom. Y.P. testified that it was that moment that she found out C.B. was "manipulated by the people that surrounded her." She also stopped believing C.B. because her grades were very good, and C.B. "never rejected him." Y.P. testified that H.B. called defendant derogatory nicknames, and that she and defendant did not get along with Ms. Garrido.
C.B. testified that she was ten years old when her mother met defendant. She stated that in August 2015, when she was eleven years old, her mom left her with defendant at their home while she did paperwork for her taxes. She stated that she was asleep when defendant came into her room. She said he woke her up, and she told him to get out. She testified that defendant then went on her bed, and she tried to get him to move. She stated that defendant got on top of her. She punched and kicked him until they fell to the floor. She stated that she told him to stop and screamed at him, but he would not leave. She testified that defendant removed her panties and put his penis in her vagina. She stated that after he was done, he went back to his room, and she went to the bathroom to take a shower "because [she] felt disgusting." Afterwards, he returned to her bedroom and gave her money for school books; she testified that she told him she wanted him to leave.
C.B. also testified to a later incident in 2015 when her mom was out walking, and defendant arrived at their Metairie home early from work. She stated that she had a bathrobe on, and defendant entered her bedroom. She told him to leave; he took off her bathrobe and sucked on her breasts, leaving "purple and reddish" marks on both of her breasts. C.B. stated that defendant would try to kiss or bite her when her mother was not looking and sent her messages like, "oh, I love you. If I see you with anyone, I'm going to kill you." She took screenshots of some of those messages but others she erased because defendant would occasionally take her phone and check it.
C.B. stated that the last incident occurred on February 13, 2017, when she was thirteen years old, at their house in Kenner after he picked her up from school in his green truck and bought her favorite food. She testified that she did not want to be alone with him "because [she] knew he would try to do something" so she stalled going into the house. She testified that she went to her room and locked the door; but, defendant unlocked it with his key and threw her on the bed. She stated that he sucked on her breasts again. She said her mom and brother arrived home sometime later. She took a photograph on her phone of the mark defendant left; she also took a video of herself telling him to leave her alone. She stated that when she took the video, she felt really bad and wanted to call the police. She said that she took the video as proof that he was calling her names. C.B. stated that defendant told her that if she told her mom what he did, her brother would hate her, and they would suffer because he pays all of the bills; she testified that he said he would send someone to kill her if she called the police. Some of defendant's threats did come true.
She stated that she told her dad numerous times that she wanted to live with him because she "didn't want to live with [her] mom because Rafael was there." She said she was scared to tell her dad what was going on.
A.G., a friend of C.B. when she was about eleven years, testified at trial that he and C.B. used to talk on the phone, that she told him that somebody had entered her room and tried to force her to have sex, and that she often cried when they spoke on the phone. A.G. stated that C.B. was afraid of defendant and would "close herself in the room" because "she didn't like to see him or even eat when he was there." He testified that C.B. would become scared if the two of them got physically close, and that she did not like people touching her.
Dr. Tessa Hue, an emergency medicine physician, testified that she examined C.B. at Ochsner Hospital on February 13, 2017. Dr. Hue stated that C.B. told her that, one day that month, defendant picked her up from school, and once at home she locked her door, but defendant unlocked it with a key and came in. She told Dr. Hue defendant sucked on her breasts, leaving marks. C.B. also disclosed to Dr. Hue other incidents between 2015 and 2017, explained that her father found the video, and showed Dr. Hue the video. She noted during her physical examination that there were streaks on C.B.'s breasts "consistent with stretch marks," and there was no bruising or marks consistent with teeth marks. Dr. Hue testified that she noted in her report an "encounter diagnosis" of sexual assault, which was not based on the exam findings but on C.B.'s complaint because she did not find anything during the exam to diagnose otherwise.
Dr. Hue was admitted as an expert in emergency room medicine.
Dr. Neha Mehta is the Medical Director at the Audrey Hepburn Care Center, a comprehensive child abuse center at Children's Hospital. Dr. Mehta testified that a close familial relationship like that between defendant and C.B. is very common between abuser and victim and that it is also common for the abuse to occur in their shared home. Dr. Mehta testified that she conducted and recorded a child abuse examination of C.B., including obtaining her medical history. C.B. told her that she had never really disclosed details of her abuse until her father found the video, which Dr. Mehta indicated is "the norm." C.B.'s version of events in the audio recording was played for the jury and was consistent with her prior statements.
Dr. Mehta was accepted as an expert in the fields of general pediatrics and child sexual abuse pediatrics.
Brittney Bergeron, a forensic interviewer at the Jefferson Children's Advocacy Center, also interviewed C.B. Ms. Bergeron indicated that during the interview, C.B. mentioned an incident at her mother's prior apartment, two incidents wherein her breasts were sucked, and some incidents regarding kissing. The audio and video recording of C.B.'s forensic interview was admitted into evidence and played for the jury. Her description of the three incidents to Ms. Bergeron was consistent with her prior statements.
ASSIGNMENTS OF ERROR
Defendant, through counsel, asserts that (1) the trial court erred in accepting a non-unanimous jury verdict on counts two and three in light of the U.S. Supreme Court's recent ruling in Ramos v. Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020) ; (2) the evidence was insufficient to support the verdict in all three counts; and (3) the trial court erred in failing to sustain defendant's objection during rebuttal closing argument regarding the prosecutor's mischaracterization of the emergency room doctor's testimony, which misled the jury. Defendant, in a pro se brief, reasserts that he was denied his constitutional rights to trial by jury, due process, and equal protection when he was convicted by a non-unanimous jury and, that the evidence was insufficient to support the verdict.
Sufficiency of the Evidence
We first consider whether the evidence at trial was sufficient to prove the crimes charged beyond a reasonable doubt. If a reasonable trier of fact, when viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt, then the defendant is entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), and State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, when evidence is found to be insufficient, it results in a reversal and acquittal due to a failure to prove the crime charged beyond a reasonable doubt, to which jeopardy has attached, and the case cannot be retried. Consideration of sufficiency of evidence must therefore precede consideration of any other assignment of error which, if meritorious, would result in vacating the conviction due to trial errors, and remand for possible retrial.
Sufficiency of evidence analysis also precedes consideration of whether a verdict must be vacated and remanded under Ramos v. Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583.
The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Defendant in the instant case was found guilty by a jury of sexual battery of a juvenile under thirteen in violation of La. R.S. 14:43.1 (count one), indecent behavior with a juvenile under thirteen in violation of La. R.S. 14:81 (count two), and indecent behavior with a juvenile in violation of La. R.S. 14:81 (count three).
La. R.S. 14:43.1 defines sexual battery in pertinent part as follows:
the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when any of the following occur:
* * *
(2) The victim has not yet attained fifteen years of age and is at least three years younger than the offender.
La. R.S. 14:43.1(C)(2) provides for a harsher penalty when the victim is under the age of thirteen, and the offender is seventeen years of age or older.
La. R.S. 14:43.1(C)(2) provides for a harsher penalty when the victim is under the age of thirteen, and the offender is seventeen years of age or older.
La. R.S. 14:81 defines indecent behavior with a juvenile, in pertinent part, as:
Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child's age shall not be a defense;
La. R.S. 14:81(H)(2) provides for a harsher penalty when the victim is under the age of thirteen, and the offender is seventeen years of age or older.
La. R.S. 14:81(H)(2) provides for a harsher penalty when the victim is under the age of thirteen, and the offender is seventeen years of age or older.
In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. In sex offense cases, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Id.; State v. Bruce, 14-877 (La. App. 5 Cir. 3/25/15), 169 So.3d 671, 675, writ denied, 15-833 (La. 3/4/16), 187 So.3d 1007.
The record supports a finding that the State presented evidence at trial to establish each element of the offenses for which defendant was convicted. At trial, C.B. testified regarding three separate incidents involving defendant, including one that constitutes sexual battery and two other acts that constitute indecent behavior with a juvenile. She was between the ages of eleven and thirteen at the time of the incidents. Defendant was between the ages of twenty-nine and thirty-one at the time of the incidents.
The affidavit for arrest warrant and the waiver of rights form admitted into evidence at trial indicate defendant's date of birth is February 25, 1986.
According to C.B.'s testimony, the first incident occurred in August 2015, when she was eleven years old and at home with defendant while her mother was out. She testified that defendant removed her clothes while she punched and kicked him; that her resistance made them fall off of her bed and onto the floor; and that defendant put his penis in her vagina. C.B. testified to a second incident later in 2015, when defendant removed her bathrobe and sucked on both of her breasts. C.B. described a third incident on February 3, 2017, when defendant unlocked her bedroom door, threw her on her bed, and sucked on her breast. C.B.'s testimony at trial was consistent with other interviews she gave, including those with Dr. Mehta and Ms. Bergeron.
On appeal, defendant asserts that C.B.'s allegations were uncorroborated and that there is no physical evidence of abuse. Defendant argues that C.B. was impeached and that impeachment testimony is not sufficient to sustain a conviction. Defendant's arguments fail given that a victim's testimony alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. This Court has upheld a defendant's conviction for aggravated rape where there was no physical evidence of the offense, and the jury heard about the alleged animosity between the defendant and the victim's father, noting that the victim's testimony was enough to sustain the defendant's conviction. State v. Hernandez, 14-863 (La. App. 5 Cir. 9/23/15), 177 So.3d 342, writ denied, 15-2111 (La. 12/5/16), 210 So.3d 810.
In addition, a victim's testimony need not be uncontradicted to support a conviction. The resolution of conflicting or contradictory testimony is one of the fundamental tasks for the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). The contradictions among witness testimony noted by defendant are not irreconcilably inconsistent with C.B.'s testimony that defendant vaginally penetrated her and sucked on her breasts. An appellate court cannot re-evaluate the credibility of witnesses or re-weigh the evidence. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297.
Further, C.B.'s disclosure of the abuse was supported by evidence beyond her testimony. The State presented evidence through text messages, videos, and photographs. The jury also heard from C.B.'s friend that she told him of the first incident and alluded to other incidents. The jury heard C.B. retell her version of events multiple times with the recorded interviews, which were consistent with her previous statements.
The jury heard all testimony in this matter and obviously found C.B.'s version of the events credible. This Court should not second guess that credibility determination. State v. Simon, 10-1111 (La. App. 3 Cir. 4/13/11), 62 So.3d 318, 323, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922. Accordingly, considering the law and the evidence admitted at trial, we conclude that a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found beyond a reasonable doubt that the evidence was sufficient under the standard set forth in Jackson to support defendant's convictions of sexual battery of a juvenile under thirteen, indecent behavior with a juvenile under thirteen, and indecent behavior with a juvenile. Accordingly, defendant is not entitled to a judgment of acquittal.
Non-unanimous Verdict
Defendant alleges that the jury verdict for his convictions on counts two and three, indecent behavior with a juvenile under thirteen and indecent behavior with a juvenile, are invalid because they were rendered by a non-unanimous jury, and that the non-unanimous verdict violates the Sixth and Fourteenth Amendments of the United States Constitution. Because the punishment for these offenses is imprisonment for more than six months, a jury of twelve persons was required. See La. Const. Art. I, § 17 ; La. C.Cr.P. art. 782 ; La. R.S. 14:81. Non-unanimous verdicts were previously allowed under La. Const. Art. I, § 17 and La. C.Cr.P. art. 782, and the circumstances of this case. The constitutionality of the statutes was previously addressed by many courts, all of which rejected the argument. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) ; State v. Bertrand, 08-2215, 08-2311 (La. 03/17/09), 6 So.3d 738, 742-43 ; State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.
Defendant was found guilty of sexual battery of a juvenile under thirteen years of age (count one), which has a penalty of imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years; and indecent behavior with a juvenile under thirteen years of age (count two), which has a penalty of imprisonment at hard labor for not less than two nor more than twenty-five years, and indecent behavior with a juvenile (count three), which has a penalty of a fine of not more than five thousand dollars, or imprisonment, with or without hard labor, for not more than seven years, or both. La. R.S. 14:81. Given the potential penalty for all three counts is more than six months imprisonment, a jury of twelve persons was required for each count.
However, recently the United States Supreme Court in Ramos v. Louisiana, supra , found that the Sixth Amendment right to a jury trial, as incorporated against the States by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Id. at 1397. As a result of this decision, all defendants who were convicted of serious offenses by non-unanimous juries and whose cases are still pending on direct appeal will be entitled to a new trial. The State contends that count one should be affirmed because the record indicates a unanimous verdict on that count, but acknowledges that this assignment of error has merit as to counts two and three because there was a ten to two verdict on these counts.
For purposes of the Sixth Amendment, federal law defines petty offenses as offenses subject to imprisonment of six months or less, and serious offenses as offenses subject to imprisonment over six months. The Sixth Amendment's right to a jury trial only attaches to serious offenses. See generally Lewis v. United States, 518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996).
Based on Ramos, and that the instant case is on direct appeal, we find that because the verdict was not unanimous for these serious offenses as required by Ramos, defendant's convictions and sentences for counts two and three are vacated and the matter is remanded to the trial court for further proceedings.
See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004), observing that "[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review," citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.").
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Assignment of Error Three
Defendant further alleges that the State's rebuttal closing argument was improper because it mischaracterized testimony from Dr. Hue (the emergency room doctor) as the defense expert who diagnosed C.B. as having suffered sexual abuse. He argues that the trial court erred in not sustaining defendant's objection because the misleading comment made a fair trial and fair assessment of the evidence unlikely. Defendant also contends that the error was not harmless because it was so prejudicial and depicted defendant as a child sex abuser. The State contends that the statements were accurate because Dr. Hue stated that her encounter diagnosis was sexual assault with rape and that her diagnosis was based on C.B.'s complaint.
The prosecutor has considerable latitude in making closing arguments; but, this latitude has limits. State v. Pierce, 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1277. La. C.Cr.P. art. 774 confines argument to the evidence admitted, the lack of evidence, conclusions of fact that the state or defendant may draw therefrom, and the applicable law.
The trial judge has broad discretion in controlling the scope of closing arguments. State v. Greenup, 12-881 (La. App. 5 Cir. 8/27/13), 123 So.3d 768, 775-76, writ denied, 13-2300 (La. 3/21/14), 135 So.3d 617. A conviction will not be reversed based on improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. Id. A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant that deprives him of a reasonable expectation of a fair trial. State v. Pierce, 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1277.
In the instant case, defense counsel objected to the State's rebuttal argument. Specifically, the prosecutor stated:
Counsel wants to ask about proof. Let's talk about this. Every single professional who handles these cases every single day of their lives came in and told you that this is real. Their own expert told you that her diagnosis, after she came in, was child sexual abuse. And what did her
Defense counsel objected, asserting that "She testified the opposite." The judge overruled the objection, and at no time did defendant request the trial court to admonish the jury or request a mistrial.
Upon review, the record does not support concluding that the prosecutor's remarks mischaracterized Dr. Hue's testimony. On direct examination, defense counsel asked to read the encounter diagnosis from a copy of her medical report after C.B.'s exam, to which Dr. Hue responded sexual assault with rape. Defense counsel asked if that was her diagnosis, and she stated, "That was my diagnosis not based on my exam findings but based on her complaint because I didn't find anything on exam to diagnose otherwise." Counsel then asked if the term "encounter diagnosis" meant the diagnosis was not based on the exam. Dr. Hue explained that if she cannot find a cause for their symptoms, their diagnosis is still going to be what they told me brought them in for medical attention. Thus, the jury heard sufficient explanation regarding Dr. Hue's diagnosis and the basis for her diagnosis.
In addition, we do not find that this statement was so prejudicial as to warrant a mistrial. First, the prosecutor simply reiterated a statement made by a doctor, and the doctor explained the meaning of terminology used during her testimony. Second, the trial judge instructed the jury that "The statements and arguments made by the lawyers are not evidence" and "The opening statements and the closing statements are not to be considered as evidence." Third, defense counsel did not request a mistrial or an admonition under La. C.Cr.P. art. 771.
In light of the foregoing, we find that the trial judge properly overruled defense counsel's objection and that this assignment of error lacks merit.
ERRORS PATENT
We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). On review, we find two patent errors requiring this case be remanded to the trial court.
First, La. R.S. 15:540, et seq ., requires registration of sex offenders and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La. R.S. 15:542 and La. R.S. 15:542.1 to the defendant. The trial court informed defendant that he was required to comply with the sex offender notification/registration requirements, but the Uniform Commitment Order (UCO), under the Sentence Conditions section, does not indicate that these provisions are applicable. Thus, we remand this matter for the trial court to correct the UCO to reflect that defendant shall comply with the sex offender registration requirements, and the Clerk of Court for the Twenty-Fourth Judicial District Court to send the corrected UCO to the appropriate authorities and the Department of Corrections’ legal department. La. C.Cr.P. art. 892(B)(2) ; State v. Carriere, 19-366 (La. App. 5 Cir. 12/26/19), 289 So.3d 149, 153.
Second, we note that the UCO does not include the trial court's recommendation that defendant be allowed to participate in "any self-help and/or work release programs" that may be available to him. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the case for correction of the UCO to reflect the court's recommendation for any self-help and/or work release programs available to defendant, and direct the Clerk of Court to transmit the corrected UCO to the appropriate authorities as well as to the Louisiana Department of Public Safety and Corrections’ legal department. La. C.Cr.P. art. 892(B)(2) ; State v. Vance, 17-72 (La. App. 5 Cir. 8/30/17), 225 So.3d 1192, 1196.
DECREE
For the reasons stated above, we affirm defendant's conviction and sentence on count one, but vacate defendant's convictions and sentences based on non-unanimous jury verdicts on counts two and three, and remand this matter for further proceedings. AFFIRMED IN PART; VACATED IN PART; REMANDED