Opinion
2016 KA 0344
09-20-2016
STATE of Louisiana v. Paul John LAMBERT
Warren L. Montgomery, Matthew Caplan, Covington, LA, Counsel for Appellee, State of Louisiana Bruce G. Whittaker, New Orleans, LA, Counsel for Defendant/Appellant, Paul John Lambert
Warren L. Montgomery, Matthew Caplan, Covington, LA, Counsel for Appellee, State of Louisiana
Bruce G. Whittaker, New Orleans, LA, Counsel for Defendant/Appellant, Paul John Lambert
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
WHIPPLE, C.J.
The defendant, Paul John Lambert, was charged by bill of information with molestation of a juvenile when the offender has control or supervision over the juvenile, a violation of LSA–R.S. 14:81.2(A), and cruelty to juveniles, a violation of LSA–R.S. 14:93(A)(1). The defendant entered a plea of not guilty, was tried before a jury, and was found guilty as charged on both counts. The defendant was adjudicated a second-felony offender as to both counts. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. On each count, the trial court sentenced the defendant to fifteen-years imprisonment at hard labor to be served concurrently. The defendant now appeals, assigning error to the sufficiency of the evidence on both counts and to the denial of the motion for mistrial. For the following reasons, we affirm the defendant's convictions, habitual offender adjudications, and sentences.
The defendant admitted to the allegations of the habitual offender bill of information filed by the State. According to the record, the defendant's adjudication is based on a 2005 predicate conviction of theft at a value between five hundred and fifteen hundred dollars.
STATEMENT OF FACTS
In November of 1999, the defendant met A.M., the mother of E.M. (the victim), and they quickly began dating. A.M., was a recent widow, as her husband had been murdered less than one year before she met the defendant. In February of 2000, the defendant moved into an apartment in Mandeville, Louisiana with A.M. and her only child at the time, E.M., who was her child from her former marriage. E.M. was three years old when her biological father was murdered, and four years old when she and A.M. met the defendant. In June of 2002, A.M. had a daughter with the defendant, V.M., followed by another daughter, O.M., in August of 2003. According to A.M.'s trial testimony, during her pregnancy with her third daughter, her relationship with the defendant became increasingly volatile. They had frequent arguments and ultimately began having physical altercations in the presence of the victim. For example, A.M. and the victim recalled an incident when the defendant dragged A.M. down a flight of stairs. This incident happened around Christmas of 2001, when A.M. was pregnant with V.M.
The victim's date of birth is April 28, 1995. Herein, we identify the victim, her siblings and her mother only by their initials. See LSA–R.S. 46:1844(W).
A.M. testified that she moved out of the apartment with the defendant in 2002, shortly after V.M. was born. She and the defendant reconciled in July of 2003, and O.M. was born in August of that year. While A.M. confirmed that the defendant was V.M.'s father, she was not questioned regarding O.M.'s paternity. E.M. testified that the defendant was not O.M.'s biological father.
In February of 2006, the Department of Children and Family Services (DCFS), formerly the Office of Community Services (OCS), received a report regarding allegations of physical abuse of E.M. by the defendant and neglect of her siblings. The report was made subsequent to E.M. making initial disclosures to her aunt, who contacted OCS. An interview with the Children's Advocacy Center (CAC) was arranged wherein the victim disclosed incidents of being physically abused by the defendant, including an incident wherein he pulled her arm, slapped her, punched her in the face, and spit in her face when she refused to redo a set of chores. The interview was conducted by JoBeth Rickels and took place on April 19, 2006, prior to the victim's eleventh birthday that month. E.M. indicated that the defendant would leave bruises on her body during the incidents. She specified that during an incident that occurred in 2005, two to four months before Thanksgiving, the defendant hit her with a belt several times in her rib area. She recalled another incident that occurred when she was ten years old, wherein the defendant poked her in the stomach with a stick. She also recalled the defendant holding a "butcher knife" up to her face and cutting her hair with the knife. The victim further disclosed that the defendant would force her to watch him "do sexual stuff" with her mother several times a month, that he exposed the victim to pornographic material, and that the defendant would sometimes enter her private bathroom while she was bathing.
A second CAC interview took place on June 14, 2006, after the victim made additional disclosures to her grandmother involving the defendant's sexual abuse of the victim. The victim specifically indicated that when she was ten years old, the defendant began grabbing her below the waist as he stated the phrase, "cup check." E.M. indicated that these incidents occurred often, and further described "cup check" as a term to describe "what a football player wears." Using a diagram presented by Rickels, she further clarified that a "cup check" specifically involved the defendant grabbing her vaginal area on top of her clothing. Between late January and February of 2006, after E.M. asked her mother to stop going to work because the defendant would do "bad things" to her while her mother was away, E.M. was finally removed from the home and began living with her paternal grandmother in Mississippi.
ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE
In assignments of error numbers one and three, the defendant challenges the convictions, arguing that the State presented insufficient evidence to support the verdicts. Assignment of error number one addresses the conviction on count one of molestation of a juvenile. The defendant argues that there was no evidence that he used influence by virtue of a position of control or supervision over the victim in order to engage in the "repeated instances of boorish behavior." While further conceding that his actions may have been rude, insensitive, offensive, inappropriate, and extreme, the defendant contends that his actions were not due to exploitation of a position of control or supervision. Citing State v. Graham, 2014–1801 (La. 10/14/15), 180 So.3d 271, 276–77 (per curiam), the defendant further argues that while he lived with the victim's mother, A.M., and was the only resident male, this status alone was not sufficient proof of control or supervision. The defendant claims that in virtually every instance of alleged molestation, the victim was not under his supervision or control. He notes that the victim's mother was present either as a co-participant in sexual activity, and/or at the time that other inappropriate behavior took place. The defendant also claims that the victim's mother once chastised him for allegedly making inappropriate comments to the victim, who likewise told the defendant to "shut up."
Regarding the conviction of cruelty to a juvenile on count three, the defendant argues in assignment of error number three, that the State failed to prove beyond a reasonable doubt that the victim suffered unjustifiable pain and suffering. The defendant contends that the evidence of physical violence against the victim was minimal. The defendant notes that the victim admitted that she was not injured during an alleged incident wherein the defendant purportedly held a knife up against the victim's throat. The defendant further cites the victim's contention that while the incidents were painful, she did not suffer "terrible" marks from the approximate five times that the defendant struck her with a belt over a period of time. Finally, the defendant notes that other than the incident with the knife and the five belt whippings, the victim did not recall any other acts of physical violence by the defendant against her person. The defendant concludes that there was no evidence that the victim was ever physically injured and that something more than the very minimal indications of pain presented in this case is required to support a verdict of cruelty to a juvenile.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the Louisiana Legislature in enacting LSA–C.Cr.P. art. 821, is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003–0897 (La. 4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). When analyzing circumstantial evidence, LSA–R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002–1492 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 420.
As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). Moreover, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Richardson, 459 So.2d at 38. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Thomas, 2005–2210 (La.App. 1 Cir. 6/9/06), 938 So.2d 168, 174, writ denied, 2006–2403 (La. 4/27/07), 955 So.2d 683.
Molestation of a juvenile is the commission by anyone over the age of seventeen of 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, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age is not a defense. LSA–R.S. 14:81.2(A)(1). A lewd and lascivious act is an act that is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner. See State v. Jones, 2010–0762 (La. 9/7/11), 74 So.3d 197, 200 n.l. Consistent with the language of Louisiana Revised Statute 14:81.2, which requires not just the potential for influence but its use, Louisiana courts have required proof of specific acts constituting an exertion of control or supervision. See, e.g., State v. A.B.M., 2010–0648 (La.App. 3d Cir. 12/8/10), 52 So.3d 1021, 1026, (emphasizing that defendant was not just the victim's biological father, who was divorced from the victim's mother, but that the victim's mother specifically placed the victim in his care while she was in the hospital with her new husband, during which time defendant performed caretaking functions); see also State v. Forbes, 97–1839 (La.App. 1 Cir. 6/29/98), 716 So.2d 424, 428 (finding there was no evidence that an adult male visitor to the home of the grandmother, who baby-sat the victim, could exercise any control or supervision over the victim); State v. Rideaux, 2005–0446 (La.App. 3d Cir. 11/2/05), 916 So.2d 488, 494, (noting that "there was no testimony that [d]efendant ever baby-sat the victims alone without his wife present or that the molestation took place while he was baby-sitting"); State v. Ragas, 607 So.2d 967, 973 (La.App. 4th Cir.1992), writ denied, 612 So.2d 97 (1993) (finding that although the defendant had supervised the victim in the past, there was no evidence the defendant was babysitting the victim on the day of the incident, and the victim was under no constraints to remain with the defendant, her uncle, that day).
Molestation of a juvenile is a specific intent crime. However, specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93–1361 (La.App. 1st Cir. 5/20/94), 637 So.2d 814, 817–18, writ denied, 94–1563 (La. 10/28/94), 644 So.2d 649, abrogated on other grounds, State ex rel. Olivieri v. State, 2000–0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA–R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99–1945 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000–2223 (La. 6/15/01), 793 So.2d 1235.
Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. LSA–R.S. 14:93(A). "Mistreatment" as used in this statute is equated with "abuse." State v. Comeaux, 319 So.2d 897, 899 (La.1975). Criminally negligent mistreatment or neglect of the juvenile occurs where there is such disregard of the interest of the juvenile that the defendant's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. LSA–R.S. 14:12 ; Duncan, 835 So.2d at 629 ; Morrison, 582 So.2d at 302. A victim need not seek medical treatment for the court to find he endured unjustifiable pain and suffering. State v. Bridges, 2012–2120 (La.App. 1 Cir. 6/7/13), 2013 WL 2484834 (unpublished), writ denied, 2013–1488 (La. 1/10/14), 130 So.3d 321 ; State v. Sedlock, 2004–564 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, 1284, writ denied. 2004–2710 (La. 2/25/05), 894 So.2d 1131. In State v. Barr, 354 So.2d 1344, 1347 (La.1978), the Louisiana Supreme Court held that unjustifiable pain and suffering must be understood to mean something more than psychological harm (resulting from abandonment in that case) that caused "minimal distress." The Court further stated, "However, we do not hold that abandonment cannot be ‘neglect;’ nor do we hold that psychological harm cannot be ‘unjustifiable pain and suffering.’ " See Barr, 354 So.2d at 1347.
The term "intentional" as used in LSA–R.S. 14:93 refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Duncan, 2002–0509 (La.App. 1 Cir. 9/27/02), 835 So.2d 623, 629, writ denied, 2003–0600 (La. 3/12/04), 869 So.2d 812 ; State v. Morrison, 582 So.2d 295, 302 (La.App. 1st Cir.1991). General criminal intent is "present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." LSA–R.S. 14:10(2).
Herein, Carolyn Bourque, a DCFS child welfare specialist/supervisor, testified that she reported the victim's allegations to Rachel Smith of the Sheriff's Office, Juvenile Detectives Division, and they set up the CAC interviews with Rickels. Bourque was present at the time of both interviews and noted that the victim's disclosures were consistent with the statements that she made during pre-CAC interviews with Bourque. Bourque made arrangements for the safety of the children, requiring the removal of the defendant or the children from the home. While E.M. was sent to live with her grandmother in Mississippi, DCFS ultimately took custody of E.M.'s younger siblings. On cross-examination, Rickels confirmed that the victim disclosed during the first interview that she had been hit. When asked if the victim was being disciplined, Rickels clarified that the defendant's actions took place out of anger as opposed to an effort to discipline the victim. Rickels responded negatively when asked if she saw any bruises on the victim at the time of the interview, but noted that she was not looking for any bruises at the time. On re-direct examination, Rickels further confirmed that the first interview took place approximately four to five months after the final alleged incidents of physical abuse, around Thanksgiving and Christmas of the previous year.
E.M. was twenty years old by the time the trial took place. When asked if she clearly remembered the things that occurred in the household, she indicated that the defendant's actions were still affecting her, stating in part, "I mean, even back then, it's not really something that you want to remember, but not something that you can get rid of." Consistent with her CAC interviews, E.M. testified that the defendant became more violent after A.M.'s first baby (another female) with the defendant died about one month after her birth in early 2001, over a year before V.M. was born. E.M. was six years old at that time. E.M. specifically stated during the first CAC interview that the defendant, whom she referred to as her mother's boyfriend, became "meaner" at that time, adding during her trial testimony that it was at that time that the defendant started "putting his hands" on her mother. E.M. further testified that after her mother had O.M., her schedule changed, and she would leave for work as soon as the victim arrived home from school, at which time the defendant would be arriving home from work. The victim testified that every time she came home from school, "everything started turning" towards her, and she and her siblings would be left alone with the defendant. In the initial CAC interview and during the trial, the incidents of violence against her mother that the victim recalled included the defendant pushing or dragging A.M. down a set of stairs when she was pregnant with V.M., and an incident in which her mother received a black eye during a subsequent altercation wherein the defendant threw a set of keys at A.M.'s face. The victim indicated that the defendant physically abused her mother "every now and then," and that A.M. would often leave the defendant, then return, and the abuse would resume. E.M. testified that she would see the aftermath of injuries that her mother sustained from incidents that she did not personally witness. The victim testified that the defendant made all of the household rules. She noted that she was sometimes required to cook dinner, and that she had to bathe her sisters and perform other chores while her mother was at work.
During the trial, the victim and A.M. clarified that the victim was not actually present during this incident, but did see the bruise under her mother's eye, was aware that the incident involved the defendant hitting the victim in the face with a set of keys, and was present when the police arrived in response to the incident.
Regarding specific acts against the victim by the defendant, E.M. testified, "everything started with me after we moved back with both my little sisters," when the victim was approximately between the ages of eight and ten years old. She specifically recalled an incident involving a knife in the kitchen after the defendant and A.M. had just had a fight. E.M. could not remember how the fight started, but recalled that the defendant held E.M. up against the wall while holding the knife to her throat. She testified that he didn't leave any marks during that incident, adding, "But he had shoved me up against the wall, shoved me down to the ground countless times." E.M. confirmed that the defendant did not physically injure her with the knife or grab her by the throat. When asked how many times the defendant used a belt to strike her, the victim stated that she was uncertain, but estimated that it occurred approximately five times. She stated that he would strike her on her buttocks and on her back. When asked if the strikes with the belt left marks, she testified, "Not terrible ones, like, it would be gone soon." She confirmed that the beatings were painful, and that she would tell the defendant to stop, but he would not listen.
When asked if the defendant ever did anything of a sexual nature while she was in her bathroom, the victim testified that there were a few times when he would walk in while she was taking a bath and would open the door and stand in the doorway and make comments like, "A cup," which she perceived as a reference to her bra size. She further recalled that the defendant would sometimes shower with the curtain open and, while he was still completely naked, would call her to pass him a towel from a cabinet to which he would be standing within close proximity. She testified that on one occasion, immediately after she got out of the bathtub and while she was only wearing a towel, the defendant forced her to assist her mother while assembling a new table and would not allow her to get dressed first.
Regarding exposure to the defendant and her mother having sex, the victim testified that as to the first incident of that type of exposure, she accidentally walked in the bedroom when they were having sex and the defendant commented, "one day you're going to have to learn how to do this." One of the incidents occurred when the victim and her siblings were in the living room watching television, and her mother was unclothed as the defendant was "playing with her down there." She stated that she tried to walk out, but the defendant would not allow her to leave the living room. She further recalled an incident in which the defendant had her mother's head underneath a blanket. The victim testified that the defendant was making noises during the incident wherein she observed her mother's head underneath a blanket, "making it obvious what was going on."
While describing such incidents during the first CAC interview, the victim stated that the defendant's hand would be touching the lower part of her mother's body with her clothes off, and that they would be on the floor while she was forced to sit on the sofa.
When asked if there were incidents wherein the defendant forced her to watch pornographic material, E.M. testified that one night she wanted to watch television before going to sleep, and the defendant stated, "Oh, you want to watch TV, well, here you go," before turning the television to "porn." She stated that she covered her head with a blanket. She stated that her mother was at work during this incident. As she stated during the CAC interview, the victim further recalled incidents where pornographic material would pop up on the computer while she was using it.
During the CAC interview, the victim specifically indicated that pornographic material on the computer consisted of "girls and guys doing sex."
Regarding the defendant touching her in a sexual manner, the victim testified as to three separate occasions, once at their apartment, once at the defendant's mother's house, and a third incident that she believed also occurred at their apartment. Specifically, consistent with the second CAC interview, the victim testified that the defendant would grab her "down there" and state, "cup check." She confirmed that "down there" was a reference to her vaginal area, and that in grabbing her, the defendant would "grasp" her vaginal area with his hand. She testified that these incidents made her feel uncomfortable. Regarding the time that it occurred at the defendant's mother's house, she testified, "it was so sick that his family just sat there. They didn't think anything of it." She confirmed that she made it clear to the defendant that she did not like his actions, but he repeated them regardless. On cross-examination, E.M. was asked if the defendant was disciplining her when he would hit her with a belt, and she testified, "He went too far with it and I'm not his child." When asked if he had the right to discipline her, she added "He did, but like I said, he took it too far."
A.M. also testified during the trial. A.M. described the defendant as being "very attentive" as a father, noting that he had stepped in as E.M.'s father. She stated that after she gave birth to their daughter, who died shortly after birth, and later to V.M., the defendant was still acting as a father to E.M, describing things as "pretty happy" at the time, "like a family." She testified that things began to change, however, after their first daughter passed away, stating that the defendant was "hanging out" more and that A.M. and the defendant did not get along as well. The arguing increased after she became pregnant with V.M. and increasingly became physical in the presence of the victim. When asked if the defendant ever used corporal punishment on the children, A.M. responded negatively, but added that he would sometimes pull E.M. by the hair and/or drag her by the arm into her room in A.M.'s presence.
A.M. testified that she and the defendant once had an argument that started inside, but then proceeded out to the balcony. As they went outside and continued to argue, the defendant held her over the third-story banister with his hand around her throat. She recalled pushing the defendant into the Christmas tree when they got back inside. A.M. also recalled the incident on the stairs at the apartment complex in E.M.'s presence. Specifically, when she was four or five months pregnant with V.M., around Christmas time, they argued as she was coming down the stairs and the defendant grabbed her by the ankles and dragged her down the stairs. The police were called after that incident, and they issued her a summons and arrested the defendant.
A.M. testified that although the defendant had a "normal" relationship with the victim's younger siblings, with E.M., the defendant was often physically violent, including his conduct of hair pulling and arm pulling. She recalled an incident when the defendant went in the victim's personal bathroom while she was bathing one night, adding that he told her, "[W]ash down there, because men don't like to smell a woman who stinks down there." A.M. stated that the defendant would manipulate her into having sex and testified that they had an unhealthy sex life. She confirmed that they watched pornography "a couple of times" in the front room on the television, but stated that she never saw the defendant watch pornographic material in front of the victim.
However, A.M. also recalled an incident that occurred when she and the defendant were having sex and the victim walked in her bedroom and asked if she could play with her friend. A.M. testified that the defendant told the victim to sit down and "watch this and learn how to do this." During this incident, V.M. and O.M. were in the same bed as A.M. and the defendant. (However, they were approximately one and two years old at that time). A.M. ultimately told E.M. to walk out and the defendant shoved E.M. into her bedroom. A.M. also confirmed that she and the defendant often had sexual intercourse in the living room, and that the victim was sometimes present. She also recalled the incident when the defendant required that she perform oral sex on him as E.M. was standing there, and she testified that he forced E.M. to watch. She noted that she had a blanket over her and added that while she did not want to comply, the defendant had grabbed her by the head, forcing it downward.
On cross-examination, A.M. confirmed that the victim did not have any problems with infections or any such issues when the defendant made comments about the need for her to wash her vaginal area while she was bathing in her bathtub. She further denied ever seeing the defendant beat the victim, but added, "I was at work." She admittedly never saw any unexplained bruises.
The defendant's mother, Mary Fontenelle, testified at the trial as a defense witness. She was specifically asked if she recalled a 2005 or 2006 incident wherein the defendant brought A.M. and E.M. to her house, and she noted that they did come over for a barbeque. She testified that she never saw an incident where the defendant touched E.M.'s vaginal area, she never saw any bruises on E.M, and she never witnessed anything out of the ordinary. She stated that the defendant had concerns about the victim "running around the apartment complex." She further testified that when the defendant and A.M. first began dating, the victim would kick the defendant, noting that she was three or four years old at the time. The defendant did not testify at the trial.
In the instant case, we conclude that the defendant's reliance on Graham, 180 So.3d 271, in support of his challenge as to the sufficiency of the evidence regarding his control or supervision, rather than based on his status, is misplaced. In Graham, the Louisiana Supreme Court concluded that the State had failed to meet its burden of proof to establish the offense of molestation of a juvenile where the State did not introduce any evidence that the defendant therein (the victim's stepbrother) committed the act "by the use of influence by virtue of a position of control or supervision." See Graham, 180 So.3d at 274. In that case, it was not apparent the State ever intended to prove that element, until such time as its theory of the case suddenly changed (from aggravated incest to molestation of a juvenile) after the defendant rested his case. As a result, the State was relegated to arguing, in its rebuttal remarks, that the jury could infer the defendant exercised control or supervision over the alleged victim from the defendant's status as an older stepbrother. See Graham, 180 So.3d at 276. Herein, there was ample evidence to show that the victim was left in the defendant's care and supervision while her mother went to work on a daily basis. The defendant exercised parental control in the victim's life during the years that she lived with the defendant and her mother.
Regarding the defendant's challenge of the evidence of pain or suffering as to count two, we likewise find no merit. In State v. Swan, 544 So.2d 1204 (La.App. 1st Cir.1989), the trial court convicted the defendant of cruelty to juveniles, and this court upheld the conviction on appeal. On appeal, the defense counsel alleged that there was insufficient evidence to support the conviction insofar as counsel examined photographs of the victims with a magnifying glass and detected only "a tiny mark on the forehead on one of the boys." Swan, 544 So.2d at 1207. However, as this court noted, the trier of fact accepted the victims' testimony that the defendant had pursued them in his car, fired shots at them, stopped them, beaten both of them, and forced them to return to his house. Herein, although there was no indication that the victim received any medical care, she testified that the defendant's actions left bruises and described painful, physically violent incidents. Further, she testified that although she did not want to remember the defendant's actions, they still had an affect on her as she was unable to "get rid of" the memories.
When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant case. Further, as the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99–0385 (La.App. 1 Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 2000–0829 (La. 11/13/00), 774 So.2d 971. On appeal, this Court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Glynn, 94–0332 (La.App. 1 Cir. 4/7/95), 653 So.2d 1288, 1310. writ denied, 95–1153 (La. 10/6/95), 661 So.2d 464.
In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006–0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007–2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). The defendant was the only adult present during many of the incidents detailed by the victim and acted as her father. The defendant had a position of authority and control over the victim and also used physical force in at least some instances. The defendant committed lewd or lascivious acts upon the victim with the intention of gratifying his sexual desires by use of influence by virtue of his position of control or supervision over the victim. The victim relayed incidents that involved significant physical violence against a young, defenseless girl by a grown male individual. Any rational trier of fact could rationally conclude the State proved beyond a reasonable doubt that the defendant either: (1) intentionally mistreated or neglected the victim, causing her unjustifiable pain and suffering, or (2) disregarded the victim's interests to such an extent that his conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under the circumstances, causing the infliction of unjustifiable pain and suffering. Thus, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of molestation of a juvenile and cruelty to juveniles were proven beyond a reasonable doubt. For the above reasons, assignments of error numbers one and three are without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant argues that the trial court erred in allowing other crimes evidence to be introduced during the trial. The defendant notes that based on the trial court's pretrial ruling, the State could only introduce acts of domestic violence against A.M. that occurred in the presence of the victim or in conjunction with sexual conduct or violence upon the victim. The defendant further notes that the trial court's ruling was based on the theory that such acts would have served to cause the victim to submit to alleged molestation without complaint. The defendant contends that despite the trial court's ruling, the State persisted in presenting evidence of a 2005 act of domestic violence in which defendant threw a set of keys at A.M. The defendant argues that the evidence was particularly egregious, as the incident resulted in the injury of A.M. and the arrest of the defendant. Contending that the trial court abused its discretion in denying the defense's subsequent motion for mistrial, the defendant argues that the evidence was inadmissible because it was not relevant and the victim was not present when the incident occurred. The defendant argues that the trial court erred in agreeing with the State's assertion that the defense had opened the door to the other crimes evidence. The defendant notes that in arguing that the evidence was admissible, the State specifically referred to the defense's assertion during opening statements that only A.M. had a past arrest for domestic violence due to an incident wherein she struck the defendant. The defendant argues that the "casual" comment in the opening remarks did not eradicate his constitutional rights to due process, to remain silent, and to a fair trial.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA–C.E. art. 403. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Freeman, 2007–0470 (La.App. 1 Cir. 9/14/07), 970 So.2d 621, 625, writ denied, 2007–2129 (La. 3/14/08), 977 So.2d 930.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA–C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA–C.E. art. 402.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Pierre, 2012–0125 (La.App. 1 Cir. 9/21/12), 111 So.3d 64, 68, writ denied, 2012–2227 (La. 4/1/13), 110 So.3d 139.
However, LSA–C.E. art. 404(B)(1) authorizes the admission of evidence of other crimes, wrongs, or acts when the evidence "relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." Evidence of other crimes forms part of the res gestae when said crimes are related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. Integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the State's case would lose its narrative momentum and cohesiveness. State v. Odenbaugh, 2010–0268 (La. 12/6/11), 82 So.3d 215, 251, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012).
The Louisiana Supreme Court has left open the question of the applicability of the Article 403 test to integral act evidence admissible under LSA–C.E. art. 404(B). See State v. Colomb, 98–2813 (La. 10/1/99), 747 So.2d 1074, 1076 (per curiam).
A direct or indirect reference to another crime committed or alleged to have been committed by the defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of the defendant. LSA–C.Cr.P. article 770(2). Louisiana Code of Criminal Procedure art. 771 requires the trial judge to admonish the jury to disregard a comment made within the hearing of the jury that is irrelevant, immaterial, or prejudicial to the defendant or the State, when an admonishment is requested by the defendant or the State. In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. LSA–C.Cr.P. art. 771. Mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. The determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. Pierre, 111 So.3d at 68. Further, although Article 770 is couched in mandatory terms, it is a "rule for trial procedure." Thus, the introduction of inadmissible "other crimes" evidence results in a trial error subject to harmless error analysis on appeal. Odenbaugh, 82 So.3d at 251. Trial error is harmless where the verdict rendered is "surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).
As a general rule, because a State witness is not a "court official" within the meaning of LSA–C.Cr.P. art. 770, the provisions of LSA–C.Cr.P. art. 771, rather than LSA–C.Cr.P. art. 770, would apply. However, impermissible reference to another crime deliberately elicited from a State witness by the prosecutor would be imputable to the State and would mandate a mistrial. State v. Boudreaux, 503 So.2d 27, 31 (La.App. 1st Cir.1986).
The prohibition against references to inadmissible other crimes evidence under LSA–C.Cr.P. art. 770 does not include evidence which forms part of the res gestae. State v. Morris, 96–1008 (La.App. 1 Cir. 3/27/97), 691 So.2d 792, 805. writ denied, 97–1077 (La. 10/13/97), 703 So.2d 609.
Herein, the defense initially objected when State witness, Lieutenant Rachel Smith, testified that she investigated the history or background of the household members and determined that there was some complaints of domestic abuse. The trial court sustained the objection on grounds of hearsay. The trial court initially limited evidence of abuse of A.M. to incidents wherein the victim was present. Although evidence had already been presented regarding the incident (in the recording of the initial CAC interview), during the trial, the victim and A.M. clarified that the victim was not actually present during an incident wherein the defendant hit the victim in the face with a set of keys. The defendant moved for a mistrial, noting the trial court had previously disallowed evidence of domestic violence that did not occur in the presence of the victim. The trial court denied the motion, concluding that the State did not intentionally elicit evidence of the incident and further, that evidence of similar acts in the presence of the child had already been presented such that the contested testimony was not prejudicial. The State then added that the defendant opened the door to such testimony during his opening statement, when the defense attorney stated that the defendant was never arrested for domestic violence, but indicated that A.M. had been arrested for such an incident. On that basis, the trial court subsequently amended its prior ruling. The State was then allowed to question witnesses about incidents of this kind which led to an arrest, but otherwise still limited to situations where the child was present.
In opening statements the defense attorney specifically stated in part, "Paul Lambert didn't run this household ... if anybody ran this household, it was [A.M.]. [A.M.] is the only one that was convicted or arrested for beating Paul Lambert; she beat him."
We agree with the trial court's ruling in this case that the defendant opened the door for the evidence at issue. See State v. Taylor, 2001–1638 (La. 1/14/03), 838 So.2d 729, 745–46, cert. denied. 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004) (where the Louisiana Supreme Court held that the defendant opened the door to evidence regarding his gun ownership, noting in part that the subject of firearms originated in defense counsel's opening statement in which he announced the defendant had no previous knowledge of the use firearms); see also State v. Harvey, 26,613 (La.App. 2 Cir. 1/25/95), 649 So.2d 783, 787, writs denied, 95–0430 & 95–0625 (La. 6/30/95), 657 So.2d 1028 (where, despite the defendant's challenge under LSA–C.E. art. 404(A), the court ruled that the State may lay a foundation to refute a self-defense theory after the defense "opened the door" in its opening statement).
Moreover, in this case, the defendant's commission of abusive acts against the victim and his assertion of his position of control over the household were ongoing. Under the rule of narrative completeness incorporated in the doctrine of res gestae, "the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault." Taylor, 838 So.2d at 743. The testimony at issue herein was an integral part of the State's case, necessary to complete the narrative.
Assuming, arguendo, that the balancing test of LSA–C.E. art. 403 is applicable to integral act evidence admissible under LSA–C.E. art. 404(B)(1), that test was satisfied in this matter. Evidence that the defendant was in control of the household and asserted that control through violent acts was highly probative and unlikely to mislead or cause the jury to confuse the issues.
Nonetheless, as noted, even a determination that other crimes evidence was improperly admitted at trial would not end our inquiry. We note that while the victim was not present at the precise moment of the incident, she did see the bruise under her mother's eye, was aware that the incident involved the defendant hitting the victim in the face with a set of keys, and was present when the police arrived in response to the incident. Further, there was overwhelming testimony regarding the unchallenged acts by the defendant that were committed in the victim's presence. Based on our review of the record, we find that the guilty verdicts returned in this case were surely unattributable to any erroneously admitted evidence of extraneous other crimes. Thus, the trial court did not err in denying the motion for mistrial. For these reasons, assignment of error number two lacks merit.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED.
McClendon, J., concurs.