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STATE OF ARIZONA, Petitioner,

v.
THE HONORABLE KEVIN B. WEIN, COMMISSIONER OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF
MARICOPA, Respondent Commissioner,
GUY JAMES GOODMAN, Real Party in Interest.
No. CR-17-0221-PR.

Supreme Court of Arizona.

Filed May 25, 2018.

Appeal from the Superior Court in Maricopa County, The Honorable Kevin B. Wein,
Commissioner, No. CR2017-108708.

AFFIRMED.

Opinion of the Court of Appeals, Division One 242 Ariz. 352 (App. 2017).

VACATED.

William G. Montgomery, Maricopa County Attorney, Lisa Marie Martin (argued),


Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender, Nicholaus Podsiadlik, (argued),


Jamie Allen Jackson, Deputy Public Defenders, Phoenix, Attorneys for Guy James
Goodman.

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General,


Rusty D. Crandell (argued), Assistant Solicitor General, Phoenix, Attorneys for
Amicus Curiae Arizona Attorney General.

David J. Euchner (argued), Tucson, Deputy Public Defender, Attorney for Amici
Curiae Arizona Attorneys for Criminal Justice and Pima County Public Defender.

Jared G. Keenan, Kathleen E. Brody, Phoenix, Attorneys for Amicus Curiae


American Civil Liberties Union Foundation of Arizona; Andrea Woods, American
Civil Liberties Union Foundation Criminal Law Reform Project, New York, NY,
Attorneys for the American Civil Liberties Union and the American Civil Liberties
Union of Arizona.

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE
BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICE PELANDER joined.
JUSTICE BOLICK, joined by JUSTICES GOULD and LOPEZ, dissented. JUSTICE
GOULD, joined by JUSTICE LOPEZ, dissented.

JUSTICE TIMMER, opinion of the Court:

¶1 Persons charged with sexual assault must not be released on bail if they pose a
danger of committing new sexual assaults or other dangerous crimes while awaiting
trial. The question here is how this may be accomplished in a manner that furthers
this public-safety goal while preserving an accused's constitutionally guaranteed
liberty interest.

¶2 Article 2, section 22(A)(1), of the Arizona Constitution and A.R.S. § 13-3961(A)(2)


categorically prohibit bail for all persons charged with sexual assault if "the proof is
evident or the presumption great" that the person committed the crime, without
considering other facts that may justify bail in an individual case. We hold that these
provisions, on their face, violate the Fourteenth Amendment's Due Process Clause.
Unless the defendant is accused of committing sexual assault while already
admitted to bail on a separate felony charge, the trial court must make an
individualized bail determination before ordering pretrial detention. SeeAriz. Const.
art. 2, § 22(A)(2)-(3).

BACKGROUND
¶3 The Arizona Constitution provides that all persons charged with crimes shall be
bailable unless the accused is charged with a crime that falls within an exception
and the proof is evident or the presumption great that he committed that crime. Ariz.
Const. art. 2, § 22(A). Before 2002, these exceptions were limited to capital
offenses, felony offenses committed while the accused is on bail for a separate
felony charge, and felony offenses when the person charged poses a substantial
danger to any other person or the community and no conditions of release would
reasonably assure safety. A.R.S. § 13-3961, historical note.

¶4 In 2002, Arizona voters added to the listed exceptions by passing Proposition


103, which amended article 2, section 22(A)(1), to forbid bail when the proof is
evident or the presumption great that an accused committed sexual assault, sexual
conduct with a minor under fifteen years of age, or molestation of a child under
fifteen years of age ("Proposition 103 offenses"). See id.; see also A.R.S. § 13-
3961(A)(2)-(4) (codifying Proposition 103). Proposition 103 also declared that the
purposes of bail and any conditions for release include "[a]ssuring the appearance of
the accused," "[p]rotecting against the intimidation of witnesses," and "[p]rotecting
the safety of the victim, any other person or the community." Ariz. Const. art. 2, §
22(B); A.R.S. § 13-3961, historical note.
¶5 In Simpson v. Miller (Simpson II), 241 Ariz. 341, 349 ¶ 31 (2017), cert.
denied, Arizona v. Martinez, 138 S. Ct. 146 (2017), this Court held article 2, section
22(A)(1), and § 13-3961(A)(3) facially unconstitutional as they related to charges of
sexual conduct with a minor under fifteen years of age. After Simpson II the superior
court required individualized bail determinations pursuant to § 13-3961(D) for all
persons charged with Proposition 103 offenses. Section 13-3961(D) provides, in
relevant part:

[A] person who is in custody shall not be admitted to bail if the person is charged
with a felony offense and the state certifies by motion and the court finds after a
hearing on the matter that there is clear and convincing evidence that the person
charged poses a substantial danger to another person or the community or engaged
in conduct constituting a violent offense, that no condition or combination of
conditions of release may be imposed that will reasonably assure the safety of the
other person or the community and that the proof is evident or the presumption great
that the person committed the offense.

¶6 In 2017, the State charged Guy Goodman with sexually assaulting a victim in
2010. "A person commits sexual assault by intentionally or knowingly engaging in
sexual intercourse or oral sexual contact with any person without consent of such
person." A.R.S. § 13-1406(A). The state can charge a person with sexual assault at
any time as no statute of limitations applies to the offense. See A.R.S. § 13-107(A).

¶7 Over the State's objection that sexual assault remains a non-bailable offense
after Simpson II, the superior court conducted a § 13-3961(D) bail hearing. A police
officer testified that the victim claimed that Goodman, a guest in the victim's home
after a night of socializing, touched her vaginal area beneath her underwear while
she was sleeping and without her consent. DNA tested from an external vaginal
swab confirmed this contact. The officer also said that Goodman, when confronted
with the DNA results, admitted digital penetration. The court ruled that although
there was proof evident or a presumption great that Goodman committed the
offense, the State had failed to "meet its burden of clear and convincing evidence to
show that [Goodman] poses a substantial danger to other persons or the
community." (The State did not assert that Goodman committed a "violent offense,"
which is defined as either a dangerous crime against children or terrorism. A.R.S. §
13-3961(D).) The court reasoned that "[t]here was no evidence of any recent felony
criminal history or prior similar offenses or arrests nor any evidence of criminal
offenses between the time of this alleged offense in 2010 and today," nor any history
of contact, threats, or intimidation aimed at the victim or any witnesses. The court
set bail at $70,000, required that Goodman's movements be electronically monitored
upon release, and imposed other conditions, including that he not possess any
weapons, use non-prescription drugs, or contact the victim.
¶8 On special action review, the court of appeals vacated the bail order, holding that
"[s]exual assault remains a non-bailable offense" after Simpson II, and so a § 13-
3961(D) hearing is not required. State v. Wein, 242 Ariz. 352, 353 ¶ 1 (App. 2017).

¶9 We granted review to determine whether the categorical denial of bail for persons
charged with sexual assault, when the proof is evident or the presumption great as
to the charge, violates due process, an issue of statewide importance. Although
Goodman pleaded guilty and was sentenced while this matter was pending, we
nevertheless decide the issue because it is capable of repetition yet could evade
review due to the temporary duration of pretrial detention. See State v.
Valenzuela, 144 Ariz. 43, 44 (1985). We have jurisdiction pursuant to article 6,
section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.

DISCUSSION
I. Restrictions on pretrial detention: the Salerno
standards
¶10 The constitutional validity of Proposition 103's prohibition on bail for defendants
accused of sexual assault is an issue of law we review de novo. See Simpson
II, 241 Ariz. at 344 ¶ 7. As the challenging party, Goodman bears the "heavy burden"
of demonstrating that the restriction is facially unconstitutional. United States v.
Salerno, 481 U.S. 739, 745 (1987).

¶11 The Due Process Clause prohibits the government from punishing an accused
by jailing him before trial. See id. at 746. But if pretrial detention is regulatory rather
than punitive, the government's interest can, in appropriate and exceptional
circumstances, outweigh an individual's "strong interest in liberty," an important,
fundamental right. Id. at 748, 750; see also id. at 755 ("In our society liberty is the
norm, and detention prior to trial or without trial is the carefully limited exception.").

¶12 In Salerno, the United States Supreme Court used a two-step standard to
determine whether the Bail Reform Act's provisions permitting pretrial detention
constituted impermissible punishment or potentially permissible regulation. Id. at
747. "Unless Congress expressly intended to impose punitive restrictions, the
punitive/regulatory distinction turns on [1] whether an alternative purpose to which
the restriction may rationally be connected is assignable for it, and [2] whether it
appears excessive in relation to the alternative purpose assigned to it." Id. (internal
quotation marks and alterations omitted) (quoting Schall v. Martin, 467 U.S. 253,
269 (1984)). The Court concluded that the Act was regulatory. Id. at
748; cf. Simpson II, 241 Ariz. at 347 ¶ 20 (applying the Salerno standard).

¶13 The Salerno Court next used a two-step "heightened scrutiny" standard to
determine whether the Bail Reform Act, although regulatory, nevertheless violated
the due-process restriction on pretrial detention. Salerno, 481 U.S. at 748-
50; Simpson II, 241 Ariz. at 348 ¶ 23. Under that standard, pretrial detention is
constitutionally permissible if the government has both a "legitimate and compelling"
purpose for restricting an accused's liberty, and the restriction is "narrowly focuse[d]
on a particularly acute problem." Salerno, 481 U.S. at 749-50, 752. The Court
determined that the Act met this standard. Id. at 750-51; cf. Simpson II, 241 Ariz. at
345, 348 ¶¶ 9, 23 (applying the second Salerno standard to conclude that the
categorical prohibition of bail for arrestees charged with sexual conduct with a minor
under age fifteen violates due process).

¶14 Consistent with Salerno and Simpson II, we first examine whether Proposition
103's categorical prohibition on bail for arrestees charged with sexual assault is
regulatory or punitive. If the latter, the prohibition constitutes a per se due-process
violation. See Simpson II, 241 Ariz. at 347 ¶ 20. If the restriction is regulatory, we
must determine whether it nevertheless violates due process. Finally, we decide
whether any due-process violation renders the restriction facially unconstitutional.

II. Application here


A. Regulation vs. punishment
¶15 In Simpson II, we concluded that Proposition 103's categorical prohibition of bail
for an arrestee charged with sexual conduct with a minor under age fifteen, when
the proof is evident or presumption great that the person committed the offense, is
regulatory rather than punitive. Id. For the same reasons, Proposition 103's identical
prohibition on bail for persons charged with sexual assault is regulatory.

B. Due process
1. Legitimate and compelling purpose
¶16 The publicity pamphlet for Proposition 103 reflects that the measure's purpose
was both to ensure that sexual predators facing potential life sentences would be
present for trial and to keep "rapists and child molesters" from endangering others
while awaiting trial. The senator who sponsored the legislation placing Proposition
103 on the ballot explained to voters that "sexual predators . . . know they could be
facing lifetime incarceration" and therefore "ha[ve] no incentive to ever return" to
court, making Proposition 103 necessary to "keep dangerous sexual predators off
our streets." See Ariz. Sec'y of State, 2002 Publicity Pamphlet 16 (2002),
http://apps.azsos.gov/election/2002/Info/pubpamphlet/english/prop103.pdf ("Publicity
Pamphlet"). Others echoed the senator, focusing on the need to "prevent the worst
sexual predators from jumping bail or even simply walking our neighborhoods,"
stopping "rapists and child molesters" from reoffending, and treating "bail for rapists
and child molesters . . . like bail for murderers." Id. at 16-17.

¶17 Ensuring that an accused is present for trial serves a legitimate and compelling
purpose. Cf. Salerno, 481 U.S. at 749 ("[A]n arrestee may be incarcerated until trial
if he presents a risk of flight."). And the government has an equally compelling
interest in protecting victims and the public from those who would commit sexual
assault while on pretrial release. See id. at 747 ("There is no doubt that preventing
danger to the community is a legitimate regulatory goal."); Simpson II, 241 Ariz. at
348 ¶ 24 (finding that Proposition 103's prohibition on bail for persons accused of
sexual contact with a minor under fifteen years of age serves the legitimate and
compelling purpose of crime prevention).

¶18 Goodman takes issue with our analysis in Simpson II and argues that
Proposition 103 did not advance a legitimate and compelling government purpose
because voters were misled by suggestions that, without the categorical prohibition,
courts would have to grant bail to persons charged with Proposition 103 offenses.
We disagree. The Publicity Pamphlet stated that without the measure, persons
charged with Proposition 103 offenses would be "eligible for bail," not automatically
granted bail. Publicity Pamphlet, supra ¶ 16 at 16.

¶19 The prohibition on bail for those charged with sexual assault serves legitimate
and compelling regulatory purposes and thus satisfies the first prong of
the Salerno standard.

2. Narrowly focused measure


¶20 Proposition 103's categorical prohibition of bail for persons charged with sexual
assault is "narrowly focused" if the proof is evident or the presumption great
regarding the charge, and a sexual assault charge either presents an inherent flight
risk or inherently demonstrates that the accused will likely commit a new dangerous
crime while awaiting trial even with release conditions. Simpson II, 241 Ariz. at 348-
49 ¶¶ 26, 30.

a. Flight risk
¶21 A sexual assault charge does not present an inherent flight risk. "Sexual
assault" concerns an array of deviant behaviors and, depending on individual
circumstances, punishment ranges from 5.25 years' imprisonment to life
imprisonment. A.R.S. § 13-1406(B)-(D). The State does not cite any authority, and
we are not aware of any, suggesting that the prospect of imprisonment for a non-
capital offense inherently predicts that an accused will not appear for
trial. Cf. Simpson II, 241 Ariz. at 349 ¶ 26 ("Historically, capital offense charges have
been considered to present an inherent flight risk sufficient to justify bail denial.").
And even if the possibility of a life sentence presents an inherent flight risk, a
concern expressed in the Publicity Pamphlet, supra ¶ 16, the prohibition is
excessive as it sweeps in those arrestees facing only a term of years' imprisonment
if convicted.

b. Future dangerousness while awaiting trial


¶22 To begin, the question here is not whether sexual assault is a deplorable crime
that endangers and dehumanizes victims — it is, and it does. Cf. Coker v.
Georgia,433 U.S. 584, 597 (1977) (describing rape as "highly reprehensible" and
"the ultimate violation of self" after homicide). The pertinent inquiry is whether a
sexual-assault charge alone, when the proof is evident or the presumption great as
to the charge, inherently demonstrates that the accused will pose an unmanageable
risk of danger if released pending trial. See Simpson II, 241 Ariz. at 349 ¶
30; cf. Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (stating in the civil
commitment context that "[a] finding of dangerousness, standing alone, is ordinarily
not a sufficient ground" to justify commitment and that some additional factor is
required to narrow the class to persons "who are unable to control their
dangerousness"). For three reasons, we agree with Goodman that it does not.

¶23 First, Proposition 103 does not provide any procedures to determine whether a
person charged with sexual assault would pose a danger if granted pre-trial
release. Cf. Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992) (invalidating Louisiana's
continued detention of insanity acquittees who are no longer mentally ill because,
"[u]nlike the sharply focused scheme" in Salerno, which involved individualized
assessment, Louisiana's scheme does not include "an adversary hearing at which
the State must prove . . . that [the acquittee] is demonstrably dangerous to the
community"); Salerno, 481 U.S. at 742-43, 747, 750 (finding that the Bail Reform Act
was narrowly focused on preventing danger to the community because, in part, a
court could only order pre-trial detention after conducting a "full-blown adversary
hearing" and finding that no conditions would "assure . . . the safety of any other
person and the community"). A court's finding that the proof is evident or the
presumption great only shows a likelihood that an accused committed the charged
sexual assault. See Simpson II, 241 Ariz. at 346 ¶ 16(describing the standard as
requiring substantial proof that the accused committed the charged crime). It does
not address the likelihood that an accused would commit a new sexual assault or
other dangerous crime if released pending trial. Cf. United States v. Scott, 450 F.3d
863, 874 (9th Cir. 2006) ("Neither Salerno nor any other case authorizes detaining
someone in jail while awaiting trial, or the imposition of special bail conditions, based
merely on the fact of arrest for a particular crime.").

¶24 Second, nothing shows that most persons charged with sexual assault, or even
a significant number, would likely commit another sexual assault or otherwise
dangerous crime pending trial if released on bail. Cf. Simpson II, 241 Ariz. at 348-49
¶¶ 26, 30 (stating that any category of crime must serve as "a convincing proxy" for
future dangerousness (citation and internal quotation marks omitted)). Indeed, this
showing would be a difficult undertaking. Cf. Schall, 467 U.S. at 279 ("We have also
recognized that a prediction of future criminal conduct is an experienced prediction
based on a host of variables which cannot be readily codified.") (internal quotation
marks omitted).

¶25 The State points to recidivism rates among sex offenders as evidence of the
likelihood that sexual assault arrestees would commit a new sexual assault pending
trial if released on bail. The cited empirical studies are not illuminating, however, as
they concern a wide variety of sex crimes besides sexual assault, arrive at disparate
conclusions, and for the most part do not focus on the relatively short time period
between arrest and trial. Regardless, none of the studies cited reflects that most
convicted rapists re-offend, the highest number being 5.6% reoffending within five
years of release from prison. See Matthew R. Durose et al., Recidivism of Prisoners
Released in 30 States in 2005: Patterns from 2005 to 2010, at 2 (U.S. Dep't of
Justice 2016), https://www.bjs.gov/content/pub/pdf/rprts05p0510_st.pdf. And the
only cited study concerning accused rapists released on bail reflects that 3%
committed another unspecified felony pending trial. See Brian A. Reaves, Felony
Defendants in Large Urban Counties, 2009 — Statistical Tables 21 (U.S. Dep't of
Justice 2013), https://www.bjs.gov/content/pub/pdf/fdluc09.pdf.

¶26 Smith v. Doe, 538 U.S. 84 (2003), and McKune v. Lile, 536 U.S. 24
(2002),relied on by Justice Bolick in his dissent, do not persuade us that recidivism
rates justify a categorical denial of bail. See infra ¶ 45. At issue in Smith was
whether Alaska's registration requirement for convicted sex offenders imposed
punishment so that any retroactive application would violate the Ex Post Facto
Clause. Smith,538 U.S. at 89. Employing a test like the one used in Salerno to
determine whether an act is regulatory or punitive, the Court concluded that the
registration requirement was regulatory. Id. at 105-06. In rejecting an argument that
application of the registration requirement to all convicted sex offenders without
regard to their future dangerousness was excessive in relation to a proper regulatory
purpose, the Court noted that a sex-offense conviction could provide evidence of a
"substantial risk of recidivism," and that Alaska could "legislate with respect to
convicted sex offenders as a class, rather than require individual determination of
their dangerousness." Id. at 103-04.

¶27 But Smith did not establish that a state can regulate sex offenders as a class
in every situation without violating due process, as Justice Bolick asserts. See
infra¶¶ 45-47. Indeed, the Court suggested the opposite by distinguishing Alaska's
sex-offender-registration requirement from a Kansas act that authorized civil
commitment of sexually violent predators for a maximum of one year, subject to new
commitment proceedings. 538 U.S. at 104 (citing Hendricks, 521 U.S. at 364).
In Hendricks, the Court rejected a due-process challenge to the Kansas act,
reasoning that because it required an individualized finding of future dangerousness
linked with a "mental abnormality" or "personality disorder," it sufficiently "narrow[ed]
the class of persons eligible for confinement to those who are unable to control their
dangerousness." 521 U.S. at 358. (Contrary to Justice Bolick's characterization,
the Hendricks Court's due-process analysis did not turn on the potential that sexually
violent predators could be indefinitely confined. See infra ¶ 48.) The Smith Court
concluded that a similarly individualized risk assessment was not necessary to
uphold Alaska's law as regulatory, noting that "[t]he State's objective
in Hendricks was involuntary (and potentially indefinite) confinement of particularly
dangerous individuals," which made individual assessments appropriate given "[t]he
magnitude of the restraint." Smith, 538 U.S. at 104. The Court contrasted sex-
offender registration as a "more minor condition" and concluded that in that context
"the State can dispense with individual predictions of future dangerousness and
allow the public to assess the risk on the basis of accurate, nonprivate information
about the registrants' convictions." Id.Pretrial detention is more like civil commitment
than sex-offender registration, making this case closer to Hendricks. And Smith does
not support a conclusion that the risk of recidivism by some persons on pretrial
release justifies categorically dispensing with individual assessments of that risk.

¶28 McKune addressed whether requiring convicted sex offenders to admit their
crimes as part of an in-prison rehabilitation program violated the Fifth Amendment
privilege against self-incrimination. 536 U.S. at 29. The Court began its analysis by
noting that "[s]ex offenders are a serious threat in this Nation" and "[w]hen convicted
sex offenders reenter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault." Id. at 33. The empirical
study relied on by the Court for this conclusion, however, reflects that 7.7% of
convicted rapists released from prison in 1983 were rearrested for rape within three
years. See U.S. Dep't of Justice, Bureau of Justice Statistics, Recidivism of
Prisoners Released in 1983, at 6 (1997),
https://www.bjs.gov/content/pub/pdf/rpr83.pdf. Although we share
the McKuneCourt's view that sex offenders are a "serious threat," the post-
conviction recidivism rates do not inherently demonstrate that a person charged with
sexual assault will likely commit another sexual assault if released pending trial,
particularly if conditions like GPS monitoring are imposed.

¶29 Third, alternatives exist "that would serve the state's objective equally well at
less cost to individual liberty." Simpson II, 241 Ariz. at 349 ¶ 28. The Arizona
Constitution already forbids bail for those charged with any felony when the proof is
evident or the presumption great as to the charge, "the person charged poses a
substantial danger to any other person or the community," and "no conditions of
release which may be imposed will reasonably assure the safety of the other person
or the community." Ariz. Const. art. 2, § 22(A)(3); see also A.R.S. § 13-3961(D)
(codifying art. 2, § 22(A)(3)). Also, a court can set bail and impose restrictions
intended to preserve public safety, like the GPS monitoring imposed on
Goodman. See Ariz. Const. art. 2, § 22(B)(3) ("The purposes of bail and any
conditions of release that are set by a judicial officer include . . . [p]rotecting the
safety of the victim, any other person or the community.").

¶30 The court of appeals reached a different conclusion from ours by mistakenly
focusing on the dangerousness of sexual assault and not on whether a charge
inherently predicts the commission of a new sexual assault or otherwise dangerous
offense pending trial. Wein, 242 Ariz. at 355 ¶ 5; see also Hendricks,521 U.S. at
358; Simpson II, 241 Ariz. at 349 ¶ 30. The court seized on a citation signal to
interpret Simpson II as turning on the fact that sexual conduct with a minor under
fifteen years of age could be committed with a victim's consent and therefore "may
involve a defendant who is not a danger to the community." Wein,242 Ariz. at 353 ¶¶
7-8. The court reasoned that after Simpson II, a charge of sexual assault, which is
always non-consensual, "fulfills the requirement for finding inherent
dangerousness." Id. ¶ 9. Justice Bolick shares this view. See infra ¶ 42.

¶31 In retrospect, the court of appeals' confusion is understandable. We should


have immediately explained that just as commission of sexual conduct with a minor
under fifteen years of age is not always dangerous, it does not inherently
demonstrate future dangerousness pending trial. See Simpson II, 241 Ariz. at 349 ¶
27. We made that point later in the opinion. See id. ¶ 30 ("[T]he state may deny bail
categorically for crimes that inherently demonstrate future dangerousness" when the
proof is evident or the presumption great, but "[w]hat it may not do, consistent with
due process, is deny bail categorically for those accused of crimes that do not
inherently predict future dangerousness."); see also Morreno v. Hon.
Brickner/State, 790 Ariz. Adv. Rep. 24 ¶ 21 (May 2, 2018) ("The mere charge itself
[in Simpson II] was not a convincing proxy for future dangerousness, and therefore
not narrowly focused, because it swept in situations that are not predictive of future
dangerousness."). Justice Bolick's view that showing proof evident or presumption
great that an accused committed sexual assault alone demonstrates future
dangerousness is at odds with Simpson II's holding and also disregards key aspects
of Salerno's reasoning and holding. See infra ¶ 50; see also Morreno, 790 Ariz. Adv.
Rep. 24 ¶ 21.

¶32 Contrary to the dissent's assertion, infra ¶ 46, we reaffirm our view expressed
in Simpson II that due process does not require individualized determinations in
every case. 241 Ariz. at 348 ¶ 26. Indeed, we recently rejected a due-process
challenge to article 2, section 22(A)(2), of the Arizona Constitution, which precludes
bail "[f]or felony offenses committed when the person charged is already admitted to
bail on a separate felony charge and where the proof is evident or the presumption
great as to the present charge." Morreno, 790 Ariz. Adv. Rep. 24 ¶ 38. We
concluded that the state had a legitimate and compelling interest in "preventing
defendants from committing new felonies while on pretrial release from a prior felony
charge," and article 2, section 22(A)(2), narrowly focused on this objective by
applying only to defendants who, in fact, likely reoffended while on release. Id. ¶¶
31, 34 (citation and internal quotation marks omitted). "In such cases, an
individualized determination serves no narrowing function and is therefore
unnecessary." Id. ¶ 34. But unlike Morreno, the issue here is whether a sexual
assault charge inherently predicts that a defendant will commit another dangerous
offense pending trial. Due process requires an individualized assessment of this risk
because it is not categorically demonstrated, as is the risk presented by a felon who
has already reoffended while on pretrial release.

¶33 In sum, although Proposition 103 has legitimate and compelling regulatory
purposes, its categorical prohibition of bail for persons charged with sexual assault,
when the proof is evident or the presumption great as to the charge, is not narrowly
focused on accomplishing those purposes. The Salerno standard is unmet, meaning
the categorical prohibition of bail violates substantive due process. See Simpson
II, 241 Ariz. at 349 ¶ 30.

III. Facial unconstitutionality


¶34 The Arizona Attorney General, in an amicus role, and Justice Gould, in his
dissent, argue that even if Proposition 103's categorical prohibition on bail for those
charged with sexual assault violates Goodman's substantive-due-process rights, he
failed to establish that the prohibition is facially unconstitutional. To succeed on a
facial challenge, an admittedly difficult feat, "the challenger must establish that no
set of circumstances exists under which the Act would be valid. The fact that the
[Act] might operate unconstitutionally under some conceivable set of circumstances
is insufficient to render it wholly invalid." Salerno, 481 U.S. at 745.

¶35 Here, Proposition 103's categorical prohibition of bail for everyone charged with
sexual assault deprives arrestees of their substantive-due-process right to either an
individualized determination of future dangerousness or a valid proxy for it. See
Morreno, 790 Ariz. Adv. Rep. 24 ¶ 15. There is "no set of circumstances" under
which the prohibition would be valid because it lacks either of these features in every
application.

¶36 Echoing his partial dissent in Morreno, Justice Gould asserts that (1) the
prohibition here is not facially unconstitutional because it applies to arrestees who
would, in fact, likely commit a new sexual assault while on pretrial release, and (2)
we apply an overbreadth analysis that is properly confined to First Amendment
cases. See id. ¶¶42, 49 (Gould, J. concurring); infra ¶¶ 54, 56. We reject these
arguments for the same reasons we did in Morreno. See Morreno, 790 Ariz. Adv.
Rep. 24 ¶¶ 20-23.

CONCLUSION
¶37 As in Simpson II, we do not lightly set aside citizen-enacted constitutional
provisions, whether they are narrowly passed or approved "overwhelming[ly]" by
Arizona's voters (an irrelevancy for constitutionality purposes). Infra ¶ 39.
Nevertheless, article 2, section 22(A)(1), and § 13-3961(A)(2) are facially
unconstitutional because they categorically prohibit bail without regard for individual
circumstances. To be clear, courts can deny bail to a person charged with sexual
assault when the proof is evident or the presumption great as to the charge and
must do so when that person "poses a substantial danger to another person or the
community." A.R.S. § 13-3961(D). Before doing so, however, courts must engage in
an individualized determination by conducting a § 13-3961(D) hearing. We affirm the
superior court and vacate the court of appeals' opinion.

BOLICK, J., joined by GOULD, J., and LOPEZ, J., dissenting.

¶38 Although our colleagues' opinion has substantial merit, we conclude that the
differences between the crime of sexual assault at issue here and the crime of
sexual conduct with a minor at issue in Simpson II are of constitutional magnitude,
justifying Arizona citizens' determination that those who are likely to be adjudged
guilty of sexual assault should be held without bail pending trial.

¶39 We begin by recognizing, as did the Court in Simpson II, that the challenged
provision is part of our state's organic law, whose review against federal
constitutional challenges we undertake with "great care" and whose provisions "we
strive whenever possible to uphold." 241 Ariz. at 345 ¶ 8. In a close case, we should
not expansively construe United States Supreme Court precedents to compel
ourselves to invalidate a provision of our constitution; we should seek to the fullest
extent possible to harmonize the two. We conclude that no such irreconcilable
conflict exists here and that the majority too lightly sets aside the voters'
overwhelming determination that those who are shown to be likely guilty of sexual
assault should not be released pending trial. The framework set forth by the United
States Supreme Court in Salerno, while recognizing core liberty interests implicated
by pretrial incarceration, emphasized that it has "repeatedly held that the
Government's regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual's liberty interest." 481 U.S. at 748. This is one
of those appropriate circumstances.

¶40 In Simpson II, we held that individual determinations of future dangerousness


are not necessary in all cases, but that where pretrial incarceration is categorically
required, the crime giving rise to such conditions must serve as a "convincing proxy
for unmanageable flight risk or dangerousness." 241 Ariz. at 348 ¶
26(quoting Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 786 (9th Cir. 2014)). The
Court's determination that sexual conduct with a minor was not an adequate proxy
for dangerousness was based on the crime's definition, which encompassed
consensual activity so that dangerousness was not "inherent" in the crime. Id. at 349
¶¶ 26-27 ("The crime can be committed by a person of any age, and may be
consensual," thereby "sweep[ing] in situations where teenagers engage in
consensual sex. In such instances, evident proof or presumption great that the
defendant committed the crime would suggest little or nothing about the defendant's
danger to anyone."). The Court's analysis made clear that where a crime is not a
convincing proxy for dangerousness, an individual assessment of dangerousness is
necessary to deny pretrial release. But where a crime is a convincing proxy for
dangerousness, a determination by proof evident or presumption great that a
defendant committed the crime is sufficient to establish dangerousness and to
sustain a categorical prohibition of bail.

¶41 Sexual assault is by definition an extremely dangerous crime. As this Court


highlighted in Simpson II, absence of consent is a defining feature of sexual
assault. Id. ¶ 27 (citing A.R.S. § 13-1406(A) defining sexual assault as "intentionally
or knowingly engaging in sexual intercourse or oral sexual contact . . . without
consent of such person"). Our statutes carefully define and circumscribe the term
"without consent," which can occur in four discrete circumstances: where the victim
(a) "is coerced by the immediate use or threatened use of force against a person or
property"; (b) "is incapable of consent by reason of mental disorder, mental defect,
drugs, alcohol, sleep[,] or any other similar impairment of cognition and such
condition is known or should reasonably have been known to the defendant"; (c) "is
intentionally deceived as to the nature of the act"; or (d) "is intentionally deceived to
erroneously believe that the person is the victim's spouse." A.R.S. § 13-1401(A)(7).
Thus, by definition, sexual assault necessarily involves the sexual violation of a
person through force, coercion, or deception. As such, it is an inherently dangerous
crime, and proof evident or presumption great that a defendant has committed the
crime demonstrates that the defendant is dangerous.

¶42 As noted in Simpson II, the crime at issue there was defined to encompass both
consensual and nonconsensual acts. 241 Ariz. at 349 ¶ 27. Here the crime is
defined only to encompass nonconsensual sexual violations. The Court highlighted
that distinction because the risk of future dangerousness encompasses not only the
likelihood of recidivism but the inherent danger and human impact of the crime. The
majority now "explain[s]" that the nature of the crime is irrelevant to the risk of future
dangerousness. Supra ¶ 31. In that way, it removes from the constitutional equation
that sexual assault is by definition a uniquely horrific act, in which a person's most
intimate parts are violated through force, coercion, or deception.

¶43 As the United States Supreme Court recognized in Coker v. Georgia, sexual
assault

is highly reprehensible, both in a moral sense and in its almost total contempt for the
personal integrity and autonomy of the female victim and for the latter's privilege of
choosing those with whom intimate relationships are to be established. Short of
homicide, it is the "ultimate violation of self." It is also a violent crime because it
normally involves force, or the threat of force or intimidation, to overcome the will
and the capacity of the victim to resist. Rape is very often accompanied by physical
injury to the female and can also inflict mental and psychological damage. Because
it undermines the community's sense of security, there is public injury as well.

433 U.S. 584, 597-98 (1977) (emphasis added) (quoting Lisa Brodyaga et al., U.S.
Dep't of Justice, Rape and Its Victims: A Report for Citizens Health Facilities, and
Criminal Justice Agencies (1975)).

¶44 Unsurprisingly, then, the Supreme Court has recognized that sexual crimes
justify distinctive legislative treatment in the confinement context.

¶45 In Smith v. Doe, 538 U.S. 84 (2003), the Court upheld a state's sex-offender
registry against an Ex Post Facto Clause challenge. Although a distinct provision of
the Constitution, the Ex Post Facto Clause is closely related to substantive due
process because it likewise "forbids the application of any new punitive measure to a
crime already consummated." Kansas v. Hendricks, 521 U.S. 346, 370
(1997)(quoting Lindsey v. Washington, 301 U.S. 397, 401 (1937)). In Smith, the
challengers argued the law was excessive in relation to its regulatory purpose
because it "applies to all convicted sex offenders without regard to their future
dangerousness," 538 U.S. at 103, which parallels Goodman's argument here. The
Court held that the state reasonably "could conclude that a conviction for a sex
offense provides evidence of substantial risk of recidivism." Id. Specifically, the Court
cited findings justifying "grave concerns over the high rate of recidivism among
convicted sex offenders and their dangerousness as a class." Id.(emphasis
added); see also McKune v. Lile, 536 U.S. 24, 32-33 (2002) ("Sex offenders are a
serious threat in this Nation. . . . When convicted sex offenders reenter society, they
are much more likely than any other type of offender to be rearrested for a new rape
or sexual assault. . . . [T]he rate of recidivism of untreated offenders has been
estimated to be as high as 80%.").

¶46 The majority acknowledges that sex offenders constitute a serious threat but is
unconvinced that recidivism statistics "inherently demonstrate that a person charged
with sexual assault will likely commit another sexual assault if released pending
trial." Supra ¶ 28. That conclusion misstates the constitutional requirement and
implies the necessity of individualized assessments in every case, which we
expressly rejected in Simpson II. 241 Ariz. at 348 ¶ 26 ("[W]e do not read Salerno or
other decisions to require such individualized determinations in every case," but
rather to require that its procedure serve as a convincing proxy for
dangerousness.); accord State v. Furgal, 13 A.3d 272, 278-79 (N.H. 2010), cited
with approval in Simpson II, 241 Ariz. at 349 ¶ 26. Rather, the Constitution requires
only that the state reasonably could conclude that the risk of dangerousness
requires pretrial confinement of those who are determined to have likely committed
sexual assault. See, e.g., Smith, 538 U.S. at 103 ("The Ex Post Facto Clause does
not preclude a State from making reasonable categorical judgments that conviction
of specified crimes should entail particular regulatory consequences."); see also id.at
104 ("The State's determination to legislate with respect to convicted sex offenders
as a class, rather than require individual determination of their dangerousness," did
not violate the clause.).

¶47 Smith and related cases establish that a state may categorically regulate sex
offenders as a class for public safety purposes, both because of the uniquely horrific
nature of the crimes and sex offenders' propensity for recidivism. Indeed, while the
statute in Smith exposed all sex offenders to special burdens, the provision here
deals only with a particularly heinous and dangerous subcategory of sex offenders.
Nor does it amount to a substantial difference that Smith involved convicted sex
offenders, given that the bail exclusion here applies only to defendants who are
demonstrated at an adversarial hearing to have committed sexual assault by proof
evident or presumption great. As we noted in Simpson II,the procedure to determine
proof evident or presumption great is "robust," requiring a prompt and complete
adversarial hearing with specific factual findings in which "the state's burden `is met
if all of the evidence, fully considered by the court, makes it plain and clear to the
understanding . . . [and] dispassionate judgment of the court that the accused
committed'" the crime. 241 Ariz. at 346 ¶ 16(alteration in original) (quoting Simpson
v. Owens, 207 Ariz. 261, 274 ¶ 40 (App. 2004)).

¶48 The majority notes that Smith distinguished the earlier opinion in Hendricks,
supra ¶ 27, which upheld a statute requiring an individualized assessment of
dangerousness for involuntary civil commitment for sexual offenders who were likely
to recidivate due to mental abnormalities or personality disorders. Hendricks,521
U.S. at 350-52. The scheme at issue differed from the prohibition of bail here in two
crucial respects. First, it involved involuntary civil commitment after, and in addition
to, the criminal sentence. Id. at 351-52. Further, the period of involuntary
commitment was potentially indefinite. Id. at 364; see also Foucha, 504 U.S. at
83(striking down "indefinite detention of insanity acquittees" in the absence of
sufficient safeguards). As the Court observed in Smith, the "magnitude of the
restraint made individual assessment appropriate." 538 U.S. at 104.

¶49 In contrast to Hendricks, which exposed sex offenders to potentially indefinite


involuntary commitment after having fully served their sentences, the bail prohibition
here applies only to defendants who by proof evident and presumption great are
likely to have committed sexual assault and whose pretrial confinement will be only
temporary. It thus provides greater protection than the baseline requirement of a
probable cause finding for pretrial confinement upheld by the Supreme Court
in Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Additionally, the Arizona Constitution,
statutes, and rules guarantee a speedy trial. See Ariz. Const. art. 2, § 24
(guaranteeing the right of criminal defendants to speedy trial); A.R.S. § 13-114(1)
(same); see also Ariz. Const. art 2, § 2.1(A)(10) (guaranteeing the right of crime
victims to speedy trial); A.R.S. § 13-4435(A) (same); A.R.S. § 13-4435(D) (limiting
continuances to "extraordinary circumstances" and when "indispensable to the
interests of justice"). The Arizona Rules of Criminal Procedure prescribe time for
trials, including 150 days after arraignment for defendants in custody. Ariz. R. Crim.
P. 8.2(a)(1). Rule 8.6 provides that the court must dismiss any prosecution when it
determines that the applicable time limits are violated. Those protections ensure that
defendants adjudged by proof evident or presumption great to have committed
sexual assault will be subjected only to the pretrial detention necessary to protect
the public against dangerous criminal acts.

¶50 For all of those reasons, we conclude that the bail-exclusion provision here fits
comfortably within the Salerno framework. First, the provision applies to "a specific
category of extremely limited offenses." Salerno, 481 U.S. at 750. Indeed, it is far
more limited than the array of offenses for which bail was restricted in the law at
issue in Salerno. Id. at 747 (citing 18 U.S.C. § 3142(f), which includes crimes of
violence, offenses with a penalty of life imprisonment or death, serious drug
offenses, and certain repeat offenders)). Second, it is narrowly focused on
"preventing danger to the community," id. at 747, because it is limited to a crime that
the Supreme Court has recognized as particularly dangerous and whose
perpetrators are likely to commit similar crimes in the future, see, e.g., Smith, 538
U.S. at 103-04; supra ¶¶ 45-47. Third, like the "full-blown adversary" hearing
in Salerno, 481 U.S. at 750, pretrial detention in Arizona is preceded by a hearing
requiring not merely probable cause but proof evident or presumption great.
Although the Bail Reform Act at issue in Salerno included individualized
assessments of dangerousness, id., the nature of the crime here, as discussed
above, justifies categorical treatment so that an adversarial hearing regarding
probable guilt serves as an ample proxy for dangerousness. Fourth, the duration of
pretrial detention is limited by speedy-trial guarantees and rules. See id. at 747.
Finally, if any doubt exists that these safeguards "suffice to repel a facial challenge,"
the Court in Salerno admonishes that the protections sustained there are "more
exacting" and "far exceed what we found necessary to effect limited pretrial
detention" in other cases. See id. at 752.

¶51 Simpson II also suggests that the existence of less-restrictive alternatives may
demonstrate the bail exclusion is not narrowly focused in some instances. 241 Ariz.
at 349 ¶ 28. However, we emphasized that individualized determinations of
dangerousness are unnecessary if the crime is a convincing proxy for
unmanageable flight risk or dangerousness. Id. at 348-49 ¶ 26 (noting that
historically, bail is often denied categorically to capital defendants due to flight risk).
We expressly recognized that "certain crimes . . . may present such inherent risk of
future dangerousness that bail might appropriately be denied by proof evident or
presumption great that the defendant committed the crime." Id. at 349 ¶ 26. As
discussed above, the Supreme Court's decisions in Smith and McKunemake clear
that sexual assault is a uniquely grave and dangerous crime. The statutory definition
limiting sexual assault to nonconsensual acts narrowly focuses the bail exclusion to
an especially serious and inherently dangerous crime. The extensive safeguards
further ensure narrow focus and satisfy the Salernostandards. Indeed, we held
recently in Morreno that individualized dangerousness determinations are
unnecessary to categorically deny bail to felony defendants who are arrested
for any new felonies before trial. 790 Ariz. Adv. Rep. 24 ¶¶ 34-35. We therefore
conclude that the majority unnecessarily oversteps by concluding that federal
precedent compels it to invalidate a provision of our constitution.

¶52 If it is presented the opportunity to do so, we urge the Supreme Court to review
this decision. If we are correct that its precedents allow Arizona to deny pretrial
release to those who by proof evident or presumption great have committed sexual
assault, this Court has unnecessarily invalidated a part of our organic law. As a
matter of comity and federalism, we urge the Supreme Court to correct the error if
this Court has misread its precedents. In the meantime, with great respect to our
colleagues, we dissent.

GOULD, J., joined by LOPEZ, J., dissenting.

¶53 For the reasons set forth in my partial dissent in Morreno v. Hon.
Brickner/State, 790 Ariz. Adv. Rep. 24 ¶¶ 39-71, I also dissent from the majority's
decision today. Specifically, I conclude the sexual assault bond restriction contained
in article 2, section 22(A)(1), of the Arizona Constitution (and codified in A.R.S. § 13-
3961(A)(2)) is facially constitutional. Additionally, while I do not join in Justice
Bolick's dissenting opinion to the extent he applies the overbreadth analysis used
in Simpson II, I do join in his analysis and conclusion that the bond provision at issue
here is facially constitutional.

¶54 As it did in Simpson II, the majority abandons the facial standard set forth
in Salerno, 481 U.S. at 745, substituting the overbreadth standard used by the Ninth
Circuit in Lopez-Valenzuela, 770 F.3d 772. See Morreno, 790 Ariz. Adv. Rep. 24 ¶¶
39-45 (discussing Salerno's standard for facial challenges and Simpson II'sadoption
of the overbreadth standard used in Lopez-Valenzuela). Thus, applying Simpson
II's overbreadth standard, this Court strikes down yet another offense-based bond
provision. Now, the only remaining offense-based restriction is for capital offenses.
Undoubtedly, this provision cannot survive the majority's overbreadth test. See
Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 64, 67-68, 70 (discussing how offense-based
bond restrictions cannot survive the Simpson IIoverbreadth standard).

¶55 Here, like Simpson II, the majority contends that to be facially valid, sexual
assault must serve as a "valid proxy" for future dangerousness and "inherently
demonstrate[] that [an] accused will likely commit a new dangerous crime while
awaiting trial." See supra ¶¶ 20, 35. Thus, if there are instances where a defendant
charged with sexual assault might remain crime-free on pretrial release, the crime
cannot serve as a "valid proxy" for future dangerousness.

¶56 Not only does the majority's approach create an impossible standard for
"inherently dangerous" crimes, it essentially turns Salerno on its head. In contrast to
the majority approach, Salerno provides that "[t]he fact that the [act] might operate
unconstitutionally under some conceivable set of circumstances is insufficient to
render it wholly invalid." Salerno, 481 U.S. at 745. Thus, applying Salerno, the
subject provision survives a facial challenge because there are instances where a
defendant who commits sexual assault poses a danger to the victim or the
community. Indeed, as Justice Bolick notes in his dissent, the United States
Supreme Court has expressly recognized that sex offenders are a "serious threat" to
this "Nation," and that such offenders pose a risk of recidivism. See supra ¶¶ 44-46
(Bolick, J., dissenting). Admittedly, this does not mean that all sex offenders will
reoffend, or that even most will reoffend. But any offender charged with sexual
assault, when the proof of the offense is evident or the presumption great, inherently
presents a risk of danger to society, and the pronouncements of the United States
Supreme Court do show that at least some sex offenders almost certainly will
commit new crimes while on pretrial release. Under Salerno, this is sufficient to
survive a facial challenge. Supra ¶ 54.

¶57 In abandoning Salerno, the majority has effectively imposed a due process
requirement that all determinations denying pretrial release must include an
individualized determination of future dangerousness. There is, of course, no
authority for this requirement. Indeed, Salerno did not impose such a
requirement. See Morreno, 790 Ariz. Adv. Rep. 24 ¶¶ 59-62.

¶58 In response, the majority asserts that Morreno upheld a categorical bond
restriction that did not provide an individualized determination. Supra ¶ 32. While
true, Morreno addressed a bond restriction involving defendants who had already
been charged with a felony and, while on pretrial release, committed another felony.
Of course, preventing defendants from committing new crimes while on pretrial
release is the very objective the voters sought to achieve in passing the subject
bond provision, particularly when a defendant has been charged with a serious
crime such as sexual assault. Supra ¶¶ 4, 16.

¶59 Applying the Salerno standard, I would deny Goodman's facial challenge.
Following Salerno does not leave Goodman without a remedy. As I noted
in Morreno, he can assert that the sexual assault provision is unconstitutional as
applied to him. 790 Ariz. Adv. Rep. 24 ¶ 69. Therefore, I dissent.
MICHAEL KEVIN ADAMS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
No. 05-16-01361-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed May 24, 2018.

Brett Ordiway, Robert Udashen, for Michael Kevin Adams, Appellant.

John R. Rolater, Amy Sue Melo Murphy, for State of Texas.

On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause
No. 366-81115-2014.

Affirmed.

Before Justices Lang, Brown, and Whitehill.

Do Not Publish TEX. R. APP. P. 47.2(b)


MEMORANDUM OPINION
Opinion by Justice DOUGLAS S. LANG.

Following a plea of not guilty, appellant Michael Kevin Adams was convicted by a jury of
capital murder. The evidence in this case is extensive and complicated. However, a jury
heard the evidence and made its determination after being instructed not to consider "any
matters not in evidence before you." Punishment was assessed by the trial court at the
mandatory sentence of life imprisonment without parole. See TEX. PENAL CODE ANN. §
12.31 (West Supp. 2017).

In two issues on appeal, appellant contends (1) the evidence is not "legally sufficient to
show that [appellant] was the murderer" and (2) the trial court abused its discretion by
denying his motion to suppress the results of the inventory search of his vehicle. We decide
against appellant on his two issues. The dissent contends appellant was convicted based
upon speculation, not evidence. We disagree. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL CONTEXT


The indictment in this case alleged in part that on September 9, 2013, appellant intentionally
caused the death of the complainant, N.L., by shooting her with a firearm while "in the
course of committing or attempting to commit the offense of retaliation" against her.
A. Pretrial Motion to Suppress Results of Inventory
Search of Vehicle
Prior to trial, appellant filed a motion to suppress evidence found during a September 10,
2013 inventory search of his truck. In that motion, appellant contended the inventory search
(1) "was unlawful because it was not conducted in good faith, but was instead conducted as
a ruse to look for evidence of a crime"; (2) "was not conducted pursuant to a valid inventory
search policy"; and (3) "exceeded the scope of any inventory policy in effect."

At a pretrial hearing on that motion to suppress, Reuben Mankin testified he is employed as


a Texas Ranger with the Texas Department of Public Safety ("DPS"). On September 9,
2013, he was asked to assist in investigating the homicide in question. According to Mankin,
appellant became a suspect "right away" based on events that had occurred earlier in the
year involving him and N.L. After viewing the crime scene, Mankin drove to appellant's
residence in Frisco, Texas, to "establish surveillance."

At some point the following morning, Mankin observed appellant leaving his residence in a
white truck with no front license plate. Mankin contacted Frisco police officer Brian Sartain
to "get a traffic stop" based on the missing license plate. Mankin stated he was not
intending for appellant to be arrested on that license plate violation, but rather, his intent
"was for [appellant] to be stopped and for us to be able to approach him and talk to him
about [the homicide] on a voluntary basis." When the traffic stop was conducted, appellant
pulled into a parking space in the parking area of a McDonald's restaurant. At that point,
Frisco police arrested appellant for a "registration violation" and he was taken into custody
at that location.

Mankin stated that when he arrived at that location and learned of appellant's arrest, he
"knew that since [appellant] was placed under arrest that there was going to be an inventory
of his vehicle," "[p]er whatever Frisco policies were." Mankin told Sartain that if the police
saw anything related to the homicide during the inventory search of the vehicle, they were
to "back out" so a search warrant could be secured. Frisco police proceeded with the
inventory search of appellant's vehicle, but stopped when Sartain observed a small silver
screw in the "front area" of the vehicle. Mankin testified the screw found in appellant's
vehicle "appeared to be a grip panel screw" from the handle of a handgun. Mankin stated
that at that point, the vehicle was impounded and a search warrant was obtained. Appellant
was transported to the Frisco jail. On cross-examination, Mankin testified in part that when
he initially contacted police respecting the traffic stop, "[m]y goal was to bring [appellant] in
voluntarily and talk to him."

Sartain testified he is a patrol officer with the Frisco Police Department. He stated that when
he arrived at the scene of the traffic stop described above, other officers were "conversing
with the driver, getting him out of the vehicle." Sartain stated (1) police were not "searching
for evidence of a crime when the vehicle was impounded," (2) the "inventory process" in this
case was not "a ruse or some kind of trick to be able to find evidence in that truck without a
warrant," and (3) the purpose of inventorying a vehicle before impoundment is "[t]o log and
identify the contents of a vehicle for the safekeeping of property." Additionally, Sartain
testified (1) "Frisco Police Department policy" allows police the discretion to "either impound
the vehicle or not" when an individual driving a vehicle is arrested, and (2) he "typically"
impounds vehicles when he makes an arrest because "if the guy comes back and has to
stay in jail for a month," a vehicle parked in a parking lot can be "towed off by the property
management" or "broke into," or "the person may even claim that there were things taken
out of his vehicle and now I'm on the hook for that."

On cross-examination, Sartain testified in part (1) the impoundment in this case was
consistent with "the City of Frisco police policy" and (2) the arrest of appellant was "a high-
risk arrest" that "involved many officers," some with "weapons drawn," based on the fact
that appellant was "a person of interest or a suspect in a homicide." Further, Sartain was
asked on cross-examination, "As far as the vehicle being involved in any type of a crime
other than the display of no front license plate, there's no reason to believe that it was
involved in anything other than that offense, correct?" Sartain stated, "Yes, sir, as far as I
know."

Following the presentation of that testimony and arguments of counsel, [1] the trial court
denied appellant's motion to suppress the results of the inventory search of his truck.

B. Trial
The trial on the merits transpired over six days. Thirty-three witnesses testified. That
testimony is described below.

Scott Greer testified that at the time of the events in question, he was employed as a
detective with the Frisco Police Department. On March 6, 2013, he was assigned to
investigate a sexual assault involving N.L. Greer stated N.L. identified her assailant as
appellant, who was her former fiancé. N.L. told Greer that on March 4, 2013, she and
appellant were no longer engaged or dating. At approximately noon that day, she arrived at
appellant's house in Frisco to pick up some belongings. Appellant invited her to have lunch
with him and she agreed to do so. N.L. told Greer that after eating a few bites of the pasta
appellant served to her, she felt very tired and dizzy and surmised appellant had put drugs
in her food. Greer stated N.L. described to him a sexual assault by appellant that occurred
while she was under the effect of the drugs. N.L. was conscious, but was unable to "fight
him off" because she was drugged. Appellant took photographs of her during the sexual
assault. After that assault, she was handcuffed, "hogtied" with rope, and left naked for hours
on a blue tarp in appellant's garage. She passed out several times. At one point during the
night, appellant loosened the rope slightly and N.L. managed to run outside, still naked, and
reach a neighbor's house. She banged on the neighbor's door, but before anyone
answered, appellant caught her and tied her up again. She asked appellant whether he was
going to kill her and he said he did not know. Eventually, N.L. convinced appellant she still
loved him and would not go to the police if he released her. Appellant released her the
following day and she drove directly to the Frisco police station.

Greer testified appellant was arrested on March 6, 2013, and criminal charges were filed
against him. Also, police searched appellant's house and car and found evidence consistent
with N.L.'s account of the assault she described. Appellant posted bond in that case and
was released. Subsequently, appellant was indicted in that case on September 27, 2013.
Greer stated he resigned from the Frisco Police Department in approximately late
September 2013. He stated the reason he resigned was that during the investigation of
N.L.'s death, it "came to light" that he had conducted an "inappropriate relationship" with her
starting in June 2013, while the investigation of the sexual assault described above was
ongoing. Also, he conducted inappropriate relationships with several other women
connected to cases he was investigating. Greer testified he exchanged sexually explicit
emails with N.L., but they never had a physical relationship.

On cross-examination of Greer, numerous sexually suggestive and explicit email messages


between him and N.L. were admitted into evidence and published to the jury. Additionally,
Greer stated on cross-examination that in September 2013, the vehicle he was driving as
his personal vehicle was "a two-tone truck, maroon and beige," with "beige at the bottom."

According to Greer, on March 7, 2013, N.L. obtained an emergency protective order against
appellant that prohibited him from having any contact with her. On April 4, 2013, N.L.
reported to Frisco police that appellant had violated that protective order. Specifically, N.L.
told police her mail was stolen and appellant left a hand-written letter in her mailbox that
was not postmarked. The letter was signed by appellant and sprayed with his cologne. N.L.
told police she felt "terrified and harassed by the letter" and she and her son were trying to
"find shelter elsewhere." In June 2013, N.L. and her son moved from Frisco to Melissa,
which is approximately twenty miles from Frisco.

Sergeant A.J. Jumper testified he is a criminal investigator with the Collin County Sheriff's
Office. He stated that on September 9, 2013, he was called to investigate a crime scene at
3006 Maple in Melissa. He arrived at the scene shortly after 5 p.m. He took photographs of
the interior and exterior of the house at that location and collected evidence from the master
bedroom, where the body of N.L. was found. She had been shot twice in the head. She was
stretched out on the bed, naked from the waist down. Her underwear was around her right
ankle and the tank top she was wearing had been pulled up, exposing her chest. Jumper
testified he saw no sign of forced entry at the house.

Jumper stated the evidence he collected included, in part, (1) two condom wrappers that
were in the toilet in the master bathroom, (2) a green condom found in the wastebasket in
the master bathroom, (3) a yellow condom found wrapped in a towel in the master bedroom,
(4) two "spent" .22-caliber cartridge casings, one of which was found on the bed in the
master bedroom and one of which was found beneath that bed, and (5) swabbings from the
body of N.L. and various locations in the master bedroom and bathroom. That evidence was
sent to a Garland crime laboratory operated by DPS to be tested for DNA and other
substances. Also, N.L.'s bedsheet and clothing were sent to that lab for analysis.
Photographs taken by Jumper of the house and the evidence collected were admitted into
evidence and published to the jury.

According to Jumper, there was a substance that appeared to be blood on the rim of the
toilet bowl in the master bathroom and on the faceplate of the light switch located just to the
right of the doorway inside that bathroom. Jumper collected swabbings of that substance
and sent them to the Garland crime lab described above. Additionally, Jumper testified the
wastebasket in which the green condom was found was located next to the toilet in the
master bathroom. He testified the wastebasket was small and had "a plastic liner in it, kind
of like a garbage can liner." He stated that at the time he first saw the wastebasket, it was
more than halfway filled with trash. The edge of the green condom could be seen near the
top of that trash before any of the items of trash were moved. Photographs of the
wastebasket as it appeared before any of the items of trash were moved were published to
the jury.

Dr. William Rohr testified he is the medical examiner for Collin County. He stated he
performed an autopsy on N.L.'s body and determined her death was caused by "two
gunshot wounds to the head." On cross-examination, Rohr testified he "really can't tell" the
time of death. He stated N.L.'s body was found at 4:28 p.m. on the date in question.

N.L.'s son, Trey, testified he and N.L. moved in with appellant during the time N.L. and
appellant were engaged. He stated appellant was "obsessive-compulsive" and kept his
house "incredibly neat and orderly." Further, he stated appellant had an "obsession" with
N.L.'s body and kept a topless photograph of her on his nightstand with two candles next to
it.

Trey testified that on the date of the March 2013 sexual assault described above, he
received a text message on his phone that appeared to be from his mother. That message
stated she was "going to spend a few nights" with a man she had been seeing named
"Kevin" and if she did not respond to contact from Trey, it was because her phone battery
was almost dead. Trey testified he later learned from his mother that appellant had sent that
message from her phone.

According to Trey, he and his mother moved to Melissa in June 2013 "mostly to escape
[appellant]." Trey testified N.L. told him, "I know he's going to find me and I know he's going
to kill me." A "couple of weeks" before his mother's death, Trey found a "blue tarp with a set
of handcuffs on top" on the front porch of their house in Melissa. Based on what his mother
had told him, he knew those items were similar to items used in the sexual assault by
appellant. He stated that both he and N.L. were "fearful." Further, he testified that "closer to
September 9th," N.L. "was resigned that she was going to get killed by [appellant]" and "[i]t
was almost like she gave up."

Trey stated that at the time of his mother's death, he was a junior in high school. Before
leaving for school on the day of the murder, he went into his mother's bedroom and saw her
sleeping. He stated there was no one else in the house. He kissed N.L. on the forehead and
said, "Love you. See you when I get home." He stated she was "drowsy" and responded,
"Bye. I love you." Trey left the house through the front door at approximately 8 a.m. and
locked that door. He testified he arrived home from school at approximately 4:30 p.m. Trey
stated he believes the front door was unlocked. He entered the house and called to his
mother. When she did not answer, he assumed she was sleeping. He went to her bedroom
and found the door locked. He "peeked under the door" and "saw her foot hanging off the
bed." Then, he picked the lock and discovered his mother's body as described above. He
ran outside and called 9-1-1.

Michael Groettum testified he is a police officer with the City of Melissa Police Department.
He testified that following the death of N.L., he obtained phone records pertaining to a cell
phone number registered to appellant. Groettum stated those records showed six phone
calls on September 9, 2013, with the first occurring at 11:13 a.m. in Frisco. Groettum
"mapped" the locations of the "cellular towers" linked to those calls and concluded there
was not any time that day "where [appellant's] phone was hitting off of the cell tower that
was closest to [N.L.'s] home in Melissa." Additionally, Groettum testified he "made the
observation that [appellant's] phone was used 9 times in the 11 days prior to September
9th," which Groettum stated "[l]ed me to believe that there could possibly be another cellular
phone."

Teresa Sauceda testified that at the time of the homicide in question, she was employed at
Southwest Collateral Recovery, which provides assistance in the repossession of motor
vehicles. One of her coworkers was appellant, who was the company's office manager at
that time. She stated she and appellant had a "friendly working relationship." Sauceda
testified that on Friday, September 6, 2013, she was in appellant's office and saw him
looking at a photo of N.L.'s face on his phone.

Mankin testified that when he arrived at N.L.'s home on the date of the homicide in
question, other law enforcement officers were already present. He stated (1) the yellow and
green condoms described above "matched up" with the two condom wrappers found in the
toilet and (2) the "edge of the green condom" can be seen in the photographs of the
wastebasket taken before any of the items of trash inside were moved.

Additionally, Mankin described the inventory search of appellant's vehicle and testified that
on that same date, he and other law enforcement officers conducted a search of appellant's
residence. Numerous miscellaneous items related to firearms, including several empty gun
cases, were found at appellant's home. However, no firearms were found. Mankin stated
appellant was a "licensed federal firearms dealer," but "had been ordered to get rid of his
guns because of that protective order" obtained by N.L. in March 2013. On a shelf inside
the master bedroom closet, a packet containing "developed photographs" was found. One
of those photographs showed two .22-caliber firearms, both of which were "suppressed."
Mankin testified suppression "muffles out the sound of the firearm."

According to Mankin, a "lot of people" were interviewed by the law enforcement officers
investigating this case in an effort to determine the source of "unaccounted-for" male DNA
found at the crime scene. He stated N.L. worked at a "gentlemen's club" and police
investigated men who were "closely associated with her" through that job and "would have
contact with her." Mankin testified all of those men were "eliminated" because their DNA
"did not match" that collected at the crime scene.

Mankin stated appellant gave a voluntary statement to police respecting his whereabouts on
the date of N.L.'s death. According to Mankin, appellant stated he woke up at approximately
9:15 a.m. that day and went for a two-mile walk, then took a shower and trimmed bushes in
his yard. Also, appellant "went into vivid details about exactly what he did after noon."
Mankin stated police were unable to "corroborate anything that he said about what he did
with his morning."

Additionally, Mankin met with appellant's ex-wife, Gina Noble, and her attorney. On
September 27, 2013, Noble gave written consent for a search of a storage unit leased by
her. In that storage unit, Mankin found firearms, ammunition, and firearm accessories,
including a silver gun case that "resemble[d] the case that's in the photograph that we saw
that contained the two firearms at [appellant's] residence." The gun case in the storage unit
contained miscellaneous firearm accessories, including one suppressor, but did not contain
the .22-caliber guns pictured in the photograph.

Mankin testified that during his investigation of N.L.'s death, he learned that at the time of
the events in question, the house where N.L. lived had been undergoing painting and
remodeling by contractors. Several days after the shooting, the contractors informed police
that the lock on one of the windows in the master bedroom was not secure because "[t]he
screws had been taken out." Mankin stated that at the time he viewed the crime scene on
the date of the shooting, the windows were covered from the inside by "sheeting material"
that was stapled to the interior window sills. Further, he stated (1) the sheeting material
would "have to be disrupted" in order for someone to get in or out of a window and (2) there
was no indication that the sheeting material was "untacked" when he saw the crime scene
on the date of the shooting.

Additionally, Mankin stated his investigation revealed emails between N.L. and Greer that
showed Greer's inappropriate relationship with N.L. Mankin stated Greer told him he had
visited N.L.'s house in Melissa twice, once in July and once in August. Also, Mankin stated
Greer's timesheets showed that starting at 8:15 a.m. on the date of the shooting, he was
working at a school in Frisco.

On cross-examination, Mankin testified (1) footage from a video surveillance camera at a


Home Depot store in Frisco shows appellant in that store at approximately 1:30 p.m. on the
date of the shooting, (2) a receipt provided by appellant shows he made a purchase at
approximately 1 p.m. that day at a Bath & Body Works store in Frisco, and (3) neighbors of
appellant saw him working in his yard that afternoon. Also, Mankin stated that when he
visited the crime scene on the date of the shooting, he did not examine the windows in the
master bedroom or try to look behind the sheeting material on those windows. Additionally,
Mankin stated (1) analysis of vaginal swabbings of N.L. showed a DNA profile that was
interpreted as a mixture of the DNA of N.L. and one unknown male; (2) analysis of anal
swabbings from N.L. showed a DNA profile that was interpreted as a mixture of the DNA of
N.L. and one unknown male; and (3) swabbings from the inside of the yellow condom
showed DNA that originated from a single unknown male.[2]The individuals "excluded" as
contributors respecting that DNA included appellant and Greer. Further, Mankin stated (1)
the green condom described above was partially "inside out" when it was found, and thus
the surface of the condom facing outward when it was found was actually the interior portion
of the condom; (2) analysis of the outward-facing surface of the green condom showed
DNA that was "interpreted" as a mixture of that of the victim and either two or three other
individuals; (3) DNA of "epithelial cells" found on the outer-facing surface of the green
condom "comes back to [appellant]" and thus he is one of those two or three other
individuals; (4) DNA analysis showed it was "inconclusive" whether Greer or any of six other
men identified by police who were associated with N.L. could be contributors respecting the
other DNA on the outward-facing surface of the green condom; (5) DNA on the inward-
facing portion of the green condom was interpreted as a mixture of that of N.L. and two
males, neither of which was appellant or Greer, and (6) the fact that the DNA testing of
evidence at the crime scene, including the inward-facing portion of the green condom, was
"inconclusive" as to N.L.'s son was not surprising to Mankin because "he's living in the
house so he's coming into contact with things that may have done that," such as bedding or
"something in the trash." According to Mankin, (1) the "DNA findings" of "epithelial cells from
a condom found in the trash can that came from [appellant]" "would put [appellant] at the
crime scene" and (2) he rejected "the idea that [appellant's] DNA might be there as a result
of cross transference" because "[appellant and N.L.] had been away from each other for
hundreds of days at that point" and the wastebasket "had what appeared to be fresh trash
in it, so there was no good reason for his DNA to be there."

Also, counsel for appellant asked Mankin whether he formed a theory about the "time frame
as to when this occurred." Mankin testified (1) "there's a strong possibility" N.L.'s sexual
encounter from which the evidence described above resulted "could have happened early
that morning" after Trey left for school; (2) also, there was "a possibility" it could have taken
place prior to that time; (3) the medical examiner is "not putting a time frame as to when [the
shooting] occurred"; and (4) Mankin's theory is that the sexual encounter and murder "did
occur in the morning hours just before noon." Further, Mankin stated (1) Trey gave a
statement in which he said that on the night preceding N.L.'s murder, he slept on a couch in
the living room; (2) the living room is located such that "somebody [would] have to walk past
him to get to the bedroom"; and (3) Trey did not report seeing any men entering N.L.'s
bedroom on the night of September 8 or the morning of September 9.

Kimberlee Mack testified that at the time of the events in question, she was a DNA analyst
with the DPS crime lab in Garland. She analyzed DNA samples pertaining to the sexual
assault and homicide described above and prepared reports summarizing her analyses.
Mack stated that on the "outside" of the green condom, she found a mixture of DNA from
N.L., appellant, and an unknown "additional contributor." Further, Mack (1) stated epithelial
cells are skin cells and can be "separated out" from other types of cells, such as sperm, and
(2) described the process and procedures she used to analyze the DNA in question.

On cross-examination, Mack testified (1) the DNA from the March 2013 sexual assault
described above was not analyzed until after the September 2013 homicide occurred; (2)
the presence of a person's DNA in a location "doesn't mean that person was there" or "tell
us how it got there"; (3) it is possible DNA can be "picked up" by items that touch it and
deposited from those items onto other surfaces; (4) depending on variables such as
temperature, DNA can remain on an item "years and years after it was left there"; and (5)
contamination of DNA from one case with DNA from another case can occur in a lab.

Melissa Haas testified she is the DNA section supervisor with the DPS crime lab in Garland.
She stated that on October 16, 2013, there was an incident at the lab "in which some
samples with regard to this case were destroyed." Specifically, according to Haas, "while a
batch of samples was placed on the robotic platform for extraction, the deep-well
processing plate was inadvertently left off of the platform" and "instead of the DNA extracts
going into this plate, they actually were disbursed over the deck of the instrument." As a
result, the swabbings described above from the rim of the toilet bowl and the faceplate of
the light switch in the master bathroom were "lost." Further, Haas stated that immediately
after that incident, the robotic platform and surrounding area were decontaminated and she
is "confident" future samples processed with that same instrument were not contaminated.
On cross-examination, Haas testified lab records show that on September 23, 2013,
evidence from each of the two cases described above, including the green condom, was
examined by the same forensic biologist at the lab. The lab records do not show what time
the examination of each piece of evidence was conducted. Haas stated (1) based on
laboratory protocols, "[n]o cases are to be out at the bench at the same time" and (2)
pursuant to lab policy, the work area would have been decontaminated before starting any
work pertaining to the second case.

Christie Cheng testified she is the forensic biologist who examined evidence from both
crimes described above at the DPS crime lab on September 23, 2013. She stated (1) "a
hundred percent of the time" she follows the lab policy of "opening up" only one item at a
time; (2) "before opening another item, we will seal the item, bleach the bench top, change
out paper, change gloves before proceeding to the next item"; and (3) on September 23,
2013, she did not leave one item open and then open up another item from another case at
the same time.

Amber Moss testified she is a forensic scientist at the DPS crime lab in Garland. In 2016,
she performed a "re-analysis and re-interpretation" of the evidence from both crimes
described above, using "newer techniques" than were used in the original analyses. Moss
testified that although the analysis of the DNA on the outward-facing surface of the green
condom "looked like it was potentially a three-person mixture," it "possibly is a four-person
mixture" and "we don't know which it truly is." She stated that, regardless, her testing
indicated N.L. and appellant are two of the persons whose DNA is in that mixture.

Richard Gary Cox testified he is N.L.'s father and lives in Florida. He stated that in mid-
August 2013, N.L. and Trey came to stay with him for a week because N.L. was "getting
concerned" about "problems she was having with the assault charge and rape charge." N.L.
told him the person who raped her was appellant. Further, Cox stated N.L. told him (1)
appellant "had called her up and said, `You better not testify or I'll kill you, bitch. You won't
live,' that kind of statement, several times"; (2) she was "scared to death" because appellant
had "found her" and left a tarp and handcuffs on her porch; (3) appellant had told her that
he "works with the police all the time" in doing vehicle repossessions and he "knows their
ins and outs" and "they can't do shit"; and (4) she believed appellant was going to kill her
and told Cox "[i]t's obvious that they can't protect me."

Adam Unnasch testified that at the time of the events in question, he was a research
specialist with DPS. He stated that in connection with the investigation of the homicide in
question, he analyzed cell phone records from April 2013 through September 2013 for a cell
phone associated with appellant. Unnasch testified the records showed (1) appellant did not
use his cell phone at all for calls or text messages on Saturday, September 7, 2013, and
Sunday, September 8, 2013, and (2) on Monday, September 9, 2013, appellant did not use
his cell phone prior to 11:13 a.m.

Chris Meehan testified he is an investigator for the Collin County Sheriff's Office and
specializes in computer forensics. He stated that in connection with the homicide
investigation in question, he examined the "Internet search history" for appellant's
workplace computer. According to Meehan, between September 1, 2013, and September 6,
2013, multiple searches were conducted on that computer under appellant's user name for
GPS coordinates that corresponded to the location of N.L.'s home and areas within
approximately one mile of that location.

After the State rested its case, appellant moved for a directed verdict. That motion was
denied by the trial court. Then, the defense called several witnesses.

Jonathan Chase Simmons testified that on the date of the shooting in question, he was a
sophomore in high school and lived next door to N.L.'s home. At approximately 8:15 that
morning, as he was pulling out of his driveway to go to school, Simmons saw a vehicle he
had never seen before parked outside of N.L.'s home. According to Simmons, the vehicle
was "a slightly older model truck" with a "red over/white under paint job." Simmons testified
there was a person in the driver's seat who "appeared to be trying to recline or slink down"
in order to "keep from being seen in the truck." Simmons stated he could not see that
person's face. Additionally, Simmons testified there was a metallic sunshade in the front
windshield, which seemed "odd" to him because the truck was "facing the opposite direction
of the sun."

Robert Aguero testified he is the owner of a business that performs cell phone forensics and
cell tower data analysis. He stated he analyzed the cell phone records of appellant from
April 2013 through September 2013. According to Aguero, (1) "[o]ut of those 162 days, 72
of those dates there were either no phone calls made whatsoever or there were no calls
made prior to 11 a.m." and (2) "in essence, 44 percent of the time there were no calls prior
to 11 a.m."

Steven Alexander testified that on the date of the shooting in question, he lived in a house
that was "one behind and three down" from N.L.'s home. At approximately 1:30 p.m., he
was upstairs in his house and heard two loud "boom sounds" about five to eight seconds
apart. He stated his first thought was that "it sounded like a gun." He testified he has "a
habit of putting things in my phone when something odd happens" in order to "make a note
of it" and he did so at that time. Further, he stated there was construction going on "to the
addition behind us" that sometimes involved loud banging noises, but the sound he heard
"was just a louder, different, deeper sound." On cross-examination, Alexander testified that
when he was interviewed by a deputy about the noises in September 2013, he (1) told them
he assumed the noises were from construction close to his home and (2) did not say
anything to the deputy about gunshots.

Kyle Babcock stated he is the captain of the City of Melissa Police Department and was the
lead investigator in the homicide case in question. He testified in part (1) DNA "can get on
an object in a lot of different ways"; (2) appellant and N.L. "stay[ed] at each other's homes"
during the time they dated and it is possible "[appellant's] DNA would be on some of [N.L.'s]
items"; (3) the green condom in the wastebasket described above was visible before any
other items were removed and was "right on top of the . . . fresh trash"; (4) he believes
N.L.'s sexual encounter that resulted in the evidence described above happened either after
Trey left for school "[o]r the previous day"; and (5) he spoke with the deputy who
interviewed Alexander about the sounds he heard and "we believed what he heard at the
time was construction noises from the subdivision being built behind [N.L.'s] residence." On
cross-examination, Babcock testified (1) the fact that the green condom "was found toward
the top of the trash" and "the wrapper for that condom [was] in the toilet water" indicated to
him that the amount of time the condom had been there was "[n]ot long"; (2) that condom is
"the one thing that has [appellant's] DNA on it"; and (3) dove hunting season begins on
approximately September 1 each year and a shotgun blast from a dove hunter "would carry"
from nearby farmland areas and be audible in the neighborhood where N.L. lived.

Dr. Greg Hampikian testified he is a biology professor at Boise State University and does
"private DNA consulting." He stated that through "transfer," it is "possible for DNA from
someone to appear in a location where that person has never ever been." Additionally, he
testified in part as follows:

Q. Now, the idea of transfer from something at the crime scene, for example, like a
bedsheet that had been shared by two individuals sometime in the past, and a DNA sample
collected from that bedsheet sometime in the future, is it—it is possible that DNA can stay
around for a long time on like a sheet or something like that?
A. Yeah. I mean, I have—so I have casework that's, as I said 20, 30 years old. DNA does
stay around. Now, if something is washed in really good detergent and bleach, you're
probably going to get rid of most of the DNA. That doesn't mean it might not show up by the
time you get it to the lab. It might touch the washing machine on the way out where some
dirty clothes hit the rim and your clean sheet hits it. It's very hard to keep things completely
free of DNA even in the lab where we're scrubbing and we're spraying bleach, et cetera. But
that's not to say that it doesn't decrease with washing.
....
Q. All right. Ask you to assume something in regards to the trash can. That it had been used
over a period of time that included a time period when the homicide occurs and included a
time period before that when two people use the same trash can. Is there a likelihood or is
there ability for DNA to have survived in a trash can and then it to be transferred to an item
that later gets in the trash can?
....
A. Yeah, I mean, in bedrooms and bathrooms and just common sense that's where we put
a lot of our biological material. So if you have a sexually active couple, there are 360 billion
sperm cells in an ejaculate. Not all of them walk out of that room. Some of them end up on
sheets, some of them end up on Kleenex, some of them end up on condoms. And so
certainly bedrooms and bathrooms, we see a lot of biological staining in baskets. . . . Not
many of us bleach our garage [sic] receptacles and if you have a wet stain and if it has
blood or saliva or semen or mucus on it, it transfers quite easily. We've all seen wet tissue
stick to a surface. So there's a lot of transfer that would occur in garbage cans, particularly
those that are in bedrooms or bathroom.
During closing argument, the State argued on rebuttal, in part,
You heard Ranger Mankin talk about the screw. He looked down in the truck and he sees
what he recognized to be a grip screw from a gun. Now, this button down, cover your
tracks, [sic] took his weapon apart after the murder. The truck is pristine, but he made a
mistake and dropped one screw when he was disposing of that weapon.
Appellant objected to that argument on the ground that the prosecution was "arguing facts
not in evidence." That objection was overruled by the trial court. Following the jury's verdict
and the assessment of punishment as described above, this appeal was timely filed.

II. SUFFICIENCY OF THE EVIDENCE


A. Standard of Review
We apply Jackson v. Virginia, 443 U.S. 307 (1979), as the standard for reviewing the
sufficiency of evidence. See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
"In determining whether the evidence is legally sufficient to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences therefrom, a
rational fact finder could have found the essential elements of the crime beyond a
reasonable doubt." Id. (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011)); see also Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("When
conducting a sufficiency review, we consider all the evidence admitted, whether proper or
improper."). Further, when viewing the evidence in the light most favorable to the verdict,
"the reviewing court is required to defer to the jury's credibility and weight determinations
because the jury is the sole judge of the witnesses' credibility and the weight to be given
their testimony." Winfrey, 393 S.W.3d at 768 (citing Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010)).

We permit juries to draw multiple reasonable inferences from facts as long as each is
supported by the evidence presented at trial. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). The jury is not permitted to draw conclusions based on speculation
because doing so is not sufficiently based on facts or evidence to support a finding beyond
a reasonable doubt. Id. "[A]n inference is a conclusion reached by considering other facts
and deducing a logical consequence from them." Hooper v. State, 214 S.W.3d 9, 16 (Tex.
Crim. App. 2007). "Speculation is mere theorizing or guessing about the possible meaning
of facts and evidence presented." Id. When the record supports conflicting inferences, we
presume the jury resolved the conflicts in favor of the verdict and defer to that
determination. Merritt, 368 S.W.3d at 525-26.

Circumstantial evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13.
"In circumstantial evidence cases, it is not necessary that every fact and circumstance
`point directly and independently to the defendant's guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating
circumstances.'" Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.
2013) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Although
motive and opportunity are not elements of murder and are not alone sufficient to prove
identity, they are circumstances indicative of guilt. Id. at 360.

B. Applicable Law
Section 19.03(a)(2) of the Texas Penal Code provides in part that a person commits capital
murder if he intentionally commits murder in the course of committing or attempting to
commit retaliation. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2017). A person
commits murder if he "intentionally or knowingly causes the death of an individual." Id. §
19.02(b)(1).

C. Application of Law to Facts


In his first issue, appellant asserts the evidence is insufficient to prove beyond a reasonable
doubt that he murdered N.L. According to appellant,

[M]otive and opportunity are not sufficient to prove guilt. And in [this] case, the State's only
other evidence—touch DNA from [appellant] that may or may not have been left in [N.L.'s]
home the day of her murder, and a screw found in [appellant's] truck that may or may not
have come from a gun—doesn't make up the difference. Only by speculation can [appellant]
be identified as the murderer.

Specifically, appellant contends (1) while the State "focused most" on "touch DNA matching
[appellant] found on a condom in [N.L.'s] bathroom trash can," "a different man's DNA was
found inside the condom, and none of the many other samples found in the home matched
[appellant]"; (2) in light of the evidence that appellant was "obsessive-compulsive" and
"incredibly neat and orderly," it is "far more likely that [appellant's] touch DNA landed on
another man's used condom by transference, or contamination"; and (3) "[appellant] lived
with [N.L.] when they were engaged to be married" and "[appellant's] DNA could have
lingered in the trash can or it could have lingered on the complainant's bedsheets,
transferring to the condom there." Additionally, in his reply brief in this Court, appellant
asserts in part (1) "a witness saw a truck in front of the complainant's home that matched
that of disgraced former Detective Scott Greer"; (2) "[N.L.'s] neighbor heard two loud
`booms' at a time when [appellant] had an alibi"; and (3) "the State ignores the very nature
of transference; just as [appellant's] touch DNA could have transferred from the
complainant's bedsheets to a used condom, it could have transferred from something else
to the bedsheets." In support of his arguments, appellant cites Winfrey, 393 S.W.3d at
763, and Ingerson v. State, 508 S.W.3d 703 (Tex. App.-Fort Worth 2016, pet. granted), both
of which are capital murder cases in which the jury's verdict was reversed on appeal based
on insufficient evidence.

The State argues that "[a]lthough the evidence was circumstantial, the combined and
cumulative effect of the incriminating evidence pointed to [appellant's] guilt," and "[t]hus, a
rational trier of fact would have found guilt beyond a reasonable doubt." Specifically, the
State asserts, "The victim expressed concern that [appellant] was going to kill her because
she reported the sexual assault, DNA evidence connected [appellant] to the victim's home
where she had moved in an effort to hide from [appellant], [appellant] had tracked the victim
to that home, and [appellant] had photographs of and an empty case for handguns like that
used to kill the victim."

In Winfrey, a murder victim was found in his home with numerous stab wounds and multiple
blunt-force injuries. See 393 S.W.3d at 764. Megan Winfrey attended the high school where
the victim worked and was acquainted with him. After an investigation that included dog-
scent lineups, Winfrey and her father and brother were charged with the murder. Id. at 765.
A jury convicted Winfrey of "capital murder during the course of robbery" and "conspiracy to
commit capital murder." Id. The trial court's judgment was affirmed by the court of
appeals. Id. However, the Texas Court of Criminal Appeals reversed the court of appeals
and rendered acquittals on both counts. Id.

In her appeal to the court of criminal appeals, Winfrey argued that unless the dog-scent
lineup evidence was treated as "primary evidence," there was "no evidence which
implicates [Winfrey] in this murder either directly or by application of the law of
parties." Id. at 767. The court of criminal appeals stated in part (1) in a prior opinion
respecting Winfrey's father's involvement in the same murder, "[w]e concluded that dog-
scent lineups, `when used alone or as primary evidence, are legally insufficient to support a
conviction,'" id. at 768 (quoting Winfrey v. State,323 S.W.3d 875, 884 (Tex. Crim. App.
2010) (hereinafter "Richard Winfrey")); (2) although dog-scent lineup evidence "is properly
considered in a review of the sufficiency of the evidence," the role of such evidence "is
merely supportive," id. at 770; and (3) "[w]e do observe that the dog-scent lineup evidence,
with the dog alerting to [Winfrey's] scent on [the victim's] clothing, simply indicates that
[Winfrey] had had some contact with [the victim's] clothing, although the timing,
circumstances, and degree of that contact cannot be determined," id. at 768. Then, that
court conducted a review of "all of the evidence in the light most favorable to the verdict,"
with the dog-scent lineup evidence being "`merely supportive' of the remainder of the
evidence." Id. at 770.

The evidence considered by the court of criminal appeals included testimony that (1)
"[Winfrey] believed that [the victim] had money in his home, and she wanted it"; (2)
Winfrey's father related specific information about the murder to his jail cell-mate, Campbell,
including that one of the father's children had let the father into the house, that the victim
had been stabbed repeatedly, and that guns had been stolen from the house, "whereupon
law-enforcement officials, who had not known that guns were missing, then talked to [the
victim's] relatives and confirmed that guns were missing"; (3) "when [Winfrey] heard that her
brother had been arrested for the murder, she asked her boyfriend to take her to her ex-
husband's house, allegedly to discuss their daughter, but instead discussed only a possible
alibi for the night of the murder"; (4) "after her ex-husband was subpoenaed, [Winfrey]
called his mother to find out if he was going to testify"; (5) "when [Winfrey] learned that law-
enforcement personnel had found a pubic hair at the crime scene, she shaved herself,
allegedly to prevent the taking of a sample of her pubic hair"; (6) "[Winfrey] told her
boyfriend that she went to [the victim's] house because `it was an easy lick,' which the
boyfriend construed to mean [Winfrey] thought she would get money"; and (7) "there was a
drop of blood underneath and a drop on top of the overturned vacuum cleaner in the
closet," which the State suggested "allowed the trier of fact to `draw the inference that these
drops and their positioning could have occurred when the murderer was in the closet taking
the guns and looking for items to steal.'" Id. at 770-71.

The court of criminal appeals stated that evidence appeared "more speculative than
inferential" as to Winfrey's guilt because (1) "[Winfrey's] expression of knowledge that [the
victim] had money in his home that she wanted and that she went to his house because `it
was an easy lick' does not reveal any action on her part to actually kill [the victim] and take
his money, and it is even less incriminatory when we consider that the police investigation
was unable to determine that any money had been taken from [the victim] during the course
of the murder"; (2) Campbell did not state which one of the Winfrey children had purportedly
let Winfrey's father into the house and did not "specifically inculpate [Winfrey]"; (3)
Campbell's testimony included repeated assertions that Winfrey's father had described to
him "how the victim's penis had been cut off and `crammed into' the victim's mouth," and
"[i]f that claim had been fact, it surely would have been noted by the medical examiner, but
was not"; (4) there was "no evidence indicating when and under what circumstances" the
victim's guns were removed from his home or that such guns were removed during the
course of the murder; (5) "[t]he evidence of [Winfrey's] shaving of her pubic hair seems
much less significant in light of her unchallenged testimony that she regularly shaved it, her
later provision of the requested sample, and the determination that her hair did not match a
hair recovered from the scene"; (6) "we do not perceive any indicia of guilt" from "simply
discussing a possible alibi for the time of the murder" or "in [Winfrey] contacting her ex-
husband's mother to determine whether he was going to testify at trial"; and (7) "[t]he state's
suggestion of an appropriate inference drawn from blood drops on the vacuum cleaner
supports no connection to [Winfrey] at all because the DNA of those blood drops did not
match any of the Winfreys." Id. at 771-72. Further, that court stated "[b]asing a finding of
[Winfrey's] guilt on this evidence and all of the other evidence is, at best, `mere theorizing or
guessing' about [Winfrey's] possible guilt rather than a reasonable inference based upon
evidence and facts presented." Id. at 772. The court of criminal appeals concluded, "After
reviewing all of the evidence in the light most favorable to the guilty verdict, we hold that the
evidence merely raises a suspicion of [Winfrey's] guilt and is legally insufficient to support a
conviction of capital murder beyond a reasonable doubt." Id. at 772-73.

In Ingerson, the bodies of two murder victims, Robyn Richter and Shawna Ferris, were
found in Richter's SUV in a restaurant parking lot. See 508 S.W.3d at 731. Each victim had
a single gunshot wound to the head. Id. Fred Ingerson, who was acquainted with both
victims, was charged and convicted of capital murder. Id. On appeal, the State contended
the following "items of evidence" established guilt beyond a reasonable doubt: (1) Ingerson
was romantically interested in Richter, but Richter had "disingenuous feelings towards him"
and "was using Ingerson's feelings for her own financial gain"; (2) Ingerson's presence at
the location and time of the murders; (3) Ingerson's ownership of a gun of the same make
and caliber as the murder weapon; (4) the presence of a gun under the driver's seat in
Ingerson's vehicle the day after the murders; (5) the presence of gunshot residue under the
driver's seat of Ingerson's car and on the pants Ingerson wore the night of the murders; (6)
Ingerson's alleged "suspicious activity" following the murders; and (7) "incriminating
statements" by Ingerson to police and others. Id. at 732.

The court of appeals reasoned in part (1) the evidence showed only a "friendly" relationship
between Ingerson and Richter and "[n]o evidence supports the State's contention that
Ingerson was driven to murder because he was offended by Richter's conduct towards
him"; (2) Ingerson's presence outside the restaurant and being the last person seen with
Richter and Ferris "without more, is insufficient to sustain a conviction as a party to the
offense"; (3) testing "definitively ruled out any Smith & Wesson as the murder weapon," but
showed the murder weapon could have been a Colt revolver; (4) "the State itself
established that the .38 Colt bobbed-hammer pistol once owned by Ingerson was not the
murder weapon"; (5) because the witness who saw a gun in Ingerson's vehicle originally
testified it was a Smith & Wesson that had a "hammer," then stated a year later that the gun
was a Colt "bobbed-hammer" pistol, that testimony "fall[s] short of proof beyond a
reasonable doubt that the murder weapon was under the seat of Ingerson's car" on the date
of the murders; (6) the gunshot residue in Ingerson's car and on his pants could be
explained by the presence of a gun in his vehicle and "was not directly linked in any way to
the murders"; and (7) although Ingerson was "confused as to the time that he actually left
[the restaurant] because he believed that the bar had closed at 11 p.m. instead of midnight,"
"[t]hat confusion falls short of being incriminatingly suspicious activity." Id. at 732-35. That
court stated, in summary, (1) "[t]he sole and only fact proven by the State beyond a
reasonable doubt is that Ingerson was the last person seen at Richter's vehicle" and (2) the
State's other items of evidence "amount to speculation and are not grounded in facts." Id. at
736. Then, that court concluded that after reviewing all the circumstantial evidence and any
reasonable inferences supportable from that evidence, the evidence was insufficient to
support Ingerson's conviction. Id.

Unlike Ingerson, the case before us includes (1) evidence of motive, (2) evidence of threats
and tracking by appellant, and (3) touch DNA of appellant at the crime scene. Also, unlike
in Ingerson, neither of the .22-caliber firearms shown in the photograph found in appellant's
home was excluded as the murder weapon. Therefore, Ingerson is distinguishable from the
case before us.

Further, Winfrey did not involve touch DNA evidence, but rather dog-scent lineup
evidence. See 393 S.W.3d at 767. The court of criminal appeals's conclusion
in Winfrey was based on its prior opinion in Richard Winfrey, which case "pertain[ed] to
canines used to discriminate among human scents in order to identify a specific person in a
lineup" and presented the question of "whether dog-scent lineup evidence alone can
support a conviction beyond a reasonable doubt." Richard Winfrey, 323 S.W.3d at 883,
884-85. Specifically, Richard Winfrey involved a scent lineup conducted nearly three years
after the victim's murder that compared "scent samples" from clothing the victim was
wearing at the time of his death to samples from six individuals. Id. at 877.

As described by the dissent in the case before us, the court of criminal appeals stated
in Richard Winfrey that because scent transfers with ease from one person or object to
another, "the dog-scent lineup proves only that appellant's scent was on the victim's
clothes, not that appellant had been in direct contact with the victim."[3] Id. at 881-82. The
dissent states, "Accordingly, the court of criminal appeals concluded that there was legally
insufficient evidence to support Richard's conviction because even a strong suspicion of
guilt is insufficient to convict." However, contrary to the dissent's description of Richard
Winfrey, the analysis in that case did not end with the court's statements respecting
transference. Rather, the court of criminal appeals also stated in part (1) Richard "did not
match the DNA profile obtained from the crime scene" and (2) a deputy who testified for the
State "recognized the limits of the scent lineup in his testimony when he stated that: `We
never convict anybody solely on the dog. It is illegal in the State of Texas. . . . You cannot
convict solely on the dog's testimony.'" Id. at 882. Further, the court of criminal appeals
specifically summarized the evidence as follows: "At most, the evidence here shows: (1)
appellant indicated [during a pre-arrest interview by law enforcement officers] that he
believed he was the number one suspect in a murder investigation; (2) appellant shared
information with [his jail cellmate] that appellant claimed to have heard about the murder;
and (3) appellant's scent was on the victim's clothes." Id. Additionally, the dissent entirely
omits any mention that the court's analysis in Richard Winfrey also addressed "the science
underlying canine-scent lineups," which "has been questioned." Id. at 882. In reaching its
conclusion that "dog-scent lineup evidence alone" is insufficient to establish a person's guilt
beyond a reasonable doubt, the court of criminal appeals stated in part that while "[i]n
thousands of cases, canines and their handlers have performed with distinction," "we
acknowledge the invariable truth espoused by [U.S. Supreme Court] Justice Souter that
`[t]he infallible dog, however, is a creature of legal fiction.'" Id. at 883-84.
Unlike Winfrey and Richard Winfrey, the case before us does not involve a conviction
supported solely by dog-scent lineup evidence. Therefore, we do not
find Winfrey or Richard Winfrey instructive. See id.

As the dissent points out, the touch DNA evidence in the case before us does not show the
"timing, circumstances, and degree" of contact from which that evidence
resulted. See Winfrey, 393 S.W.3d at 768. However, as described above, the record shows
(1) appellant was not indicted for the March 2013 sexual assault of N.L. until September 27,
2013; (2) in June 2013, N.L. and her son moved to Melissa "mostly to escape [appellant]";
(3) appellant had threatened to kill N.L. if she testified in the sexual assault case and she
was "scared to death" when she believed he had discovered where she lived; (4) in mid-
August, a blue tarp and handcuffs similar to those used in the March 2013 sexual assault
were left on N.L.'s front porch; (5) during the week before N.L. was killed, searches were
conducted on appellant's work computer under his username to locate GPS coordinates at
and around N.L.'s home; (6) N.L. was shot with a .22-caliber handgun sometime between 8
a.m. and 4:30 p.m. on September 9, 2013; (7) on that date, the front door was unlocked
when N.L.'s son arrived home from school, screws possibly were missing from the latch on
N.L.'s bedroom window, and a neighbor saw a person slouched down in a truck sitting in
front of N.L.'s house at 8:15 a.m.; (8) although the truck seen by the neighbor matched the
description of Greer's truck, Greer's time sheets showed he was working at that time; (9)
appellant stopped using his cell phone several days before the date N.L. was killed and
resumed cell phone use at 11:13 a.m. on the date of the killing; (10) appellant did not have
a confirmed alibi for that morning; (11) during a search of appellant's home, police found a
photograph of a gun case containing two.22-caliber firearms, with suppressors; (12) in a
storage unit leased by appellant's ex-wife, police found a gun case similar to the case in
that photograph that contained one suppressor, but no .22-caliber firearms; (13) during a
search of appellant's truck, police found a small screw on the front floorboard that was
similar to the type used in guns; (14) at the crime scene, appellant's touch DNA was found
on the outer-facing surface of a condom that was sitting atop "fresh trash" in the master
bathroom wastebasket, which was lined with a plastic liner; and (15) although multiple items
from the crime scene were tested, no other DNA of appellant was found at the scene.

"In circumstantial evidence cases, it is not necessary that every fact and circumstance
`point directly and independently to the defendant's guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating
circumstances.'" Temple, 390 S.W.3d at 359 (quoting Johnson, 871 S.W.2d at 186). On this
record, considering all of the evidence in the light most favorable to the verdict, we conclude
that, based on that evidence and reasonable inferences therefrom, a rational jury could
have found the essential elements of the crime beyond a reasonable doubt. See id. at
361; see also Merritt, 368 S.W.3d at 527 (reversing court of appeals' conclusion of
insufficient evidence because court of appeals "improperly acted as a thirteenth juror when
it speculated and focused on the existence of a reasonable hypothesis inconsistent with the
guilt of the accused, thereby repudiating the jury's prerogative to weigh the evidence, to
judge the credibility of the witnesses, and to choose between conflicting theories of the
case").

We note that the dissent focuses heavily on the fact that "DNA can be transferred from one
source or location to another source or location" and "finding a person's DNA at a location .
. . does not prove how or when the DNA got there." According to the dissent, "This is
notable given the undisputed fact that N.L. had previously lived with appellant in his house
and had moved her belongings from there to the house where she was shot." However, the
record (1) is silent as to when N.L. and appellant lived together and as to what belongings
she retained after moving out of his home, and (2) shows N.L. lived in at least one other
location in Frisco between the time she lived with appellant and the time she moved to the
house in Melissa. Further, the dissent does not expressly consider the evidence showing (1)
DNA evidence can "decrease with washing"; (2) the green condom containing appellant's
touch DNA was found atop "fresh trash" in a trash can with a plastic liner; and (3) although
multiple items from the crime scene were tested, no other DNA of appellant was found at
the scene.

Additionally, the dissent states "it is undisputed that appellant was required to give up his
guns after his sexual assault arrest and the gun case was found locked up in his ex-wife's
off-site storage unit." However, although Mankin testified appellant "had been ordered to get
rid of his guns" pursuant to the protective order obtained by N.L., no evidence in the record
specifically addresses whether he did so.

As described above, "an inference is a conclusion reached by considering other facts and
deducing a logical consequence from them." Hooper, 214 S.W.3d at 16. Because the
evidence in the record supports conflicting inferences respecting appellant's presence at the
crime scene, we presume the jury resolved the conflicts in favor of the verdict and defer to
that determination. Merritt, 368 S.W.3d at 525-26. On this record, we cannot agree with the
dissent that the jury acted irrationally in finding the essential elements of the charged
offense beyond a reasonable doubt. See id.

We decide against appellant on his first issue.

III. DENIAL OF MOTION TO SUPPRESS RESULTS OF


INVENTORY SEARCH
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, an appellate court must apply an
abuse of discretion standard and overturn the trial court's ruling only if it is outside the zone
of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App.
2011) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). We give almost
complete deference to the trial court's determination of historical facts and mixed questions
of law and fact that rely upon an assessment of the credibility and demeanor of a witness,
but apply a de novo standard of review to pure questions of law and mixed questions that
do not depend on credibility determinations. Id. at 923. We must uphold the trial court's
ruling if it is reasonably supported by the record and correct under any applicable theory of
law. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Hereford v. State, 339
S.W.3d 111, 117-18 (Tex. Crim. App. 2011).

B. Applicable Law
The Texas and United States constitutions permit an inventory search conducted pursuant
to a lawful impoundment of a vehicle. See South Dakota v. Opperman,428 U.S. 364, 375-76
(1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980). The State bears
the burden of showing an impoundment is lawful. Mayberry v. State, 830 S.W.2d 176, 180
(Tex. App.-Dallas 1992, pet. ref'd).

Reasonable cause for impoundment of a vehicle may exist when the driver is removed from
his automobile and placed under custodial arrest and his property cannot be protected by
any means other than impoundment. Benavides, 600 S.W.2d at 811; Lagaite v. State, 995
S.W.2d 860, 865 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Factors to be considered
in determining the reasonableness of an impoundment following a custodial arrest include
whether (1) someone was available at the scene of the arrest to whom the police could
have given possession of the vehicle, (2) the vehicle was impeding the flow of traffic or was
a danger to public safety, (3) the vehicle was locked, (4) the detention of the arrestee would
likely be of such duration to require the police to take protective measures, (5) there was
some reasonable connection between the arrest and the vehicle, and (6) the vehicle was
used in the commission of another crime. Mayberry, 830 S.W.2d at 179-80; Josey v.
State, 981 S.W.2d 831, 843 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd); Redmond v.
State, No. 05-09-01461-CR, 2011 WL 1142915, at *2 (Tex. App.-Dallas Mar. 30, 2011, pet.
ref'd) (not designated for publication).

C. Application of Law to Facts


In his second issue, appellant contends the trial court abused its discretion by denying his
motion to suppress the results of the inventory search of his truck. Specifically, appellant
argues "[t]he Frisco police policy of `impound whenever' is plainly unlawful" and "there was
no other lawful basis for impoundment." The State responds in part "[t]he impoundment was
legal and the inventory search was proper."

With respect to the factors described above, appellant asserts that "at most, two of the
factors support[] impoundment." Specifically, appellant acknowledges that although the
record does not show whether police asked appellant about the availability of someone who
could take possession of the truck, peace officers need not independently investigate
possible alternatives to impoundment absent some objectively demonstrable evidence that
alternatives, in fact, exist. See Harris v. State, 468 S.W.3d 248, 255 (Tex. App.-Texarkana
2015, no pet.) (citing Mayberry, 830 S.W.2d at 180). Also, appellant does not dispute there
was a connection between his truck and his arrest for driving without a front license plate.

As to his contention that none of the remaining factors support impoundment, appellant
argues in part that "[c]ontrary to Sartain's testimony that he feared Adams might `stay in jail
a month,' Adams's arrest was not likely to result in prolonged detention—operating a vehicle
without a license plate is a misdemeanor punishable by a fine not to exceed $200."
However, the record shows appellant was a suspect in a murder investigation and Mankin's
intent was to approach appellant during the traffic stop and "bring him in voluntarily and talk
to him." Thus, the record contains evidence to support a finding that "the detention of the
arrestee would likely be of such duration to require the police to take protective measures."

Additionally, appellant contends "[e]ven if Adams were to be detained for a significant


amount of time for driving without a front license plate, the Seventh Circuit Court of Appeals
has rejected that impoundment is thus permissible for the liability purposes of the police, as
Officer Sartain suggested." In support of that position, appellant cites United States v.
Duguay, 93 F.3d 346, 352 (7th Cir. 1996). However, Duguay involved a vehicle that was
impounded after the defendant's arrest even though two individuals who could have taken
possession of the vehicle were present at the scene. Id. at 353. Therefore, we do not
find Duguayinstructive.

On this record, we conclude the trial court did not abuse its discretion by concluding the
impoundment in this case was proper. See Garza v. State, 137 S.W.3d 878, 883-84 (Tex.
App.-Houston [1st Dist.] 2004, pet. ref'd) (impoundment was reasonable where evidence
showed reasonable connection between arrest and vehicle, no one was present at scene to
take possession of vehicle, and detention would likely be of such duration as to require
protective measures); see also Mayberry, 830 S.W.2d at 179-80.

We decide against appellant on his second issue.

IV. CONCLUSION We decide appellant's two issues


against him. The trial court's judgment is affirmed.
Whitehill, J., dissenting.

JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

DISSENTING OPINION
Opinion by Justice WHITEHILL.

Appellant's former fiancée N.L. was murdered in her home on September 9, 2013.
Appellant was convicted of capital murder and sentenced to life in prison for that crime.

It is not our job to second guess the jury or to act as a thirteenth juror. It is, however, our
constitutional duty to detach from the case's emotions, review the totality of the evidence,
and dispassionately determine whether a rational juror could have reasonably determined
beyond a reasonable doubt—beyond strong suspicion and mere probability—that appellant
was the one who actually pulled the trigger. This distinction is critical where, as here, DNA
evidence that the State urges puts appellant at the crime scene also puts at least two and
possibly more than a dozen other people there and there is no evidence of who actually
committed the crime.

That said, it is easy to see how the jury convicted appellant on this record in this emotionally
charged case. There was evidence that among other things he (i) previously threatened to
kill N.L. for reporting to the police that he had brutally sexually abused her and indicated
that he might kill her at that time, (ii) tracked her down after she moved to a different city,
and (iii) tried to intimidate her by leaving a blue tarp and handcuffs on her front porch. And
there is DNA evidence that viewed in the light most favorable to the verdict arguably placed
him at the crime scene. But constitutional law requires the State to prove each element of
the crime—including the conduct element—beyond a reasonable doubt. Given the unusual
undisputed circumstances in this case, those facts alone are not legally sufficient to prove
beyond strong suspicion or mere probability that appellant himself committed the act of
murder as the State bore the burden to prove since it did not invoke the law of parties.
Therefore, we should reverse the conviction and render a judgment of acquittal.

I. Background
The murder happened in N.L.'s house as she was lying on her bed. The State did not
invoke the law of parties to support appellant's conviction. Thus, it had to prove beyond a
reasonable doubt that appellant was at the crime scene when the murder occurred and
personally committed the crime.

To prove those elements/facts, the State relies principally on the facts that appellant's skin
cell DNA was found at the crime scene and that he once had a .22 pistol of a kind that could
have been used to shoot N.L. For the following reasons, neither category of evidence is
sufficient to carry the State's burden here if the court of criminal appeals' requirement that
the State produce evidence that is more than "strong suspicion of guilt or mere probability of
guilt" has meaning. See Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).

II. Burden of Proof and Standard of Review


We apply the Jackson v. Virginia, 443 U.S. 307 (1979), standards of review to appellant's
legal sufficiency issue. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) (plurality op.). In Jackson, the United States Supreme Court held that constitutional
due process requires that the government must prove each element of a crime by legally
sufficient evidence. 443 U.S. at 313-16. In so doing, the Supreme Court re-affirmed that

the Due Process clause of the Fourteenth Amendment protects a defendant in a criminal
case against conviction "except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged."

Id. at 315 (quoting In re Winship, 397 U.S. 358, 364 (1970)) (emphasis added). Moreover,
"[t]he constitutional necessity of proof beyond a reasonable doubt is not confined to those
defendants who are morally blameless." Id. at 323. Following Brooks, the court of criminal
appeals has described the beyond a reasonable doubt requirement variously.
According to our court of criminal appeals:

The Jackson v. Virginia legal-sufficiency standard requires the reviewing court to view the
evidence in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. * * * It is the obligation and responsibility of
appellate courts "to ensure that the evidence presented actually supports a conclusion that
the defendant committed the crime that was charged." Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007). Furthermore, "[i]f the evidence at trial raises only a suspicion of
guilt, even a strong one, then that evidence is insufficient [to convict]." Urbano v. State, 837
S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part on other grounds, Herrin v.
State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002).

Richard Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010) (emphasis in
original).

Last year, that court described the standards thusly:

When reviewing the sufficiency of the evidence, we view the evidence "in the light most
favorable to the verdict and determine whether, based on the evidence and reasonable
inferences therefrom, a rational juror could have found the essential elements of the
crimebeyond a reasonable doubt." Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim.
App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.Ed.2d
560 (1979)). The jury is the sole judge of the credibility of witnesses and the weight to be
given to their testimonies, and the reviewing court must not usurp this role by substituting its
own judgment for that of the jury. Montgomery v. State,369 S.W.3d 188, 192 (Tex. Crim.
App. 2012). The duty of the reviewing court is simply to ensure that the evidence presented
supports the jury's verdict and that the State has presented a legally sufficient case of the
offense charged. Id. When the reviewing court is faced with a record supporting
contradicting inferences, the court must presume that the jury resolved any such conflicts in
favor of the verdict, even if not explicitly stated in the record. Id. "Under this standard,
evidence may be legally insufficient when the record contains either no evidence of an
essential element, merely a modicum of evidence of one element, or if it conclusively
establishes a reasonable doubt." Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App.
2013) (citing Jackson, 443 U.S. at 320, 99 S. Ct. 2781).

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (emphasis added)
(evidence insufficient to convict).

Three years ago, the court of criminal appeals held that, "if the evidence is so weak that it
creates only a suspicion that a fact exists, then it is no more than a scintilla" and is
insufficient to prove a critical fact. McKay v. State, 474 S.W.3d 266, 270 (Tex. Crim. App.
2015) (evidence insufficient to prove critical fact).

Less than a week before McKay, the court of criminal appeals held that, although the State
can prove its case with circumstantial evidence, a strong suspicion and mere probability of
guilt are insufficient to prove a fact essential to establish guilt and juries are not permitted to
guess at the meaning of a piece of evidence:
Because factfinders are permitted to make reasonable inferences, both direct and
circumstantial evidence are probative to a case and it is possible for circumstantial evidence
alone to be enough to establish guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim.
App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Miles v.
State, 73 Tex. Crim. 493, 165 S.W. 567, 570 (Tex. Crim. App. 1914)). The standard of
review for sufficiency of the evidence is the same whether the evidence is direct or
circumstantial. Wise v. State,364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Not every fact
presented must directly indicate the defendant is guilty, but the cumulative force of the
evidence can be sufficient to support a finding of guilt. Beardsley v. State, 738 S.W.2d 681,
685 (Tex. Crim. App. 1987). A strong suspicion or mere probability of guilt are
insufficient. Id. In examining the evidence, factfinders are not permitted to make conclusions
based on unsupported inferences or to guess at the possible meaning of a piece of
evidence. Hooper, 214 S.W.3d at 15-16. While such a guess may be a reasonable one, it is
not sufficient to support a finding of an element beyond a reasonable doubt because it is not
based on facts. Id. However, where the inferences made by the factfinder are reasonable in
light of "the cumulative force of all the evidence when considered in the light most favorable
to the verdict," the conviction will be upheld. Wise, 364 S.W.3d at 903.

Nowlin, 473 S.W.3d at 318 (evidence insufficient to support felony conviction).

In Megan Winfrey v. State, the court of criminal appeals reversed and vacated convictions
for capital murder and conspiracy to commit capital murder based on insufficient evidence
despite substantial incriminating circumstantial evidence of motive, opportunity, and
consciousness of guilt.[1] 393 S.W.3d 763, 774 (Tex. Crim. App. 2013). In so doing, that
court held that "a strong suspicion of guilt does not equate with legally sufficient evidence of
guilt." Id. at 769. The court's analysis included a review of all of the evidence, including
evidence inconsistent with the inferences the State argued could be drawn from the State's
circumstantial evidence, see id. at 771-72, and held that the evidence viewed most
favorably to the verdict "merely raises suspicion of appellant's guilt and is legally insufficient
to support a conviction of capital murder beyond a reasonable doubt." Id. at 772-73. The
court similarly held that the evidence was legally insufficient to support Megan's conspiracy
to commit capital murder conviction. Id. at 773-74. Accordingly, the court reversed the
conviction and rendered a judgment of acquittal on each count. Id. at 774.

The court of criminal appeals reached a similar result in the related case of Richard Winfrey
v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010). Richard is Megan's father and was
convicted of the same murder as was Megan. There was no direct evidence placing Richard
at the crime scene, and the case focused largely on whether evidence that a dog alerted to
Richard's scent on the victim's clothes placed Richard at the crime scene and thus indicated
that he participated in the murder. The court reviewed all of the evidence and found it legally
insufficient to support the conviction. In so doing, the court rejected the dog-scent evidence
as

proof positive that appellant came in contact with the victim. Even when viewed in the light
most favorable to the verdict, the dog-scent lineup proves only that appellant's scent was on
the victim's clothes, not that appellant had been in direct contact with the victim, as the court
of appeals decided.
Id. at 881. That result rested on the State's witness's cross-examination testimony that "an
alert establishes relationship between the scent and objects and the scent detection does
not necessarily indicate person-to-person contact." See id. at 877. That testimony rested on
the witness's testimony that scents can be transferred from a person to an object and then
to another object without the person ever contacting the object. See id. at 877-78 n.4, 881-
82. When explaining that transference phenomenon, the witness analogized scent
transference to skin DNA transference that can occur when a person touches someone and
that person touches something else. Id. Accordingly, the court of criminal appeals
concluded that there was legally insufficient evidence to support Richard's conviction
because even a strong suspicion of guilt is insufficient to convict.[2] Id. at 882.

Stated summarily, constitutional due process requires the State to prove each element of a
crime—including each fact necessary to prove that element—beyond a reasonable doubt.
This standard requires that the State's evidence of that fact and element must amount to
more than strong suspicion and mere probability that the fact is true and the element is
proved. Thus, our task is to review all of the evidence in the light most favorable to the
verdict and determine whether the State's evidence and proffered inferences from that
evidence exceed strong suspicion and mere probability supporting that fact and element. If
it doesn't, we have a constitutional duty to render a judgment of acquittal. Applying those
principles, I proceed to analyze whether the State met that burden in this case.

III. Analysis
A. What did the State have to prove?
Fundamental to criminal law is that an actus reus is required for an offense to have been
committed. See Ramirez-Memije v. State, 444 S.W.3d 624, 627 (Tex. Crim. App. 2014).
The penal code codifies the actus reus requirement by providing, "A person commits an
offense only if he voluntarily engages in conduct, including an act, an omission, or
possession." TEX. PENAL CODE § 6.01; see also 444 S.W.3d at 627. Thus, to convict
appellant the State had to prove beyond a reasonable doubt—beyond strong suspicion or
mere probability—every fact necessary to show that he committed the conduct element
required for capital murder.

For purposes of this case, capital murder is murder under penal code § 19.02(b)(1)
intentionally committed in the course of committing certain other crimes. PENAL §
19.03(a)(2). Retaliation is the relevant underlying crime here, and evidence of it is not at
issue.

A person commits murder if he "intentionally or knowingly causes the death of an


individual." Id. § 19.02(b)(1) (emphasis added). The critical element at issue here is whether
there is legally sufficient evidence of the required conduct element, that is, that appellant
caused N.L.'s death.

Here, it was the State's strategy not to pursue a law of parties theory. According to the
original and amended indictments and the jury charge, the State accepted the burden to
prove beyond a reasonable doubt that it was appellant and not another who caused N.L.'s
death by shooting her with a firearm.[3] That is, it is not enough that the State proved beyond
strong suspicion or mere probability (if it did) that appellant was present when the murder
happened; the State had to prove that it was appellant and no one else who pulled the
trigger.

B. What is the evidence that appellant shot N.L.?


There is evidence of appellant's motive to commit the crime and that he had the opportunity
to do so because he knew where she lived. That evidence is included in the mix of evidence
constituting the totality of the circumstances available for the jury to consider. TEX. CODE
CRIM. PROC. art. 38.36(a). But motive and opportunity are not elements of the
crime, see PENAL § 19.02(b)(1), and are not alone sufficient to prove that appellant shot
and killed N.L., see Temple v. State,390 S.W.3d 341, 360 (Tex. Crim. App. 2013). What
then is the evidence that appellant himself shot N.L.? That is, is there non-speculative
evidence showing that he in fact committed the murder?

1. DNA Evidence
Based on forensic evidence at the crime scene, the State's witness Texas Ranger Rueben
Mankin testified that the shooter's hand was in close proximity to N.L. when the shots were
fired. Logic suggests that appellant therefore had to be present at the crime scene to have
personally shot N.L.

The evidence the State primarily relies on to place appellant at the crime scene when the
shooting occurred is that his skin cell DNA was found in N.L.'s bathroom on the outside of
an unused green condom at the top of a trashcan with fresh trash in it. [4] But several
undisputed facts highlight this evidence's speculative nature regarding whether appellant
was present when the murder happened let alone indicating that he was the one who shot
N.L.

For example, the State's DNA witness Kimberlee Mack, like the State's witness in Richard
Winfrey, testified on cross examination that finding a person's DNA at a location proves only
that his DNA was there without proving that he was necessarily there and does not prove
how or when the DNA got there.[5] And the facts that N.L.'s son's DNA was found on N.L.'s
shorts at the foot of the bed and under her fingernail, and that the evidence was
inconclusive as to whether his DNA was also found inside the green condom, illustrate how
DNA can be transferred from one source or location to another source or location. This is
notable given the undisputed fact that N.L. had previously lived with appellant in his house
and had moved her belongings from there to the house where she was shot. [6]

Assuming, however, that DNA evidence placed appellant at the crime scene when the
murder occurred, no DNA, fingerprint, hair sample, blood sample or other evidence shows
that he shot N.L.

More importantly, the DNA also placed at least two unknown persons' DNA at the crime
scene. Furthermore, additional evidence from the green condom's outside shows that as
many as two or three other unknown individuals' skin DNA was also found there. And
evidence extracted from inside that condom indicated that two unidentified persons' skin
DNA was found inside that condom. Any of these unknown persons could have shot N.L.
(Dx. 53).

Moreover, because the State's DNA report did not analyze whether the unknown DNA
contributors at the various spots where DNA was found on N.L. or on her tank top or shorts
were from the same person or different persons, it is possible that DNA from more than a
dozen possible shooters was found at the crime scene. And no evidence excludes any one
of these multiple unknown persons as the shooter.

In sum, the DNA evidence in this case is speculative at best regarding whether appellant
shot N.L. and is thus legally insufficient to prove beyond a reasonable doubt that he did so.

2. Gun Evidence
Next, no murder weapon was ever found and the State's firearms expert testified that he
could not identify a particular manufacturer's firearm used to fire the two recovered bullets.
Although there is evidence that (i) N.L. was shot with a .22 of some sort; (ii) appellant once
had a.22 pistol; (iii) the police found an empty gun case in appellant's ex-wife's storage unit
that "appeared" like a case appellant had a picture of in his home, and Ranger Mankin
"believed" it was the same case in the picture; and (iv) the police found in appellant's truck a
screw that looked like it came from a pistol grip, there is no affirmative evidence linking
appellant to the murder weapon, and this evidence adds only more speculation to the mix.

Furthermore, it is undisputed that appellant was required to give up his guns after his sexual
assault arrest and the gun case was found locked up in his ex-wife's off-site storage unit.

Moreover, there is no evidence that the .22 was removed from its case before the case was
placed in the storage unit or that appellant had access to that storage unit.

Finally, the State's firearms expert testified that although the groove patterns on the
recovered .22 bullets matched the groove pattern for the .22 gun manufacturer whose case
was shown in the picture, he also said that the bullets' groove patterns matched at least
seventeen other manufacturers' groove patterns. That is, at least eighteen different
manufacturers could have manufactured the barrel that produced the groove patterns on
the recovered bullets. The State's expert also concluded that gun's manufacturer was
unknown and could not be identified.

It is mere speculation that appellant's .22 was used to kill N.L. and by inference that
appellant did so.

3. Other Evidence
The red and white pickup truck a neighbor saw outside N.L.'s house the morning of the
murder did not match the color of appellant's white truck. And that neighbor did not identify
appellant as the person he saw sitting in the red and white truck. Thus, testimony about this
truck does not render the State's DNA and gun evidence any less speculative regarding
whether appellant shot N.L.

Similarly, the State's cell phone usage evidence does not make its DNA and gun evidence
less speculative. Although there was evidence that appellant used his cell phone only nine
times in the eleven days before the murder and not at all on the Saturday and Sunday
before he began using it again at 11:13 a.m. on the Monday N.L. was murdered, his cell
phone records showed that this usage pattern was not unusual for him. Specifically, for the
time period beginning April 1, 2013, when the records began, through September 9, 2013,
when the murder happened, there were either no phone calls made or there were no calls
made before 11:00 a.m. on 72 out of those 162 days (or 44% of those days). Thus, the cell
phone records do not reasonably suggest unusual or incriminating conduct by appellant.

III. Conclusion
Taken together, the speculative DNA evidence and suspicion about whether appellant's .22
was the murder weapon create, at best, nothing more than strong suspicion that appellant
shot N.L. See Rodriguez v. State, 454 S.W.3d 503, 508 (Tex. Crim. App. 2014) ("While the
jury is allowed to draw reasonable inferences, it cannot simply speculate or theorize about
the possible meaning of the evidence."). But they are not enough to support a finding
beyond a reasonable doubt that he did so, even in light of the evidence concerning his
motive and knowledge of N.L.'s location.

It is a basic tenet of our criminal justice system that a defendant cannot be convicted
because he is a bad person rather than because he committed the specific act for which he
is tried. Smith v. State, 12 S.W.3d 149, 152 (Tex. App.-El Paso 2000, pet. ref'd). Despite the
strong suspicion that appellant was the shooter, the evidence in this case is legally
insufficient to convict him of capital murder beyond a reasonable doubt because the
evidence produces no more than speculation or strong suspicion that he in fact committed
the crime.

Accordingly, we should sustain appellant's first issue, reverse appellant's conviction, and
enter a judgment of acquittal as we are constitutionally required to do.

[1] During argument on the motion to suppress, counsel for appellant argued the inventory search in question was not
"conducted in good faith and under a reasonable standardized police procedure." Additionally, counsel for appellant
cited Josey v. State, 981 S.W.2d 831, 842 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd), and stated in part,

Both of the officers confirm that the vehicle, where it was parked, was not impeding any flow of traffic, that it was not
a danger to public safety in any way, and that otherwise it was lawfully parked. There was nobody from McDonald's
or any other person with an ownership interest in the lot came and told them that the vehicle needed to be removed, it
could not stay there. In other words, it was okay to stay where it was. I think the evidence is clear on that. The
evidence is also clear that they never inquired of Mr. Adams of whether or not he wanted someone to come take the
vehicle instead of it being impounded.

....

Josey at 842 states that "Factors that may be considered to determine the reasonableness of impoundment are, one,
whether someone was available at the scene of the arrest to whom the police could have given possession of the
vehicle; two, whether the vehicle was impeding the flow of traffic or was a danger to public safety; three, whether the
vehicle was locked; four, whether the detention of the arrestee would likely be of such duration as to require police to
take protective measures; five, whether there was some reasonable connection between the arrest and the vehicle;
and, six, whether the vehicle was used in the commission of another crime."

I don't believe there's any evidence that's been testified to that would substantiate that any of the factors that would
weigh in favor of this being an unlawful [sic] impoundment of this vehicle were ever present.

[2] The results of the DNA analysis did not include a determination of whether any of the DNA at the crime scene
from "unknown" individuals was from the same person.

[3] Additionally, the dissent states that in Richard Winfrey, the evidence respecting "transference" included a witness
who "analogized scent transference to skin DNA transference that can occur when a person touches someone and
that person touches something else." However, while the evidence in that case included testimony that shaking
hands can result in transfer of "skin cells" to a third person upon subsequent contact, there was no testimony
respecting any type of "DNA transference." See id. at 877 n.4.

[1] The complainant worked at the high school the appellant attended. He was found dead in his home with numerous
stab wounds and multiple sharp and blunt force injuries. The appellant was sixteen when the murder occurred. After
an investigation that included dog-scent lineups, approximately three years later, appellant's father and brother were
arrested and charged with capital murder. Appellant was charged with capital murder and conspiracy to commit
capital murder. A jury convicted the appellant, and the trial court sentenced her to life imprisonment for the capital
murder and forty-five years for the conspiracy count. The court of appeals affirmed, with one justice dissenting. The
court of criminal appeals reversed the court of appeals' judgment and rendered acquittals on both counts.
Investigators collected hair, blood and DNA samples, a bloody footprint, and fingerprints from various places in the
house and a DNA swab from women's underwear that was found in the victim's bedroom. Hair samples recovered
from the victim's body contained a partial female DNA profile. The investigators collected a pubic hair sample from
appellant. The DNA profiles developed from the collected items either matched the victim or did not match any of at
least nine individuals who were questioned regarding the murder. No physical evidence connected appellant or her
family to the scene, nor were she or any member of her family connected to the property assumed to be missing from
the home. The only evidence that purported to connect appellant directly to the crime scene was a "scent lineup." The
State, however, developed evidence showing that appellant knew the victim had money and wanted him to spend it
on her. Appellant's boyfriend when the murder happened testified that the appellant had shaved herself when she
first learned that a search warrant was going to be issued for her pubic hair. The boyfriend also testified that he
overheard her try to develop an alibi and that she told him that going into the victim's home "was an easy lick."
Testimony from several of appellant's teachers recounted incriminating statements they overheard the appellant
make. Other evidence showed that the appellant and her brother occasionally visited the victim in his home near
theirs on their way to church.

[2] Significantly, however, the court in Richard Winfrey observed that, unlike the present case, Richard did not match
the DNA profile obtained from the crime scene. Id. at 882. Nonetheless, the court did not say that finding Richard's
DNA at the scene would have been sufficient to convict him of murder.

[3] The indictment charged that appellant "did then and there intentionally cause the death of an individual, namely,
[N.L.], by shooting [N.L.] with a firearm, and the defendant was then and there in the course of committing or
attempting to commit the offense of retaliation against [N.L.]. . . ."

[4] There is evidence that the green condom was or may have been turned inside out when it was found.

[5] "Q. That doesn't mean that person was there, right? It just means their DNA is there? A. Yes. Q. But DNA doesn't
tell us how it got there, does it? A. No. Q. It doesn't tell us when it got there, does it? A. No. Q. And you can find DNA
at the place years and years after it was left there, right? A. It depends. Q. It depends on the source or it depends on
what it is? A. It depends on the source, where did the DNA come from, the temperature of the environment that was
there, how much DNA was deposited at that point in time. Q. Just a lot of unknowns? A. Yes."

[6] Ranger Mankin, however, declined to consider the possibility that this DNA was transferred from contact with
appellant or some object with his DNA on it while she lived in his house, because of the time since she moved out
and the distance between the two houses (one in Frisco and the other in Melissa).
STATE OF UTAH, Appellee,
v.
FERNANDO ANTONIO GUZMAN, Appellant.
No. 20150925-CA.

Court of Appeals of Utah.

Filed May 24, 2018.

Appeal from Third District Court, Salt Lake Department, The Honorable Elizabeth A.
Hruby-Mills, No. 141911297.

Hakeem Ishola and Carlos Navarro, Attorneys for Appellant.

Sean D. Reyes, Jennifer Paisner Williams, and Erin Riley, Attorneys for Appellee.

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES


GREGORY K. ORME and JILL M. POHLMAN concurred.

Opinion
CHRISTIANSEN, Judge.

¶1 Defendant Fernando Antonio Guzman appeals his conviction on one count of


rape, a first degree felony. See Utah Code Ann. § 76-5-402 (LexisNexis
2017).[1]Defendant contends that the trial court erred in excluding evidence under
rule 412 of the Utah Rules of Evidence, that the trial court erroneously admitted
hearsay evidence and violated his constitutional right to confrontation, and that the
State failed to produce sufficient evidence at trial to support his conviction. We
affirm.

BACKGROUND[2]
¶2 In November 2011, Victim, who was then fifteen years old, was a patient at a
healthcare facility. Victim fled the facility on foot and wound up on the freeway,
where Defendant picked her up. Defendant took Victim to the apartment he shared
with his mother. That night, Defendant had nonconsensual sexual intercourse with
Victim.

¶3 The next day, Defendant drove Victim back to the healthcare facility, and Victim
reported the incident to the facility's staff. Victim was then taken to Primary
Children's Hospital, where a nurse performed a sexual assault examination. The
nurse introduced herself to Victim "as a nurse working with Safe and Healthy
Families" and stated that she "would be asking [Victim] questions about why she
was there and about her health history and then [the nurse] would also want to do a
physical exam." When the nurse asked Victim why she was there, Victim "said she
had been raped four times." The nurse also asked Victim if she was having any pain
or had any injuries, and Victim stated that "she had a sore throat and that she had
bruises on her neck, her stomach and her leg." The nurse treated Victim with an
emergency contraceptive and with antibiotics for possible exposure to sexually
transmitted infections that might result from "penile penetration." "[B]ased upon the
information [she] got from [Victim] about ejaculation," the nurse took swabs from
Victim's stomach, vaginal cavity and surrounding areas, and anus, and assembled a
sexual assault kit.

¶4 A detective interviewed both Defendant and Victim. During his interview with
Defendant, the detective explained to Defendant that Victim alleged he had raped
her. Defendant denied having any sexual contact whatsoever with Victim. The
detective collected a sample of Defendant's DNA via buccal swab—"a method of
collecting DNA by swabbing the interior surface of a person's cheek." See State v.
White, 2016 UT App 241, ¶ 4, 391 P.3d 311. The detective took the swab and
Victim's sexual assault kit to the state crime lab for processing.

¶5 A forensic biologist tested Victim's swabs for seminal fluid and was able to
"identif[y] sperm on . . . the vaginal swabs, anal swabs and stomach swabs." A DNA
expert determined that Defendant's DNA matched the DNA found on Victim's swabs.
The DNA expert later testified that the chances of an unrelated individual, randomly
drawn from the population, matching the DNA profile "turns out to be in Caucasians
1 in 44 sextillion, in blacks it would be 1 in 350 sextillion, and in southwestern
Hispanics it would be one in 340 quintillion."[3]

¶6 The State initially charged Defendant with four counts of rape and one count of
object rape, all first degree felonies, but later dropped one of the rape counts. At the
preliminary hearing, Victim testified that she "had lied when she claimed there had
been any sexual conduct between her and Defendant."[4] Based on Victim's
preliminary hearing recantation, Defendant filed a motion pursuant to rule 412 of the
Utah Rules of Evidence, seeking to admit evidence that Victim was truthful in saying
she had "not [been] raped this time because she had truthfully reported other rape
incident[s] in the past." The trial court denied Defendant's motion.

¶7 During the pretrial conference, the prosecutor indicated that he had not been able
to locate Victim, and the court continued the trial date to allow the State to subpoena
additional witnesses. At the beginning of trial, when Victim failed to appear, the State
informed the court that it intended to "offer[] [Victim's] explanation as to what
happened to her through Rule of Evidence 803(4), statements made for medical
diagnosis or treatment." Specifically, the State asserted that it intended to call the
nurse to testify about Victim's statements during the medical examination that she
had been raped multiple times. Defense counsel objected, arguing that Victim did
not make the statements to the nurse for the purpose of medical diagnosis or
treatment and that his only opportunity to cross-examine Victim had been at the
preliminary hearing. Defense counsel also indicated that he would not seek to admit
Victim's preliminary hearing testimony. The trial court ruled that

to the extent the statements made by [Victim] to medical providers were provided for
the purpose of diagnosis or treatment, and those statements were related to medical
diagnosis or treatment, then those statements carry the guarantee of trustworthiness
and [are] entitled to this exception, and so . . . to the extent that testimony fits into
that criteria, those statements will be allowed.

¶8 Before closing arguments, defense counsel moved for a directed verdict on


counts two through four (two counts of rape and one count of object rape). The trial
court dismissed the object rape count but denied Defendant's motion on the two
counts of rape. The jury convicted Defendant on one count of rape. Defendant
appeals.

ISSUES AND STANDARDS OF REVIEW


¶9 Defendant makes several arguments on appeal. First, he contends that his
"rights to cross-examination and to present a complete defense [were] abridged
when the [trial] court denied his Rule 412 motion seeking admission of rebuttal
evidence to show that [Victim] knew how to report a true rape to the authorities."
"We review the trial court's underlying evidentiary determinations for abuse of
discretion." State v. Clark, 2009 UT App 252, ¶ 10, 219 P.3d 631. However, the
alleged "denial of the right to confront and cross-examine witnesses presents a
question of law which is reviewed for correctness." Id. (quotation simplified).

¶10 Second, Defendant contends that he "was denied the right of confrontation
when [Victim] voluntarily abstained from trial, and third party witnesses testified that
[Victim] told them out-ofcourt that [Defendant] raped her, contrary to what she said
at [the] preliminary hearing." As part of this argument, Defendant contends that the
trial court's admission of Victim's hearsay statements under rule 803(4) of the Utah
Rules of Evidence "was problematic." When reviewing rulings on hearsay evidence,
we review legal questions regarding admissibility for correctness, questions of fact
for clear error, and the trial court's final ruling on admissibility for abuse of
discretion. State v. Rhinehart, 2006 UT App 517, ¶ 10, 153 P.3d 830. "Whether a
defendant's confrontation rights have been violated is a question of law, reviewed for
correctness." State v. Garrido, 2013 UT App 245, ¶ 9, 314 P.3d 1014.

¶11 Third, Defendant contends that "[t]he evidence presented by the State was
insufficient to convict [him] of rape." Defendant concedes that this argument was not
preserved in the trial court and seeks review under the ineffective-assistance-of-
counsel and plain-error exceptions to the preservation requirement. See State v.
Allgood, 2017 UT App 92, ¶ 19, 400 P.3d 1088 ("Appellate courts generally will not
consider an issue raised for the first time on appeal absent plain error, exceptional
circumstances, or ineffective assistance of counsel." (quotation simplified)). "An
ineffective assistance of counsel claim raised for the first time on appeal presents a
question of law." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. A "trial court plainly
errs if it submits the case to the jury and thus fails to discharge a defendant when
the insufficiency of the evidence is apparent to the court." State v. Holgate,2000 UT
74, ¶ 17, 10 P.3d 346. "[T]o establish plain error, a defendant must demonstrate first
that the evidence was insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental that the trial court
erred in submitting the case to the jury." Id. When a defendant challenges the
sufficiency of the evidence, we review "the evidence and all inferences drawn
therefrom in a light most favorable to the jury's verdict." Id. ¶ 18.

¶12 Fourth, Defendant contends that "[c]umulative error warrants reversal of [his]
conviction and a new trial ordered." "Under the cumulative error doctrine, we apply
the standard of review applicable to each underlying claim or error and reverse only
if the cumulative effect of multiple errors undermines our confidence that a fair trial
was had." State v. Yalowski, 2017 UT App 177, ¶ 16, 404 P.3d 53 (quotation
simplified).

ANALYSIS
I. Utah Rule of Evidence 412
¶13 Defendant contends that "[t]he court denied [him] the right to present a complete
defense by not allowing him to present evidence of [Victim's] prior rape incidents to
rebut the State's theory and show that [Victim] knew how to report a true rape."
According to Defendant, admission of Victim's prior rape accusations would have
illustrated that Victim "had truthfully reported other rape incidents in the past" and
that she "was thus truthful when she said [at the preliminary hearing that] she was
not raped this time."

¶14 In a criminal proceeding involving alleged sexual misconduct, rule 412 of the
Utah Rules of Evidence prohibits admission of "evidence offered to prove that a
victim engaged in other sexual behavior" or "evidence offered to prove a victim's
sexual predisposition." Utah R. Evid. 412(a). Defendant concedes that "the evidence
[he] sought to introduce is generally barred under Rule 412," but he asserts that
"evidence of [Victim's] other rape incidents/cases should have been admitted under
the exception allowing admission if excluding such would infringe the right to
effective cross-examination." See id. R. 412(b)(3) ("The court may admit the
following evidence if the evidence is otherwise admissible under these rules: . . . (3)
evidence whose exclusion would violate the defendant's constitutional rights.").
¶15 The trial court determined that

[e]vidence of [Victim's] prior victimization and her knowledge of how to report a rape
is simply not relevant . . . as to whether the Defendant raped her under the facts of
this matter. . . . The evidence of [Victim's] prior sexual activity and/or victimization
simply does not make it less probable or more probable that [Defendant] raped or
had sexual intercourse with her in the instant matter.

The court further determined that under rule 403 of the Utah Rules of Evidence, "the
probative value of [Victim's] prior sexual conduct and reporting of sexual assault is
substantially outweighed by the danger of unfair prejudice to [Victim] and the state,
and has a great tendency to confuse and mislead the jury."

¶16 According to Defendant, he "anticipated rebutting the State at trial with evidence
showing that [Victim] truthfully reported her other rape incidents to the authorities,
and thus was not lying at the preliminary hearing when she said [Defendant] did not
rape her." "Conversely, should [Victim] revert at trial to her out-of-court story,
[Defendant] would not have needed the evidence to be able to mount a complete
defense because he could have impeached [Victim] with her preliminary hearing
testimony and further damaged her already weakened credibility."

¶17 The State correctly observes that Victim's preliminary hearing testimony—that
she "had lied when she claimed there had been any sexual conduct between her
and Defendant"—did not come in at trial. Thus, according to the State, "any error in
omitting the evidence of [Victim's] prior rape accusations under Rule 412 was
harmless because the jury never heard [Victim's] preliminary hearing
recantation." See generally State v. Clark, 2016 UT App 120, ¶ 8, 376 P.3d
1089 (observing that where an appellant establishes a constitutional violation on
appeal, the State has the burden of demonstrating that the error was harmless
beyond a reasonable doubt). We agree.

¶18 At the beginning of trial, the State asserted that it planned to introduce evidence
of Victim's medical examination and her statements to the nurse. The State also
noted that it understood that the defense planned to offer the statement Victim made
at the preliminary hearing that "there was no sexual contact at all." The State
informed the court that it would not object to the admission of Victim's preliminary
hearing statement. The State further asserted, however, that "once that evidence is
in, Rule 806 of the Utah Rules of Evidence allows us to ask the officer who
interviewed [Victim] at the time for additional details, that being a prior inconsistent
statement with the statement made at the preliminary hearing. That occurred prior to
any motivation to fabricate, thus meeting the Rule 806 exception."

¶19 Defense counsel responded by discussing the admissibility of Victim's medical


examination and her statements to the nurse, and he stated that "we'd be more than
happy to not mention what happened at the preliminary hearing in order to prevent
these random statements [from] being brought in that we have no chance to
challenge." The trial court clarified, "So you do not anticipate utilizing the preliminary
hearing for your purposes . . . ." Defense counsel replied, "No, I think we can skip
over that." The court stated, "And if that changes we can probably further address
that later." Despite the fact that Victim's statements to the nurse were later
introduced into evidence, defense counsel did not seek to introduce Victim's
preliminary hearing testimony.

¶20 Even if we assume, without deciding, that the exclusion of the evidence of
Victim's prior rape accusations violated Defendant's constitutional rights, we
conclude that the exclusion of that evidence was harmless beyond a reasonable
doubt. As mentioned, supra ¶ 16, Defendant's trial strategy was to use Victim's prior
rape accusations, in conjunction with her preliminary hearing testimony recantation,
to demonstrate that Victim "truthfully reported her other rape incidents to the
authorities, and thus was not lying at the preliminary hearing when she said
[Defendant] did not rape her." However, given that defense counsel did not seek to
admit Victim's preliminary hearing testimony after all, there was no need for defense
counsel to use the evidence of Victim's prior rape accusations to bolster her
credibility and demonstrate that she was telling the truth at the preliminary hearing;
the jury simply never heard Victim's preliminary hearing recantation. Moreover, we
agree with the State that the trial court's exclusion of the rule 412 evidence did not
prevent Defendant from seeking to admit her preliminary hearing rape recantation.
Indeed, even without the rule 412 evidence, the evidence of Victim's preliminary
hearing recantation might well have been helpful to Defendant's case, although
defense counsel had to consider whether the benefit of the recantation would be
outweighed by the detective's being then able to recount Victim's detailed account of
the rapes the day following the incident.[5]

¶21 In sum, we conclude that any error in omitting the evidence of Victim's prior rape
accusations was harmless beyond a reasonable doubt.

II. Hearsay and the Right to Confrontation


¶22 Defendant contends that he "was denied the right of confrontation when [Victim]
voluntarily abstained from trial, and third party witnesses testified that [Victim] told
them out-ofcourt that [Defendant] raped her, contrary to what she said at [the]
preliminary hearing." Specifically, Defendant takes issue with the nurse's and the
detective's testimonies. We address the nurse's testimony first.

A. The Nurse's Testimony


¶23 At the beginning of trial, the State observed that Victim "has chosen not to
attend this event" and indicated that it was "anticipating offering her explanation as
to what happened to her through Rule of Evidence 803(4)." The State further
indicated that it was planning to ask the nurse "what statements were made by
[Victim] for purposes of the nurse doing the examination." Defense counsel argued
that Victim's "statements regarding the [incident] would be inadmissible pursuant
to Crawford." See generally Crawford v. Washington, 541 U.S. 36, 68
(2004) ("Where testimonial evidence is at issue, . . . the Sixth Amendment[`s
Confrontation Clause] demands what the common law required: unavailability and a
prior opportunity for cross-examination."). Defense counsel clarified that he did not
believe "Crawfordwould exclude discussion of [Victim's] examination, [but] simply
the statements she made regarding what happened." Defense counsel asserted that
"any statements that [Victim] made regarding what happened should be excluded
from this proceeding."

¶24 After a short recess, the trial court ruled:

With regard to the proposed testimony from the nurse, to the extent the statements
made by [Victim] to medical providers were provided for the purpose of diagnosis or
treatment, and those statements were related to medical diagnosis or treatment,
then those statements carry the guarantee of trustworthiness and [are] entitled to
this exception, and so . . . to the extent that testimony fits into that criteria, those
statements will be allowed.

¶25 During her testimony, the nurse stated, "I asked why [Victim] was there, and she
had told me that she had been raped, and . . . she said she had been raped four
times." Defense counsel objected and stated, "I believe that this is testimony not
related to the medical condition." The trial court declined to exclude the nurse's
testimony.[6]

¶26 Defendant first asserts that admitting Victim's "hearsay statements" under rule
803(4) of the Utah Rules of Evidence "was problematic." He then asserts that
"[a]dmitting [Victim's] testimonial hearsay through Nurse was even more problematic
under the Confrontation Clause." We first address Defendant's hearsay argument.

¶27 "`Hearsay' means a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
the truth of the matter asserted in the statement." Utah R. Evid. 801(c). Hearsay is
not admissible except as provided by law or the Utah Rules of Evidence. See id.R.
802.

¶28 Rule 803(4) of the Utah Rules of Evidence allows for the admission of hearsay
statements that are "made for—and [are] reasonably pertinent to—medical
diagnosis or treatment" and "describe[] medical history; past or present symptoms or
sensations; their inception; or their general cause." "If the statement meets both [of
rule 803(4)'s] qualifications, it is admissible because of the `patient's strong
motivation to be truthful' when discussing his or her medical condition with a
doctor."[7] Hansen v. Heath, 852 P.2d 977, 979 (Utah 1993) (quoting Fed. R. Evid.
803(4) advisory committee note), superseded by statute on other grounds as
recognized in Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc., 2017 UT 8,
391 P.3d 218. "Such statements carry a `guarantee of trustworthiness' entitling them
to an exception from the mandates of the hearsay rule." Id. (quoting Fed. R. Evid.
803(4) advisory committee note).

¶29 We acknowledge that Victim's statement to the nurse that she had been raped
four times constitutes hearsay, in that the out-of-court statement was introduced at
Defendant's trial to prove the truth of the matter asserted, i.e., that Victim had been
raped. See Utah R. Evid. 801(c). Nevertheless, we conclude that the evidence was
admissible under rule 803(4).

¶30 The record demonstrates that Victim's statements to the nurse were made for
the purpose of medical diagnosis or treatment. The nurse testified that she
introduced herself to Victim "as a nurse working with Safe and Healthy Families" and
that she told Victim that she "would be asking her questions about why [Victim] was
there and about [Victim's] health history and then [she] would also want to do a
physical exam." The nurse stated that Victim appeared to understand how the nurse
was going to "treat her or examine her." The nurse stated that asking Victim "why
she's there" was important for the physical exam and knowing "what parts of the
body we want to examine. And then also if they are complaining of a rape or sexual
assault, we would definitely want to examine closely the genitals."

¶31 The nurse testified that Victim reported that "she had been raped four times."
The nurse then asked Victim "if she was having any pain or if she had any injuries or
if she was bleeding," and Victim stated that she "had a sore throat and that she had
bruises on her neck, her stomach and her leg." Victim also stated that "she had
been touched on different parts of her body" and that "her arms were held down and
that she was choked." The nurse stated that the information from Victim helped her
know "where to look when [she] did the physical examination": "We'd want to make
sure and examine her neck closely for any trauma there and then also assess her
arms to see if there was anything, . . . bruises, any injuries to the bones or anything
like that." The nurse further testified that, "because there was ejaculation into the
vagina," she gave Victim an emergency contraceptive. In addition, upon "seeing [a]
history of penile penetration," the nurse gave Victim antibiotics "to treat for possible
exposure to Chlamydia and Gonorrhea." The nurse took swabs from Victim's
stomach, vaginal cavity and surrounding areas, and anus based on Victim's report
regarding ejaculation.

¶32 Based on the foregoing, we conclude that the trial court properly exercised its
discretion when it admitted Victim's statements to the nurse under rule 803(4).
Victim's statements suggest they were made for purposes of medical treatment or
diagnosis, and the statements allowed the nurse to address the possibility of
injuries, pregnancy, and sexually transmitted diseases.
¶33 Defendant also asserts that his Sixth Amendment right to confront witnesses
was violated by the nurse's testimony. The Sixth Amendment's Confrontation Clause
provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]" U.S. Const. amend. VI; see also Utah
Const. art. I, § 12 ("In criminal prosecutions the accused shall have the right . . . to
be confronted by the witnesses against him[.]"). In Crawford v. Washington, 541
U.S. 36 (2004), the United States Supreme Court explained that the Confrontation
Clause "applies to `witnesses' against the accused—in other words, those who `bear
testimony.'" Id. at 51. The Court held that testimonial statements by witnesses
absent from trial are admissible "only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine." Id. at 59; id. at
68 ("Where testimonial evidence is at issue, . . . the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for cross-
examination."). "To rank as `testimonial,' a statement must have a `primary purpose'
of `establish[ing] or prov[ing] past events potentially relevant to later criminal
prosecution.'" Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (alterations
in original) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)); see also Ohio
v. Clark, 135 S. Ct. 2173, 2180 (2015) ("In the end, the question is whether, in light
of all the circumstances, viewed objectively, the primary purpose of the conversation
was to create an out-of-court substitute for trial testimony." (quotation simplified)).

¶34 Defendant asserts, in a single sentence, that Victim's "outof-court statements


were `testimonial' because [Victim] was driven to the hospital by non-medical
practitioners after reporting being raped."[8] But Defendant offers no analysis or case
law supporting this claim; he fails to explain how the identity of the person who
transported Victim to the hospital for the exam relates to the primary purpose of
Victim's statements to the nurse at the hospital. By neglecting to do so, Defendant
has failed to carry his burden of demonstrating that Victim's out-ofcourt statements
were testimonial and that his confrontation rights were violated.[9]

¶35 Defendant further asserts that the medical diagnosis and treatment exception
"generally does not permit admitting hearsay where the victim names the perpetrator
while seeking medical treatment." Defendant asserts that Victim "identified
[Defendant] to [the nurse] as the perpetrator when his identity was not critical to
medical history, diagnosis, or treatment." In support of this argument, Defendant
cites the following exchange between the prosecutor and the nurse at trial:

Q [A]fter you got that general history of her current condition, . . . [d]id she talk about
any other touching by the defendant?
A She did say that she had been touched on different parts of her body. She said
her arms were held down and that she was choked.

Defendant asserts, in a footnote, that "[t]o the extent counsel failed to object, then
this Court should review for plain error as it should have been obvious to the court
that such testimony exceed[ed] the scope of medical diagnosis and was inconsistent
with Crawford."

¶36 "To demonstrate plain error, a defendant must establish that (i) an error exists;
(ii) the error should have been obvious to the trial court; and (iii) the error is harmful .
. . ." State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (quotation simplified). "To
establish that the error should have been obvious to the trial court, [a defendant]
must show that the law governing the error was clear at the time the alleged error
was made." Id. ¶ 16. Consequently, "an error is not obvious if there is no settled
appellate law to guide the trial court." State v. Vu, 2017 UT App 179, ¶ 13, 405 P.3d
879 (quotation simplified).

¶37 We first note that there is no testimony from the nurse explicitly stating that
Victim reported that Defendant was her assailant. To the extent that the nurse's
answer to the prosecutor's question can be read as an implicit acknowledgement
that Victim had reported that Defendant held down and choked Victim, Defendant
has failed to demonstrate that the alleged error should have been obvious to the trial
court.

¶38 Defendant has not cited, and we are not aware of, any Utah law holding that a
patient's identification of the person who injured him or her exceeds the scope of
medical treatment and diagnosis. Moreover, the law in this area does not appear to
be plainly settled by outside state or federal case law. See, e.g., United States v.
Gabe, 237 F.3d 954, 958 (8th Cir. 2001) ("In cases of sex abuse, the identity of the
abuser may be relevant to treating the victim's emotional and psychological injuries.
For this reason, we have upheld the admission of hearsay statements identifying the
abuser to a physician where the physician makes clear to the victim that the inquiry
into the identity of the abuser is important to diagnosis and treatment, and the victim
manifests such an understanding." (quotation simplified)); Clark v. State, 199 P.3d
1203, 1205, 1213 (Alaska Ct. App. 2009) (observing that "the medical diagnosis and
treatment hearsay exception does not normally encompass a patient's identification
of the person who hurt them or a patient's attributions of fault," but concluding that
the victim's statements were nontestimonial for Confrontation Clause purposes
where the "circumstances objectively establish that [the victim] and the emergency
room personnel shared the primary purpose of obtaining/providing proper medical
care for [the victim]"); People v. Cage, 155 P.3d 205, 218 (Cal. 2007) (concluding,
where a doctor asked the patient "what happened" and the patient identified his
assailant, that the patient's testimony was nontestimonial because the doctor's
question was "neutral in form"; the doctor "did not pursue that avenue further"; and
"[o]bjectively viewed, the primary purpose of the question, and the answer, was not
to establish or prove past facts for possible criminal use, but to help [the doctor] deal
with the immediate medical situation").

¶39 Additionally, a trial court is "not required to constantly survey or second-guess a


nonobjecting party's best interests or trial strategy and is not expected to intervene
in the proceedings unless the evidence would serve no conceivable strategic
purpose." State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation simplified).
"Further, the court should take measures to avoid interfering with potential legal
strategy or creating an impression of a lack of neutrality." Id.Consequently, "plain
error does not exist when a conceivable strategic purpose exists to support the use
of the evidence." Id. (quotation simplified). Here, the trial court could reasonably
have determined that defense counsel strategically chose not to object to this
portion of the nurse's testimony in order to highlight during closing argument that the
nurse never actually testified that Victim had reported to her that Defendant was her
assailant. Consequently, we cannot conclude that any error in admitting an implicit
identification of Defendant should have been obvious to the trial court.

¶40 In sum, we conclude that Victim's statements to the nurse were admissible
under rule 803(4) as statements made for purposes of medical diagnosis or
treatment. See Utah R. Evid. 803(4). In addition, Defendant has failed to
demonstrate that his Sixth Amendment right to confrontation was violated.

B. The Detective's Testimony


¶41 Defendant also contends that admitting the detective's testimony was a "more
egregious[]" violation of his right to confrontation than admitting the nurse's
testimony because the detective's testimony relayed Victim's accusation that
Defendant had raped her.

¶42 Defendant observes that at trial, the prosecutor asked the detective, "Did you
explain to [Defendant] why you wanted to talk to him?" The detective replied, "I did. I
explained that there [were] allegations made by [Victim] claiming that she alleged
that [he] had raped her." According to Defendant, the detective's "testimony that
[Victim] claimed [Defendant] raped her" was "simply a roundabout way of making it
known to the jury that [Victim] had accused [Defendant] of rape, and that [the
detective] believed [Victim] was truthful." Defendant acknowledges that defense
counsel did not object to the detective's testimony and that "this error was
unpreserved." Defendant asserts that "the plain error, exceptional circumstances
and [ineffective assistance of counsel] rules apply."

¶43 The Utah Supreme Court has held that "unpreserved federal constitutional
claims are not subject to a heightened review standard but are to be reviewed under
our plain error doctrine." State v. Bond, 2015 UT 88, ¶ 44, 361 P.3d 104. Again, to
establish plain error, Defendant "must demonstrate (1) that there was an error, (2)
that it should have been obvious to the trial court, and (3) that it was harmful." Id. ¶
48. "An error is harmful if, absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant, or phrased differently, if our confidence in
the verdict is undermined." Id. ¶ 49 (quotation simplified). Like preserved claims of
non-constitutional error, Defendant bears the burden of demonstrating
prejudice. See State v. Clark, 2016 UT App 120, ¶ 9, 376 P.3d 1089.

¶44 As previously discussed, "where testimonial evidence is at issue," "the Sixth


Amendment demands what the common law required: unavailability and a prior
opportunity for crossexamination." Crawford v. Washington, 541 U.S. 36, 68 (2004).
However, in Crawford, the Supreme Court explained that the Confrontation Clause
is not violated when testimonial statements are admitted for purposes other than
establishing the truth of the matter asserted. See id. at 59 n.9 (citing Tennessee v.
Street, 471 U.S. 409, 414 (1985)); see also, e.g., Williams v. Illinois,567 U.S. 50, 70
(2012) (plurality opinion) ("Crawford, while departing from prior Confrontation Clause
precedent in other respects, took pains to reaffirm the proposition that the
Confrontation Clause does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted." (quotation
simplified)); People v. Cage, 155 P.3d 205, 211 n.6 (Cal. 2007)("Crawford made
clear that there are no confrontation clause restrictions on the introduction of out-
ofcourt statements for nonhearsay purposes.").

¶45 Here, even assuming that Victim's statement to the detective was testimonial, its
admission did not violate Defendant's right to confrontation, because the statement
was not offered at trial to prove the truth of the matter asserted. SeeCrawford, 541
U.S. at 59 n.9; see also Street, 471 U.S. at 413-14 (concluding, where the
prosecutor did not introduce an accomplice's out-of-court confession to prove the
truth of the accomplice's assertions, that the confession was not hearsay and that
the "nonhearsay aspect of [the accomplice's] confession . . . raise[d] no
Confrontation Clause concerns"); Utah R. Evid. 801(c). Rather, the context of the
detective's testimony indicates that his recitation of Victim's accusation against
Defendant was offered not to establish that Defendant had raped Victim, but to
explain the reason for the interview. Specifically, the detective needed to speak with
Defendant regarding an allegation of rape. Accordingly, there was no Confrontation
Clause violation, and thus, no error.

¶46 Nevertheless, Defendant asserts that, "but for [the detective's] testimony, which
corroborates [the nurse's testimony] on [the single rape conviction] alone, the jury
would have acquitted [him] of Count 1 as it did with Counts 2 & 3." We are not
persuaded. Even without the detective's testimony, the DNA evidence was sufficient
for a reasonable jury to find that Defendant and Victim had sexual intercourse at
least once, and the jury could have reasonably believed the nurse's testimony that
Victim reported that she had been raped. Infra ¶ 53. We conclude that the
detective's testimony did not violate Defendant's right to confrontation and that
Defendant cannot demonstrate that the trial court plainly erred in this
regard. See Bond, 2015 UT 88, ¶ 48.

¶47 Defendant also asserts that defense counsel was ineffective for not objecting to
the detective's testimony regarding Victim's statements. To demonstrate ineffective
assistance of counsel, a defendant must show that defense counsel's performance
was deficient and that this deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Because the detective's testimony did not
violate Defendant's confrontation rights, any objection on Confrontation Clause
grounds would have been futile. State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d
52 ("The failure of counsel to make motions or objections which would be futile if
raised does not constitute ineffective assistance." (quotation simplified)).
Accordingly, defense counsel's failure to object did not constitute ineffective
assistance.[10]

III. Sufficiency of the Evidence


¶48 Defendant contends that the State's evidence was insufficient to convict him of
rape. Defendant concedes that his challenge to the sufficiency of the evidence is
unpreserved,[11] and he therefore challenges the sufficiency of the evidence under
the plain-error and ineffective-assistance exceptions to the preservation rule.[12]

¶49 To establish plain error regarding the sufficiency of the evidence, "an appellant
must show `first that the evidence was insufficient to support a conviction of the
crime[s] charged and second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.'" State v. Diaz, 2002 UT
App 288, ¶ 32, 55 P.3d 1131 (alteration in original) (quoting State v. Holgate, 2000
UT 74, ¶ 17, 10 P.3d 346).

¶50 "We first examine the record to determine whether, `after viewing the evidence
and all inferences drawn therefrom in a light most favorable to the jury's verdict, the
evidence is sufficiently inconclusive or inherently improbable such that reasonable
minds must have entertained a reasonable doubt that the defendant committed the
crime[s] for which he or she was convicted.'" Id. ¶ 33 (alteration in original)
(quoting Holgate, 2000 UT 74, ¶ 18). "Only then will we undertake an examination of
the record to determine `whether the evidentiary defect was so obvious and
fundamental that it was plain error to submit the case to the
jury.'" Id.(quoting Holgate, 2000 UT 74, ¶ 18).

¶51 "A person commits rape when the actor has sexual intercourse with another
person without the victim's consent." Utah Code Ann. § 76-5-402(1) (LexisNexis
2017). Accordingly, in this case, the State was required to present evidence
demonstrating that Defendant had nonconsensual sexual intercourse with
Victim. See id.

¶52 At trial, the nurse testified that Victim had reported that "she had been raped
four times." The nurse further testified that "there was ejaculation into [Victim's]
vagina" and that based on that information, she took swabs from Victim's stomach,
vaginal cavity and surrounding areas, and anus. The forensic biologist testified that
she tested the swabs for seminal fluid and was able to "identif[y] sperm on . . . the
vaginal swabs, anal swabs and stomach swabs." The DNA expert testified about the
"five basic steps" in DNA analysis generally and about her DNA analysis in this case
specifically. She stated that Defendant's DNA matched the DNA found in Victim's
sexual assault kit. The DNA expert testified that the probability of an unrelated
individual, randomly drawn from the population, matching the DNA profile "turns out
to be in Caucasians 1 in 44 sextillion, in blacks it would be 1 in 350 sextillion, and in
southwestern Hispanics it would be one in 340 quintillion."

¶53 Defendant asserts that "detracting from the foregoing" evidence is the fact that
he "denied having [a] sexual encounter with [Victim], consensual or otherwise," and
the fact that the jury acquitted him of two counts of rape, thus "illustrating that the
State's case was not `utterly' overwhelming." But as the State notes, this argument
"ignores the physical DNA evidence in the case." The DNA evidence revealed the
presence of Defendant's DNA in Victim's vagina, and while the DNA evidence does
not necessarily support multiple instances of sexual intercourse between Defendant
and Victim, it does support a finding that Defendant and Victim had sexual
intercourse at least once. And even though the nurse testified that Victim reported
that she had been raped multiple times, which supports the element of nonconsent,
a reasonable jury could have determined that the evidence only supported a finding
that Defendant raped Victim one time.

¶54 Reviewing the evidence and the reasonable inferences that result from
examining the evidence, we see nothing to suggest that "reasonable minds must
have entertained a reasonable doubt" that Defendant had nonconsensual sexual
intercourse with Victim. See State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d
346(quotation simplified). Thus, there was sufficient evidence to convict Defendant
of one count of rape, and we conclude that the trial court did not commit plain error
in submitting the matter to the jury for determination.

¶55 Defendant also asserts that defense counsel "was constitutionally ineffective for
not making the motion for a directed verdict on count 1." Again, to demonstrate
ineffective assistance of counsel, a defendant must show that defense counsel's
performance was deficient and that this deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, "the failure
of counsel to make motions or objections which would be futile if raised does not
constitute ineffective assistance." State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d
52(quotation simplified). Here, Defendant denied having any sexual contact with
Victim, and yet his DNA was found inside of Victim's vagina. Moreover, the nurse
testified that Victim had reported that she had been raped. Consequently, there was
sufficient evidence to support the jury's verdict of one count of rape, and defense
counsel therefore did not render deficient performance by failing to move for a
directed verdict on count one.
IV. Cumulative Error
¶56 Finally, Defendant contends that "[c]umulative error warrants reversal of [his]
conviction and a new trial ordered." "Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors undermines our confidence
that a fair trial was had." State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (quotation
simplified). "In assessing a claim of cumulative error, we consider all the identified
errors, as well as any errors we assume may have occurred." Id.

¶57 After considering the circumstances of this case and the resolution of
Defendant's other claims on appeal, our confidence that Defendant received a fair
trial has not been undermined. We therefore reject Defendant's cumulative error
claim.

CONCLUSION
¶58 We conclude that any error in omitting the proposed rule 412 evidence
regarding Victim's prior rape accusations was harmless beyond a reasonable doubt.
In addition, Victim's statements to the nurse were admissible under rule 803(4) as
statements made for purposes of medical diagnosis or treatment, and Defendant
has failed to demonstrate that his Sixth Amendment right to confrontation was
violated with regard to both the nurse's and the detective's testimonies. Lastly,
because there was sufficient evidence to support the jury's verdict, the trial court did
not plainly err by submitting the case to the jury.

¶59 Affirmed.

[1] Because recent amendments to section 76-5-402 do not impact our analysis, we cite the current
version of the Utah Code for convenience.

[2] "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v.
Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. "We present conflicting evidence only as necessary to
understand issues raised on appeal." State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

[3] A quintillion is 1 followed by 18 zeros (1018) and a sextillion is 1 followed by 21 zeros (1021).

[4] Both parties acknowledge that, during the preliminary hearing, the trial court's tape recording device
stopped working. The parties later stipulated to the facts regarding Victim's preliminary hearing testimony.

[5] Defendant does not argue on appeal that defense counsel was ineffective for not seeking to introduce
Victim's preliminary hearing testimony.

[6] Following defense counsel's objection, the trial court held a bench conference. That discussion does
not appear in the trial transcript, but the trial court apparently overruled defense counsel's objection and
therefore allowed the State to proceed with its questioning of the nurse.
[7] "Statements made for purposes of medical diagnosis and treatment `need not have been made to a
physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be
included.'" Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 17 n.2, 176 P.3d 446 (quoting Fed. R. Evid.
803(4) advisory committee note).

[8] The identity of the "non-medical practitioners" is unclear.

[9] Defendant also contends that "neither of the parties' counsel nor the court contemplated instructing the
jury to disregard Nurse's testimony, which exceeded the scope of medical diagnosis, or attempt[ed] to
alleviate its impact for Confrontation Clause purposes." According to Defendant, "[his] counsel was either
ineffective or it was plain error for the court to not caution the jury." Given our resolution of Defendant's
rule 803(4) and Confrontation Clause arguments, we have no occasion to address this argument further.

[10] Defendant also asserts that "the State invited this error" by not filing a pretrial brief on the
"admissibility of [Victim's] hearsay" and by "deliberately walking [the detective] straight into the
unnecessary testimony." According to Defendant, "because the State invited the error, exceptional
circumstance warrants review and reversal." "The exceptional circumstances doctrine is applied
sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was
not properly preserved for appeal would have resulted in manifest injustice." State v. Johnson,2017 UT
76, ¶ 29 (quotation simplified). The doctrine applies "where a rare procedural anomaly has either
prevented an appellant from preserving an issue or excuses a failure to do so." Id. (quotation simplified).
Although it is unclear, Defendant's reference to the State's "invited error" appears to be an attempt to
assert a prosecutorial misconduct claim. Either way, Defendant provides no analysis as to why an error of
this type constitutes an exceptional circumstance. Accordingly, we decline to address this assertion
further.

[11] Before closing arguments, defense counsel moved for a directed verdict on counts two (rape), three
(rape), and four (object rape), but not count one (rape). The State conceded to the directed verdict on
count four, and the trial court dismissed that count. With regard to counts two and three, defense counsel
argued that "there's been evidence supporting a possible finding of one count [of rape] but nothing to
suggest there were multiple counts." The trial court ultimately denied Defendant's motion for directed
verdict on counts two and three and submitted the three counts of rape to the jury. On appeal, Defendant
observes that defense counsel moved for directed verdicts on counts two through four, and he
acknowledges that "it very well may be that counsel believed it would be futile to move for dismissal on
Count 1."

[12] Defendant also asserts that we should address this issue under the exceptional-circumstances
exception to the preservation rule. Again, this exception applies "where a rare procedural anomaly has
either prevented an appellant from preserving an issue or excuses a failure to do so." Id. (quotation
simplified). Defendant has failed to present any rare procedural anomaly or other exceptional
circumstance that might justify his failure to preserve his sufficiency of the evidence argument. See
id.Accordingly, we decline to address this argument further.

During discovery, the State filed a motion under rule 16 of the Utah Rules of Criminal
Procedure requesting a sample of Defendant's DNA via buccal swab — a method of
collecting DNA by swabbing the interior surface of a person's cheek.
STATE OF LOUISIANA, Appellee,
v.
TIMOTHY DESHUN KELLY, Appellant.
No. 51,701-KA.

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 23, 2018.

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court
No. 337,487, Honorable Katherine C. Dorroh, Judge.

LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant.

TIMOTHY D. KELLY, Pro Se.

JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, JASON W.


WALTMAN, Assistant District Attorneys, Counsel for Appellee.

Before BROWN, COX, and McCALLUM, JJ.

Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.

BROWN, C.J.

On August 25, 2016, following a jury trial, defendant, Timothy Deshun Kelly, was convicted
of third degree rape. On February 2, 2017, defendant was adjudicated a fourth-felony
habitual offender and was sentenced to a term of life imprisonment without the benefit of
probation, parole, or suspension of sentence. Defendant now appeals his conviction and
sentence. For the following reasons, defendant's conviction and sentence are affirmed.

FACTS
On January 26, 2016, defendant, Timothy Deshun Kelly, was charged by bill of information
with the third degree rape of L.H.[1] on or about April 14, 2015. L.H., a developmentally
disabled child, was 15 at the time of the offense, and the defendant was 35. Defendant
provided L.H. with alcohol and cocaine, both of which she consumed. Defendant filed a
motion for post verdict judgment of acquittal, arguing that the evidence was insufficient to
convict.

The state filed a habitual offender bill of information alleging that defendant was a fourth-
felony offender. The trial court denied defendant's motion for post verdict judgment of
acquittal. Thereafter, the trial court sentenced defendant to 20 years at hard labor to be
served without the benefit of parole, probation, or suspension of sentence. [2]
On February 2, 2017, defendant's habitual offender hearing was conducted. The state
provided evidence to prove defendant's prior felony convictions for the following: (1) a
September 29, 1999, conviction for possession of cocaine; (2) a January 12, 2004,
conviction for distribution of cocaine; and, (3) a September 29, 2010, conviction for
distribution of cocaine. The trial court took judicial notice of defendant's August 25, 2016,
conviction for third degree rape and adjudicated defendant a fourth-felony habitual offender.
The trial court vacated defendant's 20-year sentence and resentenced him to serve a life
sentence without the benefit of probation, parole, or suspension of sentence. [3] Defendant
has appealed.

DISCUSSION
Sufficiency of the Evidence
Defendant, in both his first counseled and only pro se assignment of error, alleges that the
evidence was insufficient to convict him of third degree rape. Defendant concedes that he
and L.H. had sexual intercourse, but he asserts that the acts were consensual. Defendant
argues that the state failed to prove that L.H. was unable to consent to the sex acts due to
"a stupor or abnormal condition of mind produced by an intoxicating agent or any cause" or
"through unsoundness of mind." Defendant asserts that although there was testimony that
L.H. was in special education classes, there was no expert testimony to establish that L.H.
was incapable of understanding the acts. Furthermore, while there was evidence that L.H.
had ingested cocaine, there was no evidence to establish "how" intoxicated she was at the
time she had sex with defendant.

L.H., who was 15 at the time of trial,[4] testified that she met defendant while walking her
baby brother to a gym for food. Defendant pulled up next to her and asked for her phone
number. He called while she was still walking with her brother and met up with her. L.H. got
into defendant's car and placed her baby brother in the back seat. Defendant then engaged
in vaginal sexual intercourse with L.H. At some point, L.H. asked defendant to stop and he
did. Afterwards, L.H. took her brother and walked home.

Later that evening, defendant called L.H. but her mother answered. Defendant hung up and
tried calling back several times, but L.H.'s mother kept answering so defendant kept
hanging up.

Sometime later that same night, defendant called and L.H. answered. Defendant asked L.H.
"where the F [she] was" and told her to hurry and come outside. L.H. got into defendant's
car and he drove her to his "homeboy house" on Greenwood Road in Shreveport,
Louisiana. Defendant instructed L.H. to go hide in some bushes while defendant took his
friend and his friend's girlfriend somewhere. L.H. did as she was told and defendant
returned shortly after and drove L.H. to a liquor store where he purchased vodka. Defendant
drank some and told L.H. to finish the bottle. L.H. drank the alcohol, which she described as
"strong" and then "felt dizzy."

The two returned to defendant's friend's house and had sex in one of the bedrooms. L.H.
testified that she knew she was having sex with defendant, but stated that she did not want
to do so. Afterwards, defendant's friend came upstairs and wanted to have sex with L.H. but
she said "no." She then asked defendant to take her home. Defendant got some cocaine
from his friend and gave it to L.H. He told her to sniff it and she did. She said it made her
feel "dizzy."

Defendant then drove L.H. to his sister's apartment. L.H. slept on the floor of a bedroom. In
the early morning, L.H.'s mother called defendant. L.H. overheard defendant telling her
mother that L.H. was with his son and a girl named "Nalo." Defendant then dropped L.H. off
near her stepfather's house. L.H. had no further contact with defendant. During cross-
examination, L.H. admitted that she told defendant that her little brother was her child so
that he would think she was older.

Brittany Hughes, a sexual assault nurse examiner ("SANE"), testified that she performed a
sexual assault examination on L.H. at Willis-Knighton Medical Center. Hughes stated that it
was obvious that L.H. was mentally delayed, a fact confirmed by L.H.'s mother, who said
that L.H. operated on a third-grade level. Hughes took swabs of L.H.'s mouth, breasts,
vagina, and anus; she also took blood and urine samples from L.H. Hughes took
photographs of L.H.'s vagina which indicated a laceration and tears to her hymen and
vagina. L.H.'s pants were stained red, and Hughes noticed blood coming from her vagina.
None of L.H.'s injuries required suturing or pain medication.

Shreveport Police Detective Monique Robinson met L.H. at the hospital. Detective
Robinson noticed that L.H. had difficulty describing certain things, failed to make complete
statements, and could not pronounce words correctly; her mother confirmed to Detective
Robinson that L.H. suffered developmental delays. Based on this information, Detective
Robinson stopped questioning L.H., but allowed L.H. to give a statement regarding what
had happened to her. Detective Robinson arranged for L.H. to be interviewed by a forensic
interviewer at the Gingerbread House Children's Advocacy Center ("Gingerbread House").

Following L.H.'s interview at the Gingerbread House, she showed Detective Robinson two
locations where she said defendant, whom she referred to as "Anthony," took her to have
sex. L.H. identified a house off of Greenwood Road as defendant's "homeboy house." L.H.
stated that she consumed a daiquiri before having sex with defendant at defendant's
friend's house, and that defendant instructed her to sniff a white substance he referred to as
"soft" while there.

L.H. then directed Detective Robinson to the Aspen Apartments on Baird Road in
Shreveport. L.H. recalled that defendant took her to his sister's apartment, but she could not
recall the specific apartment.

L.H. told Detective Robinson that when she first met defendant, while she was walking with
her brother, he took her to Ford Park and had sex with her.

Later, L.H. identified the defendant in a photographic lineup as the man who had sex with
her. Defendant was arrested and a sample of his DNA was collected and sent to the North
Louisiana Crime Lab. His last known address was for an apartment at the Aspen
Apartments. Defendant has an older brother named "Anthony." Detective Robinson testified
that defendant's date of birth is August 20, 1979.
Alex Person, a forensic interviewer with a degree in Family and Child Studies and a minor in
Child Development, testified that she conducted L.H.'s forensic interview at the Gingerbread
House on April 20, 2015.[5] Person identified a video recording of the interview, which was
played in open court. In the recording, L.H. stated that she was walking her one-year-old
brother when defendant drove up beside her in his car. He told L.H. that she was "pretty"
and "fine" and asked for her phone number.

L.H. stated that she gave defendant her phone number, and he began calling her while she
was still walking with her brother. L.H. answered and defendant drove back to see her.
Defendant told L.H. to get in his car and she complied. L.H.'s little brother was in the back
seat. Defendant then laid L.H.'s seat back, climbed on top of her, and put his "peginas" in
her "private part." L.H. identified a "peginas" as a penis on an anatomical drawing of a male.
She explained, using an anatomical drawing of a female, that defendant put his penis in her
"private part" (vagina) until "nut" (semen) came out of his penis. He then dropped L.H. and
her brother off on the same street where they had been walking.

L.H. stated that the next evening defendant called her and came to her house. He asked
her "where the fuck she was" and told her to come outside and get in his car. L.H. said that
she was afraid of defendant because he told her that if she "went with someone else that he
would beat [her] to death." Defendant took L.H. to his "homeboy house," picked up his
friend, and they all drove to a liquor store. Defendant bought alcohol and told L.H. to drink it,
so she did. Then, defendant took L.H. back to his "homeboy house" and had sex with her.
L.H. stated that she also "sucked his peginas." L.H. then told defendant to take her home,
but he gave L.H. some cocaine and told her to sniff it. Defendant then drove L.H. to his
sister's house where L.H. slept on the floor of a bedroom. The next morning, defendant had
sexual intercourse with L.H. again. L.H.'s mother called defendant, and he hung up on her.
Defendant then dropped L.H. off near her home. L.H. told Person that she had never had
sexual intercourse with anyone before having sex with defendant.

Person stated that based on her interview of L.H., she believed that L.H. suffered from
developmental delays and had an intellectual age closer to a 9- to 12-year-old. Person said
that she had never heard a penis referred to as a "peginas."

Audra Williams, an expert in DNA analysis at the North Louisiana Crime Lab, testified that
she received a reference sample from L.H. (a buccal swab and blood sample) and a
physical evidence recovery kit ("PERK") containing oral swabs, breast swabs, neck swabs,
female swabs, hair combings, and then external genitalia, perianal and anal swabs taken
from L.H. by a sexual assault nurse on April 14, 2015. Williams discovered spermatozoa on
the perianal swab. Further analysis allowed Williams to detect DNA from L.H. and an
unknown male on the perianal and anal swab. Later, a buccal swab taken from defendant
was sent to the crime lab for analysis and comparison. Williams testified that the results
indicated that defendant's DNA matched the DNA found on the perianal swab taken from
L.H. during the sexual assault examination.

Carla Colbert, an expert in toxicological analysis at the Louisiana State Police Crime
Laboratory, testified that she received blood and urine samples taken from L.H. on April 14,
2015. L.H.'s urine sample indicated the presence of benzoylecgonine, an active cocaine
metabolite.
L.H.'s foster mother, ShirleyWebb, testified that L.H. had lived with her for approximately
two months at the time of trial. L.H. was attending Doyline High School where she was
enrolled in special education classes. Webb explained that L.H. often gets confused while
doing everyday chores like getting dressed or taking care of her personal hygiene. Webb
had to show her how to use the shower. Webb stated that she does not allow L.H. to cook
because she's afraid she'll burn herself. L.H. will allow herself to be bossed around by
Webb's other foster child who is the same age as L.H. L.H. is closer to Webb's
granddaughter, a 12-year-old who helps L.H. with her homework.

The standard of appellate review for a sufficiency of the evidence claim is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied,541 U.S. 905, 124 S. Ct. 1604,
158 L. Ed. 2d 248 (2004); State v. Carter, 42,894 (La. App. 2d Cir. 01/9/08), 974 So. 2d
181, writ denied, 08-0499 (La. 11/14/08), 996 So. 2d 1086. This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to
substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-
0477 (La. 02/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La. App. 2d Cir. 01/14/09), 1
So. 3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So. 3d 297.

The trier of fact makes credibility determinations and may accept or reject the testimony of
any witness. State v. Demery, 49,732 (La. App. 2d Cir. 05/20/15), 165 So. 3d 1175, writ
denied, 15-1072 (La. 10/17/16), 207 So. 3d 1067. A reviewing court may not impinge on the
fact finder's discretion unless it is necessary to guarantee the fundamental due process of
law. State v. Casey, 99-0023 (La. 01/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840,
121 S. Ct. 104, 148 L. Ed. 2d 62 (2000); State v. Demery, supra.

At the time of the offense, La. R.S. 14:43 provided, in pertinent part: [6]

(A) Simple rape [third degree rape] is a rape committed when the anal, oral, or vaginal
sexual intercourse is deemed to be without the lawful consent of a victim because it is
committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by
reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any
cause and the offender knew or should have known of the victim's incapacity.
(2) When the victim, through unsoundness of mind, is temporarily or permanently incapable
of understanding the nature of the act and the offender knew or should have known of the
victim's incapacity.

The element of a stupor or abnormal condition of the mind produced by an intoxicating


agent, such as alcohol, does not require an unaware victim with no capacity to resist, but
rather an agent-influenced incapacity to effectively resist the advances of the
perpetrator. See State v. Porter, 93-1106 (La. 07/05/94), 639 So. 2d 1137, 1143. The
degree of alcohol influence is for the jury to decide. Id. The provisions of La. R.S. 14:43
criminalize behavior which "takes advantage of a person who has had too much to drink
and participates in an act to which he or she would not otherwise have consented." State v.
Clark, 04-901 (La. App. 3d Cir. 12/08/04), 889 So. 2d 471, 475.

With regard to the "unsoundness of mind" element of La. R.S. 14:43, courts have held that
competency to testify is not the same as the capacity to understand the nature of the sexual
act. State v. Peters, 441 So. 2d 403 (La. App. 4th Cir. 1983),writ denied, 530 So. 2d 560
(La. 1988); State v. Ward, 04-1295 (La. App. 5th Cir. 04/26/05), 903 So. 2d 480, writ
denied, 05-1718 (La. 03/17/06), 925 So. 2d 533. There is a vast difference between
understanding the distinction between the truth and a lie and understanding the nature and
consequences of a sexual assault. State v. Peters, supra. In State v. McDowell, 427 So. 2d
1346, 1350 (La. App. 2d Cir. 1983), this Court explained that the relevant inquiry regarding
the victim's ability to consent in rape cases is whether the victim "understands and
appreciates the nature of the act of sexual intercourse, its character and the probable and
natural consequences which may attend it."

When viewed in a light most favorable to the prosecution, the evidence adduced at trial was
sufficient to convict defendant of third degree rape. The medical and forensic evidence
clearly establishes that defendant had vaginal sexual intercourse with L.H., a fact defendant
does not dispute. The evidence was sufficient to support the jury's finding that L.H. was
unable to consent to at least one of the sexual acts as she was under the influence of an
intoxicating agent. L.H. testified, consistent with her Gingerbread House interview and her
statement to Detective Robinson, that prior to having sex with defendant at his friend's
house she consumed, at the defendant's instruction, "strong" alcohol which made her feel
"dizzy." Although L.H. testified that she never lost consciousness, she explained that she
did not want to have sex with defendant.

The evidence was also sufficient to support a finding that L.H. was unable to consent to any
of the sexual acts because she was incapable of doing so through unsoundness of mind
and defendant knew, or should have known, of her incapacity. The Gingerbread House
video recording reveals that L.H. is not the average 15-year-old. During her interview and at
trial, L.H. was distracted easily, used the term "peginas" to describe the defendant's penis,
and did not seem to comprehend the significance of her first sexual experience. Person, an
experienced forensic interviewer, testified that L.H. appeared to have an intellectual age of
a 9- to 12-year-old and suffered obvious developmental delays. Likewise, Hughes and
Detective Robinson both noticed immediately that L.H. suffers developmental delays. L.H.'s
mother, J.H., confirmed as much and explained that L.H. operates at a third-grade level.
L.H.'s foster mother, Webb, testified that at the time of trial L.H. was attending special
education classes and had trouble taking care of her personal needs. Accordingly, this
assignment of error lacks merit.

Excessive Sentence
Defendant argues that his life sentence is excessive. He notes that all of his prior
convictions are drug offenses. He also points out that the trial court did not note any
mitigating factors when imposing his original 20-year sentence.

The state counters that defendant's original 20-year sentence was vacated and thus the trial
court's alleged failure to consider the sentencing factors provided in La. C. Cr. P. art. 894.1
is irrelevant. The state notes that defendant received the mandatory life sentence per La.
R.S. 15:529.1(A)(4)(b).

Prior to sentencing defendant to the original sentence of 20 years, the trial court noted its
review of the La. C. Cr. P. art. 894.1 sentencing factors and found that the following applied:
(1) there was an undue risk defendant would reoffend if given a probated or suspended
sentence; (2) defendant was in need of correctional treatment or a custodial environment;
and, (3) a lesser sentence would deprecate the seriousness of defendant's crime. The trial
court found no mitigating factors that applied to defendant's case.

On February 2, 2017, the trial court found defendant to be a fourth-felony offender, with two
of the prior offenses being drug offenses punishable by more than a 10-year sentence, and
the last felony being a sex offense with a victim under the age of 18. The trial court further
noted that defendant's criminal record evidenced his intention to continue to reoffend and
demonstrated that he is in need of correctional treatment. The trial court then sentenced
defendant to a life sentence to be served without the benefit of parole, probation, or
suspension of sentence.

A sentence violates La. Const. art. I § 20 if it is grossly out of proportion to the seriousness
of the offense or nothing more than a purposeless infliction of pain and suffering. A
sentence is grossly disproportionate if, when the crime and punishment are viewed in light
of the harm to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.
01/15/02), 805 So. 2d 166; State v. Small,50,388 (La. App. 2d Cir. 02/24/16), 189 So. 3d
1129, writ denied, 16-0533 (La. 03/13/17), 212 So. 3d 1158.

The minimum sentences mandated by the habitual offender law are presumed to be
constitutional. State v. Johnson, 97-1906 (La. 03/04/98), 709 So. 2d 672. The legislature's
determination of an appropriate minimum sentence should be afforded great deference by
the judiciary. State v. Capers, 43,743 (La. App. 2d Cir. 12/03/08), 998 So. 2d 885, writ
denied, 09-0148 (La. 10/02/09), 18 So. 3d 102. Courts have the power to declare a
sentence excessive under La. Const. art. I, § 20 although it falls within the statutory limits
provided by the legislature; however, this power should be exercised only if the court finds
that there is clear and convincing evidence in the particular case before it which would rebut
this presumption of constitutionality. State v. Johnson, supra; State v. Lindsey, 99-3302 (La.
10/17/00), 770 So. 2d 339, cert. denied, 532 U.S. 1010, 121 S. Ct. 1739, 149 L. Ed. 2d 663
(2001).

At the time of defendant's underlying offense,[7] La. R.S. 15:529.1 provided, in relevant part:

(A) Any person who, after having been convicted within this state of a felony, or who, after
having been convicted under the laws of any other state or of the United States, or any
foreign government of a crime which, if committed in this state would be a felony, thereafter
commits any subsequent felony within this state, upon conviction of said felony, shall be
punished as follows:
....
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would
be punishable by imprisonment for any term less than his natural life then:
...
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of
violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the
victim is under the age of eighteen at the time of commission of the offense, or as a
violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment
for ten years or more, or of any other crime punishable by imprisonment for twelve years or
more, or any combination of such crimes, the person shall be imprisoned for the remainder
of his natural life, without benefit of parole, probation, or suspension of sentence.

Defendant fails to articulate any reason why his circumstances justify a departure from the
mandatory life sentence. His criminal record demonstrates a likelihood of recidivism and the
nature of his most recent offense—the rape of a young developmentally challenged girl—is
particularly disturbing. The mandatory life sentence does not shock the sense of justice.
This assignment of error lacks merit.

CONCLUSION
For the foregoing reasons, defendant's conviction and sentence are affirmed.

AFFIRMED.

[1] In accordance with La. R.S. 46:1844(W), the victim and her mother will be identified by their initials only.

[2] Defendant waived the sentencing delay provided in La. C. Cr. P. art. 873.

[3] The transcript of the habitual offender/sentencing hearing indicates that defendant was provided verbal and written
notice of his obligation to register as a sex offender; he was also advised of his right to seek post-conviction relief.

[4] L.H. testified that her birthday is February 26, 2000. L.H. identified a book, admitted into evidence as S-4, as her
favorite book; the book is recommended for children ages 6 to 9.

[5] Person testified that she has completed over a thousand forensic interviews of children age 2 to 17.

[6] In 2015, the Louisiana legislature modified La. R.S. 14:43, changing the name of the offense from "simple rape" to
"third degree rape." Any act in violation of R.S. 14:43 committed on or after August 1, 2015, was to be referred to as
"third degree rape." Defendant's underlying offense was committed on or about April 14, 2015, but to avoid confusion
and to maintain consistency with the record, this opinion will refer to defendant's crime as "third degree rape."

[7] The law in effect at the time of the commission of the offense is determinative of the penalty which is to be
imposed upon the convicted accused. State v. Parker, 03-0924 (La. 04/14/04), 871 So. 2d 317; State v.
Mizell, 50,222 (La. App. 2d Cir. 11/18/15), 182 So. 3d 1082.
ELIAS ARTEAGA-ROMAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
Nos. 09-17-00188-CR, 09-17-00189-CR, 09-17-00190-CR.

Court of Appeals of Texas, Ninth District, Beaumont.

Submitted March 29, 2018.


Opinion Delivered May 23, 2018.

Amy Waddle, William J. Delmore, III, for State of Texas.

Ivan Crespo, for Elias Arteaga-Roman, Appellant.

On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause Nos. 16-
07-08022-CR, 16-07-08242-CR, 16-05-05329-CR.

Before McKeithen, C.J., Kreger and Johnson, JJ.

Do Not Publish
MEMORANDUM OPINION
STEVE McKEITHEN, Chief Justice.

A jury convicted appellant Elias Arteaga-Roman of two charges of aggravated sexual


assault of a child and one charge of injury to a child. The jury assessed punishment at thirty
years of confinement for aggravated sexual assault of a child in trial cause number 16-07-
08022-CR, thirty years of confinement for aggravated assault of a child in trial cause
number 16-07-08242-CR, and four and a half years of confinement for injury to a child in
trial cause number 16-05-5329-CR. In five issues, Arteaga-Roman challenges the legal
sufficiency of the evidence and the denial of his motion for mistrial, and he argues that his
punishment in the aggravated sexual assault cases was cruel and unusual. We affirm the
trial court's judgments.

PERTINENT BACKGROUND
The indictments alleged that Arteaga-Roman intentionally or knowingly caused the sexual
organ of K.A., a child younger than fourteen, to "contact and/or penetrate" his mouth,
penetrated K.A.'s sexual organ by inserting his hand and intentionally or knowingly caused
bodily injury to D.B., a child younger than fourteen, "by applying pressure to D.B.'s nose
with a cloth or similar object[.]"

V.B., Arteaga-Roman's former wife and the mother of the child victims, testified that she,
Arteaga-Roman, and the children were living together after the divorce, but she and
Arteaga-Roman slept in separate rooms. V.B. testified that at the time of the offenses, D.B.
was eight years old and K.A. was six years old. V.B. explained that on the date of the
offense, she had left to go to her current partner's house and then to work. According to
V.B., D.B. called her and said she had been awakened with a rag on her face. V.B. believed
D.B. had experienced a nightmare, and she told D.B. to rest because it was just a
nightmare. V.B. testified that D.B. called her again, and after hearing what D.B. had to say,
she immediately returned home.

Upon arriving at the trailer, V.B. pulled in sideways so Arteaga-Roman would not see the
lights of the truck. V.B. explained that she did not want Arteaga-Roman to see the lights
because D.B. had told her that she was afraid Arteaga-Roman would awaken, and V.B.
testified that she was also afraid. When V.B. entered the trailer, she took D.B. outside, and
she testified that D.B. was scared and crying. After speaking with D.B., V.B. called the
police. V.B. testified that the police and an ambulance arrived, and the police questioned
them before entering the trailer to get Arteaga-Roman. According to V.B., K.A. was
eventually taken from the house by V.B. and the emergency medical technicians (EMTs),
and the EMTs checked both K.A. and D.B. in the ambulance before taking them to the
hospital.

According to V.B., when they arrived at the hospital, K.A. indicated that she wanted to tell
V.B. something. K.A. asked V.B. why her father had done what he did, and K.A. told her
mother that her father had "tickled her and given her little kisses in her part." V.B. testified
that she understood K.A. to be referring to her intimate part, which meant her sexual organ.
V.B. explained that K.A. said her father had tickled her private intimate part with his
mustache. The next day, K.A. and D.B. were interviewed separately at Children's Safe
Harbor. V.B. testified that she then sought counseling for the girls at Safe Harbor. V.B.
testified that after the offenses, D.B. "had a lot of nightmares[,]" and K.A. wanted her mother
to hug her throughout the night. According to V.B., Arteaga-Roman asked her to talk to the
victims about saying that the charges were untrue. V.B. also testified that in a letter to D.B.,
Arteaga-Roman had told D.B. to lie and say that she had made a mistake.

Deputy Nicholas Cook of the Montgomery County Sheriff's Office testified that he was
dispatched to a "child abuse call" at V.B.'s home in the early morning hours of April 28,
2016. Cook explained that V.B. informed him that one of the children had "called her and
told her that some inappropriate things had happened between the father and the two
daughters." Cook testified that V.B. spoke in broken English, so he had a Spanish-speaking
deputy with him at the scene. After V.B. told Cook what D.B. had told her, Cook and his
supervisor entered the trailer to make contact with Arteaga-Roman, and they found him
asleep in the bedroom. Cook testified that Arteaga-Roman seemed disoriented and
intoxicated, Cook could smell alcohol, and "[t]here were some alcoholic beverages in the
area." Cook explained that, because of the severity of the language barrier, he did not ask
Arteaga-Roman specific questions, and he instead called a detective to come to the scene.
The detective advised Cook by telephone to do a DNA swab of Arteaga-Roman, and Cook
did so. Cook testified that D.B. told the police that her father placed a cloth over her mouth,
which caused her "pain and discomfort in her mouth and her nose area."

Detective Shannon Acosta of the Montgomery County Sheriff's Office testified that she is
assigned to the Crimes against Children division, where she investigates cases of physical
and sexual abuse of children who are age thirteen and under. Acosta explained that she
was assigned to the case involving Arteaga-Roman because she was on call when Deputy
Cook called from the scene. Acosta testified that Cook informed her that Arteaga-Roman
had put a rag with a substance on it over one child's face, and "there was also an outcry of
oral contact to another child's genitalia." Cook informed Acosta that he had been unable to
locate the cloth.

Acosta instructed Cook by phone to swab Arteaga-Roman's face for any possible DNA
transfer and to obtain consent to search the house, and she authorized examinations for the
children with a sexual assault nurse. Acosta explained that when she arrived at the scene,
she met with Deputy Aguirre, who walked her through the scene and pointed out some
potentially key pieces of evidence, such as a lighter and a bottle of rubbing alcohol in the
master bedroom. Acosta stated that the lighter was significant because the children
mentioned that Arteaga-Roman had displayed it, and the bottle of rubbing alcohol was
significant because "the rag that was over [D.B.'s] face smelled to her like rubbing alcohol."
Acosta testified that upon lifting the lid on the trash can next to the porch outside, she saw a
pink rag on top of the trash, and she photographed the rag and collected it as evidence.
According to Acosta, when she lifted the rag out of the trash, she noticed that the rag "had
an overwhelming smell of rubbing alcohol." Acosta also found Acosta-Roman's police
identification from Mexico. Acosta testified that after securing the evidence at the crime lab,
she went to the hospital where the children were.

After Arteaga-Roman was arrested, Acosta obtained help from Deputy Aguirre to interview
Arteaga-Roman because Acosta does not speak Spanish fluently. Acosta and Aguirre
interviewed Arteaga-Roman in Spanish, and Acosta recorded the interview with her digital
recorder. According to Acosta, D.B. had told her that she woke up when it felt like someone
was trying to put something over her mouth. Acosta explained that Arteaga-Roman claimed
that he did not do anything and did not know who covered up D.B.'s face, although no one
else was at home. Acosta testified that Arteaga denied touching the children or walking
around naked, and he told the police that the children must have been dreaming. According
to Acosta, Arteaga-Roman stated that he had consumed eight to ten beers. Arteaga-Roman
consented to a buccal DNA swab, and Acosta took a sample from him. Acosta asked
Arteaga-Roman to provide a written statement, and she explained that with the exception of
Arteaga-Roman saying that he had lain down with the children, his written statement was
"pretty consistent[]" with his oral statement.

Acosta testified that the next day, she watched the forensic interviews of D.B. and K.A. at
Children's Safe Harbor via a closed circuit television in an adjoining room. Acosta explained
that the children were interviewed separately. As a result of the interviews with D.B. and
K.A., Acosta initiated charges against Arteaga-Roman for injury to a child as to D.B. and
aggravated sexual assault of a child or indecency with a child as to K.A. Acosta testified that
when she attempted to interview Arteaga-Roman again, he did not want to speak with her.
Defense counsel objected that Acosta's testimony constituted a comment on Arteaga-
Roman's right to remain silent, and he requested a jury instruction and moved for a mistrial.
The trial judge denied the motion for mistrial, but did instruct the jury to disregard the last
question and answer.
Acosta testified that she received a call from D.B.'s therapist, which caused Acosta to
become concerned about D.B. being told to recant. Acosta testified that she filed the case
with the district attorney's office, and the charges she turned in included two counts of
aggravated sexual assault of a child as to K.A. for making oral contact with K.A.'s genitalia
and for penetrating her genitalia with his hand. Acosta explained that when the rag was
analyzed, it tested "positive for the same type of alcohol that is in the rubbing alcohol."

Sexual assault nurse examiner Karin Hoffmann testified that she conducted sexual assault
examinations of K.A. and D.B. According to Hoffmann, when she took D.B.'s history, V.B.
was not in the room. Hoffmann testified that D.B. reported that Arteaga-Roman entered her
room and removed his pants and shirt, so that he "had nothing on." Hoffmann explained
that D.B. stated her father put a towel that smelled like medicine into her nose and mouth.
According to Hoffmann, D.B. stated that when she asked her father what he was doing, he
told her to go back to sleep because she was having a nightmare. D.B. told Hoffmann that
when she opened her eyes, her father "was standing there and touching his part, as she
pointed to her genitalia." According to Hoffmann, D.B. said that Arteaga-Roman got into
K.A.'s bed.

Hoffmann explained that as D.B. gave her history, D.B. kept eye contact and spoke fluently
and without hesitation. Hoffmann described D.B. as very talkative and "[v]ery protective of
her sister and her mom." According to Hoffman, because D.B. reported that Arteaga-Roman
tried to give her medicine, she ordered an evidence collection, which came back negative.

Hoffmann testified that she examined K.A., who was six years old at the time. According to
Hoffmann, K.A. stated, "I hear[d] my sister yell, get away. My dad was next to me in my
bed. He had nothing on, no clothes." Hoffmann explained that if an adult male put his lips
on a child's sexual organ or opened the genitalia with his hand, she would not necessarily
expect to find any injury upon examining the child's genitalia. Hoffmann testified that she
collected evidence from inside K.A.'s mouth, perianal area, labia majora, and labia minora,
and she also collected K.A.'s underwear. During cross-examination, Hoffmann agreed that
nothing in either child's account to her described an aggravated sexual assault.

Stephanie Ventura, a bilingual forensic interviewer at Children's Safe Harbor, testified that
she interviewed D.B. and K.A. According to Ventura, D.B. is smart and she "talked a lot."
Ventura explained that D.B. said "her dad had raped her little sister." D.B. told Ventura that
Arteaga-Roman put an alcohol-soaked rag onto her nose "and squeezed it hard to where
she couldn't breathe." D.B. told Ventura that she pushed Arteaga-Roman off, and he left the
room, but returned to the room naked. According to Ventura, D.B. stated that her father had
lifted her sister's nightgown, moved her sister's underwear, and kissed her sister's sexual
organ. Ventura testified that K.A. said that her father had lifted her nightgown and moved
her underwear, and she could feel his mouth. K.A. told Ventura that her father opened her
sexual organ with his hands. During cross-examination, Ventura testified that at one point,
K.A. testified that her sister told her that their father tried to rape them.

Amanda Balasko, a forensic scientist with the Texas Department of Public Safety, testified
that she examined swabs from a rag, blue lighter, and a bottle of rubbing alcohol, as well as
buccal swabs and swabs of Arteaga-Roman's face and mouth area, and sexual assault kits
from the victims. Balasko explained that she also tested perianal swabs, swabs of the outer
and inner labia majora, and labia minora, as well as some panties. Balasko did not detect
semen from the panties. Jennifer Young, a forensic scientist with the Texas Department of
Public Safety Crime Laboratory in Houston, explained that she recovered a DNA profile
from outside the panties that was a mixture of three individuals: K.A., Arteaga-Roman, and
an unknown unrelated third individual. Young testified that with respect to the testing she
performed of the inside of the panties, the contributors were K.A. and Arteaga-Roman.

K.A. testified that her father touched her part, and she explained that she meant the front
part of her genitalia. When shown a diagram, she circled the female sexual organ. K.A.
recounted that she could feel Arteaga-Roman tickling her part that she circled on the
diagram with his mouth and mustache. K.A. testified that she kept her eyes closed and did
not see whether Arteaga-Roman was clothed. According to K.A., on the night of the offense,
she was wearing a nightgown and underwear, and Arteaga-Roman lifted her nightgown to
her belly button and pushed her underwear to the right with his hand. K.A. testified that
when Arteaga-Roman was tickling her part, he used a lighter so he could see her. K.A.
testified that she did not see the lighter, but she heard Arteaga-Roman trying to click it on.
K.A. agreed that when Arteaga-Roman was moving her underwear, his hand touched inside
the fatty outer part of her genitalia. According to K.A., when Arteaga-Roman moved her
underwear, he then put his lips on her part and tickled it with his mouth. K.A. testified that
she lowered her nightgown in an attempt to cover herself, "but he continued doing it."

K.A. stated that she heard her sister yelling at Arteaga-Roman and telling him to go back to
his room. K.A. identified Arteaga-Roman in court as the person who put his hand in her part
and his mouth on her part. K.A. testified that she went back to sleep after Arteaga-Roman
left. K.A. explained that she forgot to tell the interviewer some things.

D.B. testified that Arteaga-Roman awakened her by tickling her foot and told her that he
was taking care of her younger sister and brother so they would not have nightmares. D.B.
explained that she told him she would take care of them, and she attempted to put a large,
heavy bucket of clothes in front of the bedroom door to prevent him from reentering the
room. According to D.B., Arteaga-Roman put a rag with alcohol on it on her face, covered
her nose with the rag, and applied pressure, causing her to have trouble breathing. D.B.
testified that she tried to remove the rag and hit Arteaga-Roman.

According to D.B., her father eventually went outside to drink more, and he later asked D.B.
to come to the phone to speak to her mother. D.B. explained that she was afraid to tell her
mother what had happened, so she did not, and she returned to her room to sleep as her
mother had told her to do. D.B. testified that when she laid down, her father reentered the
bedroom without any clothes and laid down beside K.A. D.B. testified that she told her
father to leave, but he did not, and D.B. saw Arteaga-Roman on top of K.A. kissing her
"middle part." D.B. explained that by middle part, she meant the area used for peeing, and
she circled the female sexual organ on a diagram. According to D.B., Arteaga-Roman
moved her sister's underwear with his hand.

D.B. testified that she did not say anything when her father was doing this because she was
afraid, and when the prosecutor asked her why she was afraid, she testified "Because when
I was 3 years old, I don't remember what I did, but he hit me so hard." Defense counsel
objected to the testimony on the grounds that it was evidence of an extraneous offense and
moved for a mistrial, and the trial judge sustained the objection but denied the motion for
mistrial. The judge instructed the jury to disregard D.B.'s statement. D.B. testified that after
her father left the room, she called her mother and told her what happened. Defense
counsel again moved for a mistrial when D.B. responded in Spanish to questions regarding
her parents' divorce, and the trial judge again overruled the motion.

Arteaga-Roman testified that although he and V.B. were divorced, they agreed to live
together to allow the children to have both parents in their home, and Arteaga-Roman gave
financial assistance to V.B. According to Arteaga-Roman, on the date in question, V.B. left
for work in the early morning hours. Arteaga-Roman explained that he had consumed eight
beers that evening. Arteaga-Roman testified that he awakened at 2:00 or 3:00 a.m., went to
the bathroom, and disinfected himself using a rag with alcohol. According to Arteaga-
Roman, he then went into the children's bedroom to check on them. Arteaga-Roman
testified that he then fainted and fell on top of D.B., and the rag fell onto her face. According
to Arteaga-Roman, he fell onto K.A.'s legs and his head ended up on K.A.'s sexual organ.
Arteaga-Roman testified that D.B. woke up and told him to leave her sister alone.

Arteaga-Roman denied touching any part of K.A.'s body with sexual intent or having sexual
feelings toward K.A. In addition, Arteaga-Roman denied moving K.A.'s panties with his
hand. According to Arteaga-Roman, the "tickling that [K.A.] felt" occurred because he fell
onto her private part and he was "shaking." Arteaga-Roman testified that K.A. was lying
when she said that he pushed up her gown. Arteaga-Roman explained that although he
fainted, he knew everything that occurred while he was in the children's bedroom. Arteaga-
Roman denied intentionally putting a rag over D.B.'s nose. Arteaga-Roman admitted that he
did not mention dizziness in his statement to the detective.

ISSUES ONE, TWO, AND THREE


In issue one, Arteaga-Roman asserts that the evidence was legally insufficient to prove that
he committed the offense of aggravated sexual assault against K.A. by causing her sexual
organ to contract or penetrate his mouth. In issue two, Arteaga-Roman argues that the
evidence was legally insufficient to prove that he committed the offense of aggravated
assault of K.A. by causing the penetration of her sexual organ by inserting his hand. In
issue three, Arteaga-Roman contends the evidence was legally insufficient that he
committed the offense of injury to a child against D.B. We address these issues together.

When evaluating the legal sufficiency of the evidence, we review all the evidence in the light
most favorable to the verdict to determine whether any rational factfinder could have found
the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 902 n. 19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the ultimate
authority on the credibility of witnesses and the weight to be given to their
testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). A
reviewing court must give full deference to the jury's responsibility to fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we
must presume that the jury resolved such facts in favor of the verdict and defer to that
resolution. Brooks, 323 S.W.3d at 889 n. 13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). In addition, we determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when viewed
in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. The testimony of a
child victim, standing alone and without corroboration, is sufficient to support a conviction
for aggravated sexual assault of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a),
(b)(1) (West Supp. 2017) (providing that a child's testimony alone is sufficient to support a
conviction for aggravated assault when the child is under the age of seventeen at the time
of the alleged offense); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet.
ref'd).

Section 22.021 of the Penal Code provides that a person commits aggravated sexual
assault if he intentionally or knowingly causes the penetration of the sexual organ of a child
by any means or causes the child's sexual organ to contact or penetrate the person's
mouth. Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp. 2017). Section 22.04 of the
Penal Code provides that a person commits the offense of injury to a child if he intentionally
or knowingly causes bodily injury to a child. Id. § 22.04(a)(3) (West Supp. 2017). "Bodily
injury" is defined as "physical pain, illness, or any impairment of physical condition." Id. §
1.07(a)(8) (West Supp. 2017). Obstructing or impeding a person's normal breathing is a
bodily injury that impairs a person's physical condition. Marshall v. State, 479 S.W.3d 840,
844 (Tex. Crim. App. 2016).

K.A. testified that Arteaga-Roman touched her sexual organ with his mouth. In addition,
K.A. agreed that Arteaga-Roman's hand touched inside her sexual organ when he was
moving her underwear. D.B. testified that Arteaga-Roman put a rag over her nose and
applied pressure, which caused her to have trouble breathing. Viewing the evidence in the
light most favorable to the verdict and deferring to the jury's authority regarding the
credibility of witnesses and the weight to give their testimony, we conclude that a
reasonable factfinder could have found Arteaga-Roman guilty of injury to D.B. and two
counts of aggravated sexual assault of a child as to K.A. See Tex. Penal Code §§
22.021(a)(1)B, 22.04(a)(3); Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); see
also Marshall, 479 S.W.3d at 844; Brooks v. State, 323 S.W.3d at 902 n.19; Clayton, 235
S.W.3d at 778; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d at 343; Tear, 74 S.W.3d
at 560.The evidence is legally sufficient to support Arteaga-Roman's convictions.
Accordingly, we overrule issues one, two, and three.

ISSUE FOUR
In issue four, Arteaga-Roman argues that the trial court erred by denying his motion for
mistrial after D.B. testified regarding an extraneous offense. We review the denial of a
motion for mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003). Mistrial is only appropriate for errors that are highly
prejudicial and incurable. Id. Instructing the jury to disregard generally cures any error
associated with testimony referring to an extraneous offense. Kemp v. State, 846 S.W.2d
289, 308 (Tex. Crim. App. 1992); Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App.
1979). When, as here, a trial court instructs the jury to disregard certain testimony, we
generally presume that the jury followed the trial court's instructions. Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999). As discussed above, the trial judge sustained
defense counsel's objection and instructed the jury to disregard D.B.'s statement regarding
the extraneous offense. Therefore, we conclude that the trial court did not abuse its
discretion by denying the motion for mistrial. See Simpson, 119 S.W.3d at 272; Kemp, 846
S.W.2d at 308; Campos, 589 S.W.2d at 428. Accordingly, we overrule issue four.

ISSUE FIVE
In his fifth issue, Arteaga-Roman argues that his punishment was cruel and unusual and
"disproportionate to the nature of the violations." See U.S. Const. amends. VIII, XIV.
Generally, a sentence that is within the range of punishment established by the Legislature
will not be disturbed on appeal and is not unconstitutionally cruel and unusual. Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Kirk v. State, 949 S.W.2d 769, 772
(Tex. App.-Dallas 1997, pet. ref'd).

The record does not demonstrate that Arteaga-Roman presented his complaints to the trial
court. See Tex. R. App. P. 33.1(a). However, even if Arteaga-Roman had preserved his
complaints for appellate review, his sentences of thirty years of confinement for each of the
two counts of aggravated sexual assault of a child and four and a half years of confinement
for injury to a child are within the statutorily-authorized ranges of punishment for the
charged offenses. See Tex. Penal Code Ann. § 22.021(e) (West Supp. 2017) (aggravated
sexual assault of a child is a first-degree felony); Id. § 22.04(f) (West Supp. 2017) (injury to
a child is a third-degree felony); see also Tex. Penal Code Ann. § 12.32 (West 2011) (first-
degree felony punishment range is five to ninety-nine years of confinement and a fine of up
to $10,000); Id. § 12.34 (West 2011) (third-degree felony punishment range is two to ten
years of confinement and a fine not to exceed $10,000). In addition, the record contains no
evidence "reflecting sentences imposed for similar offenses on criminals in Texas or other
jurisdictions by which to make a comparison." Jackson v. State, 989 S.W.2d 842, 846 (Tex.
App.-Texarkana 1999, no pet.). The absence of such evidence renders this Court unable to
perform a proportionality analysis. See generally Solem v. Helm, 463 U.S. 277, 292
(1983); Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.-Texarkana 1995, pet. ref'd). For
all of these reasons, we overrule issue five. Having overruled each of Arteaga-Roman's
issues, we affirm the trial court's judgments.

AFFIRMED.
STATE OF LOUISIANA,
v.
TREVOR CLIFTON.
No. 17-KA-538.

Court of Appeal of Louisiana, Fifth Circuit.

May 23, 2018.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,


PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 15-5805, DIVISION "G",
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED;


MATTER REMANDED.

Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss,


Joshua K. Vanderhooft, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF
LOUISIANA.

Lieu T. Vo Clark, COUNSEL FOR DEFENDANT/APPELLANT, TREVOR CLIFTON.

In Proper Person, DEFENDANT/APPELLANT, TREVOR CLIFTON.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc
E. Johnson.

FHW JGG MEJ

FREDERICKA HOMBERG WICKER, Judge.

Defendant, Trevor Clifton, appeals his convictions for sexual battery of a juvenile in
violation of La. R.S. 14:43.1 and his subsequent adjudication and sentence as a
multiple offender. For the following reasons, we affirm defendant's convictions but
vacate his enhanced sentence as a multiple offender under La. R.S. 15:529.1, and
remand this matter to the trial court for resentencing.

STATEMENT OF THE CASE


On February 4, 2016, the Jefferson Parish District Attorney filed a bill of information
charging defendant, Trevor Clifton, with one count of sexual battery of a juvenile
under the age of thirteen, in violation of La. R.S. 14:43.1 (count one), and one count
of sexual battery of a juvenile under the age of fifteen, in violation of La. R.S. 14:43.1
(count two). Defendant pled not guilty at his arraignment.

The matter proceeded to trial and, on January 26, 2017, a twelve-person jury found
defendant guilty as charged. On February 9, 2017, the trial court sentenced
defendant to sixty years imprisonment at hard labor, with the first twenty-five years
of the sentence to be served without benefit of parole, probation, or suspension of
sentence on count one and ten years imprisonment at hard labor to be served
without benefit of parole, probation, or suspension of sentence on count two. The
trial court ordered defendant's sentences to be served concurrently, recommended
defendant for participation in any self-help programs available to him, and ordered
that, upon completion of his term of imprisonment, defendant be monitored by the
Department of Public Safety and Corrections through the use of electronic
monitoring equipment for the remainder of his natural life. The trial court further
ordered that defendant register as a sex offender pursuant to La. R.S. 15:543.1 and
provided defendant with a written copy of the sex offender notification requirements.
On February 23, 2017, defendant filed a motion to reconsider sentence.

The State filed a multiple offender bill of information on count one, alleging
defendant to be a second felony offender, to which defendant pled not guilty. On
April 13, 2017, the trial court conducted a hearing and adjudicated defendant a
second felony offender. The trial court vacated defendant's sentence on count one
and resentenced him, pursuant to La. R.S. 15:529.1, to sixty years imprisonment at
hard labor to be served without benefit of probation or suspension of
sentence.[1] After imposition of his enhanced sentence, defendant orally "converted"
his previously filed motion to reconsider sentence to argue that the imposition of his
sixty-year enhanced sentence was excessive. The trial court denied defendant's
motion to reconsider. This timely appeal follows.

FACTUAL BACKGROUND
The victim, C.C.,[2] testified that in the early morning hours of October 2, 2015, she
was in her bedroom getting ready for school. Upon exiting her room, C.C.'s "step-
father,"[3] defendant, was standing in the hallway waiting for her. C.C. recalled that
defendant instructed her to come over to him and to pull down her pants. He then
ordered her to get down on the ground on all fours at which time he got down on his
knees, pulled down his pants, and put his penis inside her vagina. C.C. testified that
her mother, D.C., came out of her bedroom, saw defendant with her, and began
hitting him. C.C. recalled that defendant promised her mother that he would go to
church with her if she agreed not to call the police and that he then attempted to
hide the phone before grabbing a knife and fleeing the house.

C.C. testified at trial that her encounter with defendant on October 2, 2015, was not
the first instance of sexual abuse committed by defendant. She recalled other
occasions, when her mother was not at home, in which defendant would retrieve her
from her bedroom and instruct her to go out into the hallway, pull down her pants,
and "get on all fours" on the floor. She testified that he would then pull down his
pants and put his penis in her "booty between [her] legs." She further testified that at
night, while her mother was asleep, she would lock her bedroom door and barricade
it with toys but that defendant would find a way in and would tell her to do "the same
thing" in the hallway. She recalled that when he would "finish" he would "clean up"
with a white towel.[4]

C.C. also told the jury that there were instances "a long time ago" when defendant
would pick her up from Bible study and take her to an isolated location where he
would instruct her to pull down her pants at which time he would get in front of her
and "lay" his penis "in front of — in between [her] legs and he would, like, do
it."[5]C.C. recalled an earlier incident when she and defendant were at home and he
touched her legs, which she stated made her feel "scared, nervous, and disgusting."
There were also times, according to C.C., when defendant would instruct her to
perform oral sex on him and request that she "make noises." C.C. stated that
although she would not make the "noises" requested of her, defendant would moan
during the sexual acts. C.C. testified defendant instructed her not to tell her mother
and that she was "scared and nervous" to tell her mother or anyone else.

Anne Troy, an expert family nurse practitioner with Children's Hospital specializing in
forensic nursing, including child sexual abuse and delayed disclosure, testified at
trial. Nurse Troy explained for the jury that delayed disclosures in sexual abuse
cases involving children are very common due to the often close relationship
between the victim and the perpetrator. She further explained it was common in
sexual abuse cases for children to present with "normal bodies" upon examination.
Nurse Troy testified that a sexual abuse victim may disclose information gradually as
the child begins to feel more supported and that the details of the victim's reports
can vary depending on who the victim is speaking to and the victim's level of
comfort. Nurse Troy further explained that it is not unusual for a child to acquiesce to
the sexual abuse because of his or her love for the abuser and/or shock or fear at
the time of the abuse.

Nurse Troy testified that she conducted a forensic examination on C.C., who was
fourteen years old at the time of the examination on October 2, 2015. C.C.'s
explanation of the events to Nurse Troy corroborated C.C.'s trial testimony. During
her evaluation, C.C. told Nurse Troy that her "stepdaddy" put his "private part in me."
She explained she was getting ready for school on October 2, 2015, when
defendant knocked on her bedroom door. C.C. told him "no leave me alone," but
defendant waited in the hallway and proceeded to warn her that if she did not come
with him he was going to hurt her. C.C. followed defendant's command, pulled down
her pants, and got down on her knees. She told Nurse Troy that defendant then
pulled down his pants and put "his private part" in her "private part." C.C. further told
Nurse Troy that D.C. walked into the bathroom, saw what was going on, and began
crying and hitting defendant. She recalled that D.C. told defendant she was going to
call the police, and that defendant told D.C. he was not going to "do it again" and
would start going to church.

During the interview with Nurse Troy, C.C. initially denied any prior sexual abuse,
stating that she did not want to "get in trouble" with her mom. After Nurse Troy
assured C.C. that she would not be in trouble, C.C. then relayed other occasions of
sexual abuse to Nurse Troy. C.C. told Nurse Troy that, on other occasions,
defendant would come into her bedroom while she was sleeping, wake her up, and
tell her "you better come or I'm going to hurt you." Defendant would then instruct her
to go into the hallway where he would "put his private part inside" of her. [6]C.C.
recalled that her stomach hurt when he did "those things" to her and that she also
feared that she would become pregnant.[7]

C.C. told Nurse Troy that the first time defendant did "something" to her was when
she was "nine or thirteen." She explained she was too scared to tell her mother
because defendant threatened to hurt her if she did and that often times he was
drunk when he came into her bedroom. She stated that when her mother would
leave the house, she would ask if she could go to her grandmother's house so that
she did not have to be at home alone with defendant.

During Nurse Troy's examination, a rape kit was collected with no abnormal findings
present. Testing for various sexually transmitted diseases was also performed which
resulted in negative findings.[8] Nurse Troy testified that normal physical
examinations are common in sex abuse cases. Nurse Troy concluded that, in her
expert opinion, C.C. was subjected to sexual abuse and that there were no
indications of fabrication or coaching with respect to the reported abuse.

Brittney Bergeron, a forensic interviewer for the Children's Advocacy Center ("CAC")
in Jefferson Parish, testified that she conducted a forensic interview with C.C. on
October 5, 2015. Concerning the October 2, 2015 abuse, C.C. further recalled—as
she testified to at trial—that, after her mother discovered her and defendant having
sex, defendant grabbed a knife and threatened to kill himself if D.C. contacted
police.

C.C. reported other instances of abuse to Mrs. Bergeron. C.C. told Mrs. Bergeron
that defendant would pick her up from Bible study and take her "somewhere else"
with her responding to defendant that she did not "want to do that." C.C. further
stated that on one occasion defendant told her to rub his "private part" and when
she said no, he grabbed her hand and "made" her "do it" by placing her hand on his
"private part." C.C. recalled on another occasion, when she was thirteen, where
defendant came into her room and told her to lie down at which time he "put his
private part" inside her "in front." C.C. stated that, in an effort to prevent defendant
from entering her bedroom during the night, she would take her sister's toys and put
them in front of her bedroom door.
C.C.'s mother, D.C., testified that she adopted C.C. shortly after she was born on
November 25, 2000, and that defendant—her ex-boyfriend and father to her
youngest biological child—was born on March 20, 1979. She testified that defendant
began living with her in 2005 and that they moved into a new house together in
Gretna in 2008, when C.C. was eight years old. D.C. testified that she ended her
relationship with defendant in April of 2015 when she discovered that she had
contracted a sexually transmitted disease which she believed she had contracted
from defendant. However, she permitted defendant to continue living with her until
he could make other living arrangements but mandated that he sleep on the couch.

D.C. recalled that on October 2, 2015, she woke up at 6:21 a.m. to discover a quiet
house, which she found to be strange since her daughter was supposed to be up
and getting ready for school. When D.C. walked down the hallway in search of C.C.,
she found C.C. and defendant "doing things." D.C. testified that when defendant saw
her, he jumped up and turned away to "fix" himself. D.C. asked C.C. why she did not
tell her "what was going on" with defendant to which C.C. replied, "Mama, I was
scared." D.C. testified that she and defendant began fighting and that she instructed
C.C. to call the police. While C.C. called the police, defendant knocked the phone
from C.C.'s hand. Defendant begged D.C. not to report him to the police because
"he can't go to jail" and told her, as he ran to the kitchen to retrieve a knife, that he
would rather kill himself than go to jail.[9] D.C. testified that, as police arrived,
defendant fled out the back door.

D.C. also recalled that she noticed changes in her daughter at the age of nine or ten
years, at which time C.C.'s grades in school began to decline and she would forget
certain things she had learned at a young age, such as how to tie her shoes. Upon
noticing these changes, D.C. sought help for her daughter with her pediatrician who
referred C.C. for psychological evaluation. In 2011, when C.C. was eleven years old,
she was seen at the Jefferson Parish Human Services Authority and was diagnosed
with signs of depression, depressed mood, diminished interest in pleasure,
insomnia, fatigue, loss of energy, and diminished ability to concentrate. [10]

D.C. further testified that, around that same time, she noticed defendant began
acting "mean" towards C.C. and observed that C.C. avoided being around defendant
by locking herself in her bedroom and barricading her door at night. D.C. testified
that she eventually sat down with both C.C. and defendant to figure out a solution to
the obvious hostility they displayed towards one another. D.C. testified that, at that
time, she attributed the hostility in C.C.'s and defendant's relationship to the recent
birth of C.C.'s younger sibling—D.C.'s and defendant's biological child.

D.C. told the jury that her daughter struggles with making friends and does not care
to leave the house. She further testified that C.C., even though sixteen years old at
the time of trial, follows D.C. around everywhere and at times urinates on herself.[11]
Detective Joseph Hebert and Deputy Maya Seymour of the Jefferson Parish
Sheriff's Office testified that on October 2, 2015, they responded to a "disturbance"
call from the victim's home in Westwego. Deputy Seymour spoke to fourteen-year-
old C.C., who was crying as she explained the details of what had just occurred with
defendant. Detective Hebert observed that the back door of the residence was open,
and defendant could not be located. Based on her discussion with C.C., Deputy
Seymour placed an aggravated rape dispatch call, to which supervising officers
responded, and a warrant for defendant's arrest was obtained.

Upon discovering that defendant had fled the scene, Detective Donald Zanotelli with
the Jefferson Parish Sherriff's Office—pursuant to an exigent circumstances request
which described defendant as an aggravated rape suspect who was "suicidal,
homicidal and was armed with a knife"—tracked defendant's cellular phone. A
tracking of defendant's cellular devices reflected that defendant frequently contacted
a cell phone registered to Trenelle Jourdan.[12] Officers arrived at Ms. Jourdan's
location, where defendant was found hiding behind a refrigerator and eventually
apprehended.

Ms. Jourdan confirmed that defendant called her immediately after the October 2,
2015 incident and that she picked him up near the scene of the crime. She testified
that defendant appeared suicidal and told her of his intent to take his own life and
"slit his wrist" with a knife. Defendant told Ms. Jourdan that he was "in trouble" and
that he "did something, he drank too much."[13]

Dr. Marcella Zozaya, an expert in the field of forensic DNA analysis and comparison,
testified that she analyzed the specimens in the rape kit performed on C.C. at
Children's Hospital and found them to be negative for seminal fluid and
spermatozoa, but noted the presence of epithelial (skin) cells on certain swabs taken
during C.C.'s examination. Dr. Zozaya testified that the perineal swab and vaginal
swab did not contain a detectable level of Y chromosome (male) DNA. However,
with respect to the labia majora swab and the external genitalia swab, Dr. Zozaya
found a detectable level of Y chromosome (male) DNA. Dr. Zozaya explained that
while there was Y chromosome (male) skin cell DNA detected on the labia majora
and external genitalia swabs, there was insufficient Y chromosome DNA to process
a valid profile for identification comparison. Dr. Zozaya opined that it was "highly
likely" that skin friction caused the shedding of the male epithelial (skin) cells that
were found on C.C.'s labia majora and external genitalia.

DISCUSSION
On appeal, defendant's appointed appellate counsel has filed a brief, challenging the
excessiveness of defendant's sixty-year enhanced sentence as a multiple offender
pursuant to La. R.S. 15:529.1. Defendant has also filed a pro se appellate brief,
raising three separate assignments of error. Because we must vacate defendant's
sixty-year enhanced sentence under La. R.S. 15:529.1 due to an error patent, as
discussed below, we pretermit discussion of counsel's assigned error and address
defendant's pro se assignments of error in turn.

Pro Se Assignment of Error No. 1


In his first pro se assignment of error, defendant contends his sexual battery upon a
juvenile convictions are illegal because he was never arrested for, arraigned, or pled
to the charged offenses. Defendant contends that he was arrested on charges of
first degree rape and molestation of a juvenile—offenses for which he was never
charged—but was subsequently convicted of sexual battery upon a juvenile in
violation of La. R.S. 14:43.1, which he asserts is in violation of his due process
rights.

Defendant accurately asserts that he was arrested, pursuant to an arrest warrant, on


charges of first degree rape, in violation of La. R.S. 14:42, and molestation of a
juvenile, in violation of La. R.S. 14:81.2, on or about October 2, 2015. [14] After his
arrest, on November 6, 2015, a Jefferson Parish Commissioner found probable
cause to hold defendant on charges of first degree rape and molestation of a
juvenile.

On February 4, 2016, the Jefferson Parish District Attorney filed a bill of information
charging defendant with one count of sexual battery of a juvenile under the age of
thirteen, in violation of La. R.S. 14:43.1, and one count of sexual battery of a juvenile
under the age of fifteen, in violation of La. R.S. 14:43.1. Defendant was present for
his arraignment and pled not guilty at his arraignment to those charges on February
5, 2016.

While it is accurate that the district attorney charged defendant with crimes different
than those for which he was arrested, the language of La. C.Cr.P. art. 61[15] gives
the district attorney broad discretion in determining whom, when, and how to
prosecute. Additionally, under La. R.S. 14:4[16], when the offender's alleged conduct
violates more than one criminal statute, the prosecution may proceed under any
applicable statute at the discretion of the district attorney. State v. Smith,99-0606
c/w 99-2015 (La. 7/6/00), 766 So.2d 501, 514. Thus, the district attorney in the
instant case had the discretion to prosecute defendant for two counts of La. R.S.
14:43.1, where defendant's conduct was criminal under either La. 14:43.1 or the
criminal statutes under which he was arrested—La. R.S. 14:42 and 14:81.2.21.[17] "It
is thereafter left to the trier of fact to determine if the State met its burden of proving
the elements of the charged offense." State v. Fisher, 12-412 (La. App. 5 Cir.
11/27/12), 105 So.3d 964, 969. Accordingly, we find that the district attorney was
within his discretion in prosecuting defendant under La. R.S. 14:43.1.[18] This
assignment has no merit.
Pro Se Assignment of Error Number 2
In his second pro se assignment of error, defendant claims that the trial court erred
in denying his "Motion to Enjoin Victim's Family From Showing Emotion in the
Courtroom While Sitting as Spectators," which the trial judge denied on September
19, 2016. Defendant maintains that any emotion shown by the victim's family during
trial could have influenced the jury verdict and denied him his right to a fair trial.

The record reflects that, in denying defendant's motion, the trial court notified the
parties as follows:

The Court is going to deny said Motion, but for the record, I will let Counsel know
and client know that it's normal for me to actually inform anyone who's a part of the
family on either side that if they cannot control their emotions to please step outside.
But I can't say what a person is going to Do, [sic] but I will instruct them that if they
can't conduct themselves accordingly, to please step outside during the trial or when
it gets to the point where we're talking about reading the verdict for them, so they will
not be disruptive in any way.

Therefore, although the trial judge denied defendant's motion, he did warn counsel
that all family members should refrain from emotion and that, if the need arose, he
would remove any family member who could not control his/her emotions in the
courtroom. Nevertheless, there is no indication in the record that any such
admonishment or removal of any family members was necessary during the trial.
Therefore, because the actions that were the subject of defendant's motion did not
come to fruition, we find that defendant has failed to show that he was prejudiced or
denied his right to a fair trial by the denial of this motion. This assignment has no
merit.

Pro Se Assignment of Error Number Three


In his third pro se assignment of error, defendant claims generally that his
constitutional right to a fair trial was denied when the trial court allowed witnesses
Nurse Troy and Nancy Weber to testify as to "evidence of hearsay to verify the
complaint." Defendant does not point to any specific statements made by Nurse
Troy or Nancy Weber at trial that he alleges constitute hearsay. Rather, he makes a
general allegation that the trial court erred in allowing the hearsay testimony of
Nurse Troy and Nancy Weber. Upon review of defendant's pro se brief, we find that
defendant has failed to state with specificity which statements he alleges are
hearsay that the trial court impermissibly allowed at trial. Accordingly, defendant has
failed to adequately brief the alleged error and the lack of specificity precludes
appellate review of this assignment of error.[19] See State v. Crosby, 98-0372 (La.
App. 4 Cir. 11/17/99), 748 So.2d 502, 509, writ denied, 99-3463 (La. 1/28/00), 753
So.2d 833; see also Uniform Rules of Court — Courts of Appeal, Rule 2-12.4.
In his third pro se assignment of error, defendant further appears to challenge the
sufficiency of the evidence presented against him. Defendant first contends that the
evidence presented against him was insufficient because "the only evidence was the
testimony of the victim and her adopted mother." Second, defendant argues that the
fact that C.C. did not test positive for any sexually transmitted diseases creates
reasonable doubt that defendant committed the crime, pointing to D.C.'s testimony
during which she stated that she believed she contracted a sexually transmitted
disease from defendant.

The standard of review for the sufficiency of the evidence to uphold a conviction is
whether, viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could conclude that the state proved the essential elements of
the crime beyond a reasonable doubt. State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12),
107 So.3d 49, 58, writ denied, 12-2229 (La. 4/1/13), 110 So.3d 574(citing Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554
(La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied,07-0371 (La. 5/4/07), 956
So.2d 600). This directive that the evidence be viewed in the light most favorable to
the prosecution requires the reviewing court to defer to the actual trier of fact's
rational credibility calls, evidence weighing, and inference drawing. 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.

An appellate court's primary function is not to redetermine the defendant's guilt or


innocence in accordance with its appreciation of the facts and credibility of the
witnesses. Rather, our function is to review the evidence in the light most favorable
to the prosecution and determine whether there is sufficient evidence to support the
jury's conclusion. Bone, supra; State v. Banford, 94-883 (La. App. 5 Cir. 3/15/95),
653 So.2d 671.

Evidence may be direct or circumstantial. Circumstantial evidence consists of proof


of collateral facts and circumstances from which the existence of the main fact can
be inferred according to reason and common experience. State v. Williams, 05-59
(La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and
circumstantial, must be sufficient to support the conclusion that the defendant is
guilty beyond a reasonable doubt. Bone, supra; State v. Wooten, 99-181 (La. App. 5
Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208.

Defendant was convicted of two counts of sexual battery of a juvenile (one count
having occurred when the victim was under the age of thirteen years, and one count
when the victim was under fifteen years of age). Sexual battery is defined in
pertinent part as "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 the victim has not yet attained fifteen years of age and is at least
three years younger than the offender.[20] Further, 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.

The credibility of a witness, including the victim, is within the sound discretion of the
trier of fact, who may accept or reject, in whole or in part, the testimony of any
witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227,
1233,writ denied, 15-1771, 2016 La. LEXIS 1955 (La. 9/23/16). 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. Hernandez, 14-863 (La. App. 5 Cir. 9/23/15), 177 So.3d 342,
351, writ denied, 15-2111 (La. 12/5/16), 210 So.3d 810. 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.

Upon review of the record, we find that the evidence presented at trial established
each element of the two offenses of sexual battery for which defendant was
convicted. At trial, C.C. testified as to acts committed by defendant that constitute
sexual battery occurring at various times beginning when C.C. was nine years old
and concluding at the age of fourteen. She testified regarding several instances
when defendant had sexual intercourse with her, when she performed oral sex on
defendant at his instruction, and when defendant forced her to touch his penis with
her hand, all of which constitute sexual battery. See State v. Perkins, 11-162 (La.
App. 5 Cir. 12/28/11), 83 So.3d 250, 257; State v. Bienvenu, 14-541 (La. App. 5 Cir.
12/16/14), 167 So.3d 63, writ denied, 15-0098 (La. 11/20/15), 180 So.3d 314;
and State v. Anderson, 10-779 (La. App. 5 Cir. 3/27/12), 91 So.3d 1080.

The eyewitness testimony of D.C.—who testified that she walked in on defendant


and her daughter having sexual contact on October 2, 2015— corroborated C.C.'s
trial testimony. Further, the recorded interviews with Nurse Troy and Mrs. Bergeron
corroborated C.C.'s testimony concerning both the October 2, 2015 incident as well
as earlier incidents of abuse. Additionally, the State produced evidence to show that,
on the date of the alleged October 2, 2015 sexual abuse, the DNA swabbing of
C.C.'s vaginal area reflected male DNA skin cells on the outside and inside of her
vagina. We find the evidence presented at trial against defendant to be sufficient to
support his convictions for sexual battery in violation of La. R.S. 14:43.1.

Moreover, defendant's hypothesis of innocence that C.C. would have necessarily


tested positive for an STD if she had sexual contact with defendant is not supported
in the record. First, other than D.C.'s speculative testimony that she "believed" she
contracted an STD from defendant, no evidence was presented to establish that
defendant in fact had an STD or that he transmitted an STD to D.C. Further, Nurse
Troy testified that C.C. was tested for various STDs, but was not tested for all STDs
and was never tested for Trichomonas Vaginalis, the only specific STD referenced
at trial.[21] Moreover, defendant's hypothesis of innocence was presented by the
defense in closing arguments and rationally rejected by the jury. This assignment
lacks merit.

ERRORS PATENT
We have reviewed the record for errors patent in accordance with La. C.Cr.P. art.
920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d
175 (La. App. 5 Cir. 1990). The record reflects the following errors patent.

First, defendant received an illegally lenient multiple offender sentence on count


one. The transcript reflects that when the trial judge resentenced defendant on count
one—sexual battery of a juvenile under the age of thirteen—he imposed a sixty-year
sentence without the benefit of probation or suspension of sentence. The multiple
offender statute, La. R.S. 15:529.1(G), provides that any sentence imposed under its
provisions "shall be at hard labor without benefit of probation or suspension of
sentence." Thus, the multiple offender statute does not impose a parole restriction.
Nevertheless, the restrictions on parole eligibility imposed on habitual offender
sentences under La. R.S. 15:529.1 "are those called for in the reference
statute." State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79
n.24, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983. In this case, the
underlying offense in the reference statute, La. R.S. 14:43.1, imposes a parole
restriction. La. R.S. 14:43.1(C)(2) requires that "at least twenty-five years of the
sentence imposed shall be served without benefit of parole, probation, or
suspension of sentence." Therefore, we find that the trial court erred by not
restricting parole eligibility on defendant's enhanced sentence for at least twenty-five
years.

Because the trial judge did not mandate the length of time that defendant must serve
without benefit of parole, and because the language of the sentencing statute
requires an exercise of the trial court's discretion in determining the exact length of
time that benefits are to be restricted, we vacate defendant's enhanced sentence on
count one and remand this matter for resentencing in accordance with the
underlying statute. See State v. Wilt, 14-823 (La. App. 5 Cir. 4/29/15), 170 So.3d
317, 327, writ denied, 15-1055 (La. 5/2/16), 206 So.3d 877; State v. Smith,09-100
(La. App. 5 Cir. 8/25/09), 20 So.3d 501, 508-09, writ denied, 09-2102 (La. 4/5/10),
31 So.3d 357.

Second, there are several discrepancies between the transcript and the original
Louisiana Uniform Commitment Order (UCO). Generally, when the transcript and
commitment are inconsistent, the transcript prevails. State v. Lynch, 441 So.2d 732,
734 (La. 1983). The UCO indicates that the offense date was November 25, 2009;
however, the record reflects that the offenses occurred on multiple dates: count one
— on or between November 25, 2009 and November 24, 2013; and count two — on
or between November 25, 2013 and October 2, 2015. Additionally, the UCO reflects
that defendant was given "60 Year(s) without benefit of parole, probation, or
suspension of sentence." However, during sentencing, the trial court imposed only
twenty-five years of the sixty-year sentence to be served without benefit of parole,
probation, or suspension of sentence on count one. Thus, the UCO should reflect
that twenty-five years, and not sixty years, of defendant's original sixty-year
sentence be served without benefit of parole, probation, or suspension of sentence.

Accordingly, we remand this matter to the trial court for correction of the UCO and
direct the Clerk of Court for the 24th Judicial District Court to transmit the original of
the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art.
892(B)(2) and the Department of Corrections' legal department. See State v.
Long, 12-184, pp. 10-11 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La.
C.Cr.P. art. 892(B)(2)).

In this case, the State introduced sufficient proof through competent evidence that
defendant was the individual who pled guilty to possession of cocaine, in violation of
La. R.S. 40:967(C), in case number 99-6591 of the 24th Judicial District Court on
December 2, 1999. The State offered proof of defendant's identity through a certified
conviction packet, waiver of rights form, a fingerprint card associated with the prior
conviction, and the testimony of fingerprint expert witness Joel O'Lear at the multiple
bill hearing. Thus, we find that the trial court's failure to advise defendant of his
multiple offender rights is not a reversible error requiring corrective action.

DECREE
Accordingly, for the reasons provided herein, defendant's convictions are affirmed.
Defendant's multiple offender sentence on count one is vacated and this matter is
remanded for resentencing and for further corrective actions consistent with this
opinion.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED;


MATTER REMANDED.

[1] During sentencing on defendant's multiple bill, the trial court again recommended defendant for
participation in any self-help programs available to him, advised him of his sex offender registration
obligations previously provided to him in writing at original sentencing on February 9, 2017, and ordered
that upon completion of his term of imprisonment, defendant be monitored by the Department of Public
Safety and Corrections through the use of electronic monitoring equipment.

[2] In accordance with La. R.S. 46:1844(W)(3), the victim, who is a minor, and the victim's family
members will be referred to by their initials to protect the victim's identity. C.C. was sixteen years old at
the time of trial and testified that she was born on November 25, 2000.

[3] While C.C. referred to defendant as her "step-father," having known him for nearly her entire life, the
testimony at trial appears to establish that defendant and C.C.'s mother—D.C.—were never married.
[4] D.C., C.C.'s mother, confirmed in testimony that, during her intimate relationship with defendant, he
would often ejaculate into a white towel.

[5] C.C. testified that she went to Bible study "a long time ago." D.C. testified that C.C. began going to
Bible study in 2009 when C.C. was approximately eight or nine years old. Also, on cross-examination,
C.C. testified that she was nine years old the first time the sexual abuse began.

[6] C.C. also told Nurse Troy that, on one occasion, defendant made her put her mouth on his "private
part."

[7] Nurse Troy confirmed that it is common for a child to have somatic complaints, such as stomach pain,
to express their pain.

[8] Nurse Troy noted that a test for Trichomonas Vaginalis was not performed on C.C., but that C.C. was
nonetheless treated for it, per standard of care guidelines.

[9] The 9-1-1 recording was played for the jury during the testimony of Jefferson Parish Sheriff's Office
custodian of records, Nancy Webber. On the recording, a man is heard stating "I didn't do that" before the
phone is disconnected. The 9-1-1 operator is then heard calling back and a man's voice is heard stating,
"I can't go to jail" before it is again disconnected. A third attempt is made by the 9-1-1 operator to reach
the person who placed the call, at which time a man states "don't answer the phone" before it is
disconnected for the last time.

[10] Nurse Troy confirmed that it is common for victims who have a history of sexual abuse to exhibit
certain symptoms such as poor school performance, depression, diminished interest in pleasures or
activities, insomnia, and fatigue.

[11] Nurse Troy testified at trial that day and night time bedwetting has been correlated with sexual abuse
in children.

[12] Having been unable to locate defendant at any of the addresses associated with his cell phone, it
was soon discovered from defendant's cell phone provider that defendant had disconnected his phone
that day and changed his cell phone number. A trace of defendant's new cell phone number revealed that
defendant had contacted Ms. Jourdan numerous times on that date. Detective Zanotelli learned that Ms.
Jourdan had a Mustang model vehicle registered in her name so he placed her license plate number in
the Automatic License Plate Recognition System in an attempt to determine her vehicle's location.

[13] Detective Kay Horne of the Jefferson Parish Sheriff's Office testified that she spoke to Trameka
Clifton— defendant's sister—while attempting to locate defendant. Detective Horne testified that Ms.
Clifton reported to her that defendant told Ms. Clifton that, on the date of the incident in question, he was
asleep in the hallway and woke up to discover C.C. performing oral sex on him, and that it was "just a big
misunderstanding." At trial, Ms. Clifton denied making that statement to police.

[14] On October 7, 2015, defendant was brought before a Jefferson Parish Commissioner on a motion to
set bond. The Commissioner set his bond on the first degree rape at $750,000, and on the molestation of
a juvenile at $50,000.

[15] La. C.Cr.P. art. 61 provides:

Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire
charge and control of every criminal prosecution instituted or pending in his district, and determines
whom, when, and how he shall prosecute.
[16] La. R.S. 14:4 provides:

Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an
offender's conduct is:

(1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes
and also according to a special article of this Code or Section of this Chapter of the Revised Statutes;

or

(2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and
also according to some other provision of the Revised Statutes, some special statute, or some
constitutional provision.

[17] In State v. Juluke, 374 So.2d 1259 (La. 1979), a case in which the defendant was charged with
forgery, a felony, in violation of La. R.S. 14:72, the defendant filed a motion to quash on the basis that he
should have been charged with unauthorized use of a credit card (La. R.S.14:67.3), a misdemeanor. The
trial court granted the motion. On appeal, the Louisiana Supreme Court stated that the defendant's
conduct would be criminal under either La. R.S. 14:72 or La. R.S. 14:67.3. The Court found that although
the State might have chosen to prosecute the defendant under La. R.S. 14:67.3, it was within the
discretion provided to the district attorney under La. R.S. 14:4 to charge her under the general forgery
statute. As such, the Louisiana Supreme Court reversed the ruling of the trial court and remanded for
further proceedings.

[18] Defendant does not allege that he did not have knowledge or notice of the charges against him.

[19] The record reflects that, prior to trial, defendant's counsel filed two motions in limine, which the trial
court denied on September 19, 2016. In his motions, defendant sought an order barring the State from
introducing, through the testimony of any witness, out-of-court statements that were elicited during any
forensic interview. Defendant argued that any statement made by C.C. to anyone constituted inadmissible
hearsay in violation of his right to confrontation. On appeal, defendant does not assign the trial court's
denial of these motions as error but rather makes a conclusory allegation that Nurse Troy and Nancy
Weber's testimony was based on hearsay and should have been excluded. Nevertheless, as to any
alleged hearsay statements made in the audio recorded medical history of the victim as testified to by
expert family nurse practitioner Anne Troy—taken at the hospital on the same day of the last incident of
alleged sexual abuse and in conjunction with the victim's physical examination, which included vaginal
DNA swabbing— those statements are admissible under La. C.E. art. 803(4) as a "statement for
purposes of medical treatment and medical diagnosis." See State v. Koederitz, 14-1526 (La. 3/17/15),
166 So.3d 981. Moreover, disclosures made by C.C. to her mother when D.C. discovered defendant
having sexual contact with C.C., and disclosures of prior abuse C.C. made to Nurse Troy during her
interview, were both initial reports of different instances of sexual abuse. A statement is not hearsay if the
declarant testifies at trial subject to cross-examination and the statement is consistent with the declarant's
testimony and is one of an initial complaint of sexually assaultive behavior. La. C.E. art.
801(D)(1)(d); See State v. Burks, 04-1435 (La. App. 5 Cir. 5/31/05), 905 So.2d 394, 402, writ denied, 05-
1696 (La. 2/3/06), 922 So.2d 1176. Further, as to 9-1-1 records custodian Nancy Webber, the record
reflects that C.C. did not make any statements to Ms. Weber and is also not heard on the 9-1-1 recording
played for the jury.

[20] The bill of information alleged that the count of sexual battery upon a victim under the age of thirteen
years occurred on or between November 25, 2009 and November 24, 2013, and that the count of sexual
battery of a juvenile under fifteen years of age occurred on or between November 25, 2013 and October
2, 2015. The bracketed language, "directly or through clothing," was added to the definition of sexual
battery by Acts 2015, No. 256 § 1, effective August 1, 2015. The amendment of the definition language
does not affect a sufficiency of the evidence analysis in this case.
[21] The record reflects that when the State questioned Nurse Troy whether "it is possible for a person to
have intercourse with one person and infect them with an STD and have sex with another person and not
transmit that STD," defense counsel objected to the line of questioning on the grounds that Nurse Troy
was not an expert in the transmission of STDs. The trial court sustained the objection.
2018-Ohio-1992

STATE OF OHIO, Plaintiff-Appellee,


v.
GREGORY WILLIAMS, Defendant-Appellant.
No. 2017 CA 00078.

Court of Appeals of Ohio, Fifth District, Stark County.

May 21, 2018.

Criminal Appeal from the Court of Common Pleas, Case No. 2017 CR 00066.

Affirmed.

JOHN D. FERRERO, PROSECUTING ATTORNEY, KATHLEEN O. TATARSKY,


ASSISTANT PROSECUTOR, 110 Central Plaza South, Suite 510, Canton, Ohio
44702, for Plaintiff-Appellee.

MARY G. WARLOP, ABNEY LAW OFFICE, LLC, 116 Cleveland Avenue, Suite 500,
Canton, Ohio 44702, for Defendant-Appellant.

John W. Wise, P. J., W. Scott Gwin, J. and Craig R. Baldwin, J., Judges.

OPINION
WISE, P. J.

{¶ 1} Defendant-Appellant Gregory D. Williams appeals his conviction for rape in the


Court of Common Pleas, Stark County. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.

{¶ 2} On October 19, 2016, the twelve-year-old female victim in this case


(hereinafter "child victim") was living with her mother and her siblings in a house just
outside the city limits of Canton. Appellant is her father, who apparently lived
periodically in the house. That evening the child victim went to bed, wearing a shirt
and a pair of pajama shorts. She was a heavy sleeper and kept the door closed on
this occasion.

{¶ 3} Later that night, the child victim's older brother let appellant inside the house
after he was awakened by knocking at one of the exterior doors. The older brother
then went back to bed.
{¶ 4} At some point after midnight on October 20, 2016, the child victim woke up
after hearing her mother, T.J., yelling at appellant. The girl realized her pajama
shorts were on the floor, but she had no memory of anything unusual occurring prior
to her waking up, although she later reported that her stomach hurt. Her parents
continued arguing, and eventually her grandmother came and picked up her and her
siblings.

{¶ 5} The mother, T.J., later recalled that on the night in question she realized
appellant had entered the house, and at some point she went to check on her
children. When she entered the child victim's bedroom, she observed appellant with
his shorts down and the girl without clothing. She also saw appellant rubbing his
penis on the child victim's buttocks, however, she did not see appellant vaginally or
anally penetrate the girl. T.J. then started screaming at him. Appellant eventually left
the premises.

{¶ 6} Deputies from the Stark County Sheriff's Department were then dispatched to
the scene.[1]

{¶ 7} The child victim, after initially being taken to Aultman Hospital, was transferred
to Akron Children's Hospital on October 20, 2016 for treatment and evaluation, at
which time she was examined by Dr. Lindsay Kahlenberg, an expert in the field of
pediatric emergency medicine. Dr. Kahlenberg also spoke with the mother, but she
was not able to interview the girl, who didn't want to talk and remained quiet during
the examination process.

{¶ 8} On January 17, 2017, appellant was indicted by the Stark County Grand Jury
on one count of rape, R.C. 2907.02(A)(1)(b). He subsequently entered a plea of not
guilty.

{¶ 9} Appellant thereafter rejected a plea offer, and the matter proceeded to a jury
trial on April 11, 2017. As further analyzed infra, among the State's witnesses were
Dr. Kahlenberg and three specialists from the Ohio Bureau of Criminal Identification
and Investigation (hereinafter "BCI"), one of whom testified via a Skype connection.
After the State had presented its case, appellant unsuccessfully moved for acquittal.
No defense witnesses were called.

{¶ 10} The jury was instructed by the trial court on the crime of rape and the crime of
gross sexual imposition.[2] The jury thereafter found appellant guilty of rape of a child
under the age of thirteen and guilty of gross sexual imposition.

{¶ 11} The next day, the trial court conducted a sentencing hearing. The offense of
gross sexual imposition was merged with the offense of rape, and appellant received
a term of life in prison. He was also declared a Tier III sexual
offender. See Judgment Entry, April 20, 2017.
{¶ 12} On May 11, 2017, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:

{¶ 13} "I. THE JURY'S FINDING OF GUILT WAS NOT SUPPORTED BY


SUFFICIENT EVIDENCE."

I.
{¶ 14} In his sole Assignment of Error, appellant argues his conviction for rape was
not supported by sufficient evidence. We disagree.

{¶ 15} In reviewing a claim of insufficient evidence, "[t]he relevant inquiry is whether,


after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
492, paragraph two of the syllabus. It is well-established that the State bears the
burden of establishing each and every element of a charged crime and must do so
with proof beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No.
93356, 2010-Ohio-15, ¶ 11.

{¶ 16} R.C. 2907.02(A)(1)(b) states: "No person shall engage in sexual conduct with
another who is not the spouse of the offender or who is the spouse of the offender
but is living separate and apart from the offender, when * * * [t]he other person is
less than thirteen years of age, whether or not the offender knows the age of the
other person."

{¶ 17} Furthermore, R.C. 2907.01(A) states as follows: "`Sexual conduct' means


vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal opening of another. Penetration, however slight,
is sufficient to complete vaginal or anal intercourse."

{¶ 18} "Penetration of the vaginal cavity requires introduction of an object from


without, which necessarily implies some forceful spreading of the labia majora. The
penetration need only be `slight.' R.C. 2907.01(A). Therefore, if the object is
introduced with sufficient force to cause the labia majora to spread, penetration has
occurred." State v. Farr, 3rd Dist. Seneca No. 13-06-16, 2007-Ohio-3136, ¶ 17
(additional citations omitted).[3]

{¶ 19} The record in the case sub judice reveals Sergeant William Konic of the Stark
County Sheriff's Department testified that as part of his investigation he spoke inter
alia with T.J., the child victim's mother, and obtained information that appellant had
gone into the bedroom and "sexually assaulted" the girl. Tr. at 229. But Sgt. Konic
also noted that although appellant admitted that he had been in the child victim's bed
with her, he denied engaging in any sexual conduct or activity. Tr. at 230-231.

{¶ 20} The record also indicates the State called Dr. Lindsay Kahlenberg as its
expert in pediatric emergency medicine. Dr. Kahlenberg, with the aid of a diagram to
assist the jury, testified that she took four perianal swab samples and four vaginal
area swab samples from the child victim. Specifically, Dr. Kahlenberg testified that
she took the vaginal area swabs from the child victim after she pulled apart the girl's
labia. The doctor explained that "* * * the labia are marked on here so if you follow
those in, those are pulled apart and it's from inside. So it'd be — the best on this
diagram would probably be right in this area for the vaginal (indicating), it's not up —
not up near the top. Typically, the less sensitive areas just to do this posterior
part. So it is inside. For women, I would describe it as if they go to insert a tampon, it
would be in that area, but not the whole way in, but it does — we do kind of swab to
the edge there. * * *." Tr. at 290 (emphasis added).

{¶ 21} Dr. Kahlenberg continued by explaining that "* * * the skin is pulled kind of —
the lips or the labia are pulled and it's just inside * * *." Tr. at 291 (emphasis added).
However, she added that "* * * we don't go actually into what you would actually
consider the entrance to the vagina." Id. She also answered hypothetically on cross-
examination that if something in fluid form were to be found with this type of
swabbing, she "wouldn't be able to tell you how the fluid got there." Tr. at 306.

{¶ 22} The State next called Lindsey Pruneski, a BCI analyst, who conducted an
examination of the sexual assault kit obtained in the instant case. Her finding as to
the vaginal samples was "a presumptive positive for seminal fluid, no sperm
identified." Tr. at 316. Her finding as to the perianal samples, however, was "no
semen identified." Tr. at 318. She also tested the child victim's shorts, which resulted
in "no semen identified and amylase identified." Tr. at 319. As part of her protocol,
Pruneski then forwarded the various samples and a portion of the victim's shorts for
DNA analysis by a different unit within BCI. See Tr. at 318-320.

{¶ 23} The State also called Lynda Eveleth, a BCI analyst specializing in the area of
DNA. Eveleth's conclusion in regard to the vaginal swabs was "mixture detected,"
consistent with the child victim as a contributor. Tr. at 334. She also detected a
"male DNA type," but it was "not sufficient for comparison." Id. Her conclusion in
regard to the perianal swabs was "mixture" detected, consistent with the child victim
as a contributor. Tr. at 335. She also detected a "male DNA type," but it was "not
sufficient for inclusion." Id.

{¶ 24} Eveleth then testified concerning a second report, issued December 1, 2016,
which included a comparison to appellant's DNA. Regarding the vaginal swabs, the
child victim was included as a contributor. Additional data was obtained that included
a male DNA type, not sufficient for comparison. Appellant's sample was excluded as
a "major contributor." See Tr. at 338. Regarding the perianal swabs, the child victim
was included as a contributor, and this was consistent with the major DNA profile.
Additional data was obtained that included the male DNA type, but it was not
sufficient for inclusion. Tr. at 339. Appellant was excluded as the major contributor
and he was inconclusive as a minor contributor. Tr. at 340. There was not enough
DNA present from the minor contributor to make a conclusion regarding him being
excluded or included. Id. Finally, regarding the analysis of the crotch area of the
child victim's shorts, the DNA testing indicated that there was a mixture detected,
consistent with the child victim as a contributor and consistent with appellant as a
contributor. Tr. at 341. Also, the DNA testing of the swab taken from the shorts
revealed a mixture consistent with the child victim as a contributor and appellant as
a contributor. Tr. at 342.

{¶ 25} The final witness from BCI was Hallie Dreyer, who specializes in male-specific
DNA testing known as Y-STR testing. Tr. at 363. Dreyer testified that this type of
testing focuses on areas that are on the Y chromosome. Tr. at 366. Also, this testing
does not uniquely identify an individual, but it "can potentially link to a paternal
lineage." Id. In other words, the results of this testing do not enable one "to say it's
one male and only one male." Id. Dreyer noted that it is appropriate to do Y-STR
testing in situations where there is going to be a large amount of female DNA in the
samples that can potentially mask any foreign DNA. Tr. at 367.

{¶ 26} Regarding the vaginal samples, Dreyer testified that using Y-STR testing, she
obtained a single male profile that was consistent with appellant. Tr. at 369-370.
Neither appellant nor any of his paternal male relatives could be eliminated as the
source of this profile. Tr. at 370. From the vaginal samples, Dreyer found "a full Y-
STR profile in the nonsperm fraction, and a partial Y-STR profile in the sperm
fraction, both consistent with Mr. Williams." Id. Her findings were at a rarity of 1 in
621, which she noted was the highest statistic obtainable using this type of testing.
Tr. at 372.

{¶ 27} Regarding the perianal sample, Dreyer testified that she also obtained a
single male profile that was consistent with appellant. Neither appellant nor any of
his paternal male relatives could be eliminated as the source of this profile. Tr. at
371. Her findings were again at a rarity of 1 in 621. Id. However, no sperm fraction
was found in the perianal samples. Id.

{¶ 28} Defense counsel had no questions for Dreyer on cross-examination. See Tr.
at 373.

{¶ 29} In his present brief, appellant continues to emphasize that Dr. Kahlenberg
"admitted that fluid could travel from the buttocks area to the vaginal area."
Appellant's Brief at 11. However, we find the impact of this defense theory would
have been significantly diminished by the doctor's testimony that a "black light"
examination of the child victim's front and back revealed no external bodily
fluids. See Tr. at 284. Likewise, appellant points out that Dr. Kahlenberg saw no
evidence of trauma in the child victim's vaginal area. Tr. at 292. However, the doctor
opined that "we don't see [trauma evidence] as much as people would think" in
cases of alleged sexual assault on a child. Tr. at 293.

{¶ 30} In sum, the jury heard Dr. Kahlenberg's testimony that she obtained the
vaginal swab samples by pulling apart the labia on the child victim's genitalia. This
ultimately resulted inter alia in the BCI's Y-STR test results connecting appellant to
the samples. Upon review, considering the evidence in a light most favorable to the
prosecution, we conclude the jury could have made the reasonable inference that
appellant at minimum inserted his penis into his daughter's vagina via a separation
of the outer lips. Even if appellant was not shown to have placed his penis deep
inside the child victim's vagina, this does not eliminate a finding of penetration under
the Ohio statutory definition. Given the testimony at trial, the jury could have properly
determined that appellant at least slightly penetrated the girl's vaginal opening past
the labia majora.

{¶ 31} Accordingly, as summarized above, upon review of the record and transcript
in a light most favorable to the prosecution, we find that reasonable jurors could
have found appellant guilty beyond a reasonable doubt of the offense of rape as
charged.

{¶ 32} Appellant's sole Assignment of Error is therefore overruled.

{¶ 33} For the reasons stated in the foregoing opinion, the judgment of the Court of
Common Pleas, Stark County, Ohio, is hereby affirmed.

[1] During opening statements, appellant's trial counsel told the jury that appellant had indeed committed
a crime on the night in question, but that it was not rape. See Tr. at 165. Based on this and the rather
narrow focus of appellant's present brief, we will seek to limit our recitation and discussion of the deputies'
investigation in the interest of judicial economy.

[2] We also note appellant's trial counsel stated the following in closing arguments: "And is it his DNA?
Sure. Ladies and gentlemen, I'm not here to tell you he's not guilty. I told you from the beginning, he's
guilty, but he's guilty of gross sexual imposition." Tr. at 405. The parties' briefs do not explore whether or
not this constituted a stipulation to the scientific evidence upon which we should rely for purposes of our
"sufficiency of the evidence" analysis.

[3] Notably, by amendment effective Aug. 3, 2006, the General Assembly modified the definition of
"sexual conduct" in R.C. 2907.01(A) by substituting the word "opening" for the word "cavity" after the
phrase "vaginal or anal." See State v. Strong, 1st Dist. Hamilton No. C-100484, 2011-Ohio-4947, ¶ 52.
STATE OF CONNECTICUT,
v.
JOSEPH ABRAHAM.
(AC 38863).

Appellate Court of Connecticut.

Argued December 4, 2017.


Officially Released May 8, 2018.

Substitute information charging the defendant with the crime of sexual assault in the second
degree and with three counts of the crime of risk of injury to a child, brought to the Superior
Court in the judicial district of Hartford and tried to a jury before Mullarkey, J.; verdict and
judgment of guilty of sexual assault in the second degree and of two counts of risk of injury
to a child, from which the defendant appealed to this court. Affirmed.

Glenn W. Falk, assigned counsel, with whom, on the brief, was Robert M. Black,legal fellow,
for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P.
Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the
appellee (state).

Sheldon, Bright and Beach, Js.

Syllabus
Convicted of the crimes of sexual assault in the second degree and risk of injury to a child in
connection with the alleged sexual abuse of his minor stepdaughter, the defendant
appealed to this court. During trial, the trial court held a hearing on the admissibility of a
video recording of a second forensic interview of the victim by a clinical social worker, and
ruled that certain statements made during the second interview were admissible pursuant to
the medical diagnosis and treatment exception to the hearsay rule because the primary
purpose of that interview was medical. On appeal, the defendant claimed, inter alia, that the
trial court applied an incorrect standard to determine whether that video recording was
admissible under the medical treatment exception to the hearsay rule and that, even if the
court applied the correct standard, the video recording was not admissible pursuant to that
exception because the second interview was not reasonably pertinent to medical
treatment. Held that the trial court did not abuse its discretion in admitting the video
recording of the victim's second forensic interview under the medical treatment exception to
the hearsay rule: although that court applied an incorrect standard in ruling that the
statements in the second interview were admissible because the primary purpose of the
interview was medical, as the correct test is whether the interview had a medical purpose
from the victim's perspective, its ruling was nevertheless sustainable under the medical
treatment exception, as the correct standard is broader and more inclusive than the
standard applied by the trial court, and if the primary purpose of the interview was medical,
then it necessarily had a medical purpose; moreover, an objective observer could have
concluded that the second interview was reasonably pertinent to medical treatment under
the circumstances here, where there was testimony that the second interview was
conducted because the victim had disclosed additional information, it was recommended
after the interview that the victim continue therapy and undergo a medical examination, the
victim was asked whether she had any worries or any problems with any part of her body
and disclosed actual sexual intercourse, and the interview was conducted at a hospital and
resulted in a report that was added to the victim's medical file; furthermore, the defendant's
claim that successive interviews should categorically fall outside the medical treatment
exception was unavailing, as a trial court must determine whether the successive interviews
are reasonably pertinent to obtaining medical treatment and this court could not conclude as
a matter of law that successive interviews are never reasonably pertinent to medical
treatment, and even if the trial court's admission of the second interview was improper, it did
not substantially affect the verdict given that the state's case was supported by physical
evidence, including DNA analysis, and that the victim testified at trial as to all of the abuse
that she had disclosed in the second forensic interview.

Opinion
BEACH, J.

The defendant, Joseph Abraham, was convicted, after a jury trial, of sexual assault in the
second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in
violation of General Statutes § 53-21 (a) (2), and risk of injury to a child in violation of § 53-
21 (a) (1).[1] On appeal, the defendant claims that the trial court improperly admitted a DVD
recording of the victim's forensic interview. We disagree and affirm the judgment of the trial
court.

The following facts, found by the court or undisputed, are relevant to this appeal. On
February 27, 2013, the minor victim [2] reported to a social worker at her school that she had
been sexually abused by the defendant, her stepfather.[3] The social worker relayed these
allegations to the police and the Department of Children and Families (department) and an
investigation ensued. The victim's mother arranged for the victim to stay at the house of a
family friend for a few days and obtained a temporary restraining order against the
defendant. The defendant then left the family home to stay elsewhere, so that the victim
could return. Meanwhile, the department also directed the defendant not to stay in the same
house as the victim. The department then referred the victim for a forensic interview.

On March 4, 2013, the victim was interviewed by Lisa Murphy-Cipolla, the clinical services
coordinator at the Children's Advocacy Center at Saint Francis Hospital and Medical
Center. During the interview, the victim revealed that the defendant had "raped her," but she
did not provide further detail. After the first interview, Murphy-Cipolla recommended that the
victim undergo therapy and a medical examination. Later that month, the department
learned that the victim's mother had sought to modify the restraining order and that on one
occasion the defendant had picked the victim up from school. Upon a visit to the family
home, a department worker found the defendant in a room across the hall from the victim's
bedroom; the defendant left the house upon the worker's request. Following this incident,
the defendant and the victim's mother went to the ombudsman's office to file a complaint
against the department worker. While at the office, they revealed that the victim had
accompanied them there and was waiting in the car. Upon learning this, the ombudsman's
office contacted the department because of concern that the victim and the defendant had
been together.

On April 17, 2013, the department obtained temporary custody of the victim and
subsequently placed her with her maternal aunt, who later formally adopted the victim.
While staying with her aunt, the victim began to reveal additional information about the
sexual abuse she had suffered. The victim's aunt reported this to the department and the
victim was referred for another forensic interview. On June 11, 2013, the victim was
interviewed a second time by Murphy-Cipolla at the Children's Advocacy Center at Saint
Francis Hospital and Medical Center. During this interview, the victim disclosed more
extensive sexual abuse, including one instance of sexual intercourse. Murphy-Cipolla
recommended continued therapy and a medical examination. Both forensic interviews were
video recorded on DVDs and, after each interview, Murphy-Cipolla prepared a report and
added it to the victim's medical file at Saint Francis Hospital.

The defendant subsequently was arrested and charged with sexual assault in the second
degree, and three counts of risk of injury to a child. At trial, the state sought to introduce into
evidence the DVD recording of the second interview, and the defendant objected. The court
held a hearing on the admissibility of the DVD, at which the state argued that the interview
was admissible pursuant to § 8-3 (5) of the Connecticut Code of Evidence—the medical
treatment exception to the hearsay rule.[4] The state presented the testimony of Murphy-
Cipolla and other witnesses. Murphy-Cipolla testified that the "primary purpose" of forensic
interviews was to "elicit clear and accurate information . . . to minimize any additional
trauma to the child and to make the appropriate recommendations for mental health and/or
a medical exam." She testified further that forensic interviews were conducted upon
referrals "primarily from the department . . . [but also] from the emergency department,
pediatricians, police and, occasionally, a therapist." Finally, Murphy-Cipolla testified that
forensic interviews were typically observed from behind a one-way mirror by police and/or
department officials. She explained that toward the end of an interview, she typically
conferred with the observers to ensure "that everybody has heard the same thing and see if
[there are] any additional questions or anything that needs to be clarified." The defendant
objected to the admission of the second interview, arguing that it "was geared [toward the]
investigation of a criminal case and wasn't for the primary purpose of obtaining medical
treatment."

In its oral ruling, the trial court noted that "there is evidence that the [victim's] counseling,
[which] she was getting from the social worker at her middle school, was stopped. [The
victim's] [m]other tried to put the defendant back on the [list of persons authorized to pick
the victim up from school], [the] defendant was in the house on the date of the home visit by
the [department] worker, which was subsequent to the issuance of the temporary restraining
order. As far as we can tell . . . the temporary restraining order that was protecting the
[victim] in the case was vacated or dismissed at the mother's insistence. The mother, along
with the defendant, subsequent to the April 12, 2013 finding of the defendant hiding in the
bedroom upstairs, brought the victim, along with the both of them, to the ombudsman to
make a complaint against the social worker. There had been additional disclosures that
were made to [the victim's] aunt, now her adopted mother, and while there had been
arrangements made for the beginning of counseling at the Klingberg Clinic, it had not begun
yet. Under those circumstances, the department. . . requested that there be a second
forensic interview.

"It is [the] court's opinion and finding that that was primarily for medical purposes,
particularly additional counseling, particularly to find out if there had been any additional
assaults against [the victim] during the period of time that had elapsed between the initial
complaint and the number of contacts that the defendant had with her. Having watched the
second DVD, although neither . . . Murphy-Cipolla nor Detective [Craig] Browning
remembers exactly who asked what questions when there was a break taken, the break
that was taken in the forensic interview [on] June 11, 2013, was clearly marked when . . .
Murphy-Cipolla came back. She had additional questions for the [victim], particularly using
the standard anatomical form and asking her about what parts of her body were touched by
what parts of [the defendant's] body, asking about positions and asking about addresses
and occurrences. That may be medical, but it's also investigatory, and I think in a cautious
ruling that part of the DVD will be excluded and not shown to the jury. The first part . . . is
medical, particularly in the circumstance [where] the defendant had additional contact with
the [victim] and where her mental health counseling, as much as she got at [school], had
been cancelled by her mother." The court then admitted the DVD of the second interview
into evidence but excluded the portion of the interview subsequent to Murphy-Cipolla's
discussion with the observers. The defendant thereafter introduced into evidence a section
of the DVD of the first interview without objection from the state.

On appeal, the defendant argues that the trial court applied an incorrect standard to
determine whether the second DVD was admissible under the medical treatment exception.
He claims, however, that even had the court applied the correct standard, the second
interview was not admissible pursuant to the medical treatment exception to the hearsay
rule. Specifically, the defendant argues that the interview was not reasonably pertinent to
medical treatment because it was the victim's second forensic interview and, thus, its
purpose was more investigatory and less medical than that of the first interview.
Consequently, the defendant claims, any relationship the second interview bore to medical
treatment was "merely incidental." In making this argument, the defendant urges this court
to consider the rationale behind the medical treatment exception: that the declarant is
motivated to tell the truth when seeking medical treatment. If, however, the declarant is
simply reporting to an investigator, that motivation evaporates.

The defendant also contends that for reasons of policy, the medical treatment exception
should apply only to forensic interviews that "truly are pertinent to medical diagnosis and
treatment" and never, barring special circumstances, to successive interviews. He argues
that admitting subsequent interviews under the exception would "risk making the very
concept of the hearsay rules obsolete" because the state could "repeatedly refer a
complaining witness for interviews" until "[it] get[s] a suitably compelling version of the
story." Finally, the defendant argues that the trial court's improper admission of the second
interview was harmful because it bolstered the victim's credibility.

The state agrees that the trial court applied an incorrect standard for the medical treatment
exception but argues that the second DVD, nevertheless, was admissible under the correct
standard.[5] The court ruled that the statements made during the second interview were
admissible because the primary purpose of the interview was medical. As we conclude in
this opinion, the correct test is whether the interview had a medical purpose from the
victim's perspective. Concluding as we do, that it did have such a purpose, we hold that the
victim's statements made during that interview were admissible under the medical treatment
exception.

"We begin our analysis of the defendant's claim by setting forth the standard of review and
relevant legal principles. To the extent [that] a trial court's admission of evidence is based
on an interpretation of the Code of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are legal questions demanding plenary
review. . . . We review the trial court's decision to admit evidence, if premised on a correct
view of the law, however, for an abuse of discretion. . . . In other words, only after a trial
court has made the legal determination that a particular statement is or is not hearsay, or is
subject to a hearsay exception, is it vested with the discretion to admit or to bar the
evidence based upon relevancy, prejudice, or other legally appropriate grounds related to
the rule of evidence under which admission is being sought." (Internal quotation marks
omitted.) State v. Griswold, 160 Conn. App. 528, 536, 127 A.3d 189, cert. denied, 320
Conn. 907, 128 A.3d 952 (2015).

"The legal principles relating to the medical treatment exception are well settled.
Admissibility of out-of-court statements made by a patient to a medical care provider
depends on whether the statements were made for the purposes of obtaining medical
diagnosis or treatment. . . and on whether the declarant's statements reasonably were
related to achieving those ends. . . . The term `medical' encompasses psychological as well
as somatic illnesses and conditions. . . . Furthermore, statements made by a sexual assault
complainant to a social worker may fall within the exception if the social worker is found to
have been acting within the chain of medical care." (Citations omitted.) State v. Telford, 108
Conn. App. 435, 440, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008).

"[S]tatements may be reasonably pertinent . . . to obtaining medical diagnosis or treatment


even when that was not the primary purpose of the inquiry that prompted them, or the
principal motivation behind their expression." (Citation omitted; emphasis in original; internal
quotation marks omitted.) State v. Griswold, supra, 160 Conn. App. 552-53. "Although [t]he
medical treatment exception to the hearsay rule requires that the statements be both
pertinent to treatment and motivated by a desire for treatment . . . in cases involving
juveniles, [we] have permitted this requirement to be satisfied inferentially." (Internal
quotation marks omitted.) Id., 556; see also State v. Telford, supra, 108 Conn. App. 441-
42.[6]

In Telford, this court concluded that the victim's testimony that she had felt "upset," "mad,"
and "scared" as a result of sexual abuse, and that she had discussed the abuse with
someone at a hospital, was sufficient to permit an inference that the purpose of her
statements at her forensic interview had been to obtain medical
treatment. State v. Telford, supra, 108 Conn. App. 443. Similarly, in State v. Donald M., 113
Conn. App. 63, 71, 966 A.2d 266, cert. denied, 291 Conn. 910, 969 A.2d 174 (2009), this
court held that a medical purpose could reasonably be inferred where the victim did not
recall the purpose of the interview but the interviewer testified to informing the victim that
she would meet with someone at the hospital to determine whether she needed therapy or
other medical treatment.

In Griswold, this court concluded that the forensic interviews in that case were reasonably
pertinent to medical treatment because the interviewers testified that "the purpose of their
questions was to assist them in recommending medical examinations or mental health
treatment" and that they normally inquired whether the victims had "any concerns about
their bodies." State v. Griswold, supra, 160 Conn. App. 557. Although we observed
in Griswold that "the primary purpose of many of [the] questions appear[ed] to be directed
toward assisting law enforcement," the interviews were, nonetheless, reasonably pertinent
to medical diagnosis because the information obtained was "available and provided to
medical providers and mental health practitioners." Id.; see also State v. Giovanni P., 155
Conn. App. 322, 331-32, 110 A.3d 442 (affirming trial court's conclusion that interview had
medical purpose based on testimony of interviewer), cert. denied, 316 Conn. 909, 111 A.3d
883 (2015). Recently, in State v. Estrella J.C.,169 Conn. App. 56, 77-80, 148 A.3d 594
(2016), this court relied, in part, on the timing and context of the forensic interview to
conclude that an objective observer could determine that the interview had a medical
purpose. Because the victim in that case was undergoing treatment at the time that he was
interviewed, this court held that the interview was reasonably pertinent to obtaining medical
treatment. Id., 77. We observed further that "the involvement of a police officer in the
interview does not automatically preclude a statement from falling within the medical
diagnosis and treatment exception." Id.

Our case law, then, holds that the statements of a declarant may be admissible under the
medical treatment exception if made in circumstances from which it reasonably may be
inferred that the declarant understands that the interview has amedical purpose. Statements
of others, including the interviewers, may be relevant to show the circumstances.

Applying these principles to the present case, we conclude that the trial court properly
admitted the DVD of the second interview under the medical treatment exception. The
interviewer, Murphy-Cipolla, was the clinical services coordinator at the Children's
Advocacy Center at Saint Francis Hospital and Medical Center. She testified that the
"primary purpose" of forensic interviews is to "elicit clear and accurate information. . . to
minimize any additional trauma to the child and to make the appropriate recommendations
for mental health and/or a medical exam." Murphy-Cipolla specifically testified that the
second interview was conducted because the victim disclosed additional information and
that, after the interview, she recommended continued therapy and a medical exam for the
victim. As in Griswold, the victim in the present case was asked whether she had "any
worries or any problems with any part of [her] body." The victim also was asked to identify,
on an anatomical diagram, the body parts with which the defendant had had contact. The
interview was conducted at Saint Francis Hospital and Medical Center and a report
prepared after the interview was added to the victim's medical file. As in Estrella J.C., this
evidence provided a context which suggested a medical purpose for the victim's second
interview. Finally, Murphy-Cipolla testified, in response to a direct question from the trial
court, that in light of the victim's disclosure of actual sexual intercourse, the second
interview could be pertinent to additional medical or mental health treatment because of the
extent to which the sexual abuse affected the victim. We conclude that under these
circumstances an objective observer could conclude that the second interview was
reasonably pertinent to medical treatment. See State v. Estrella J.C., supra, 169 Conn. App.
76 ("[w]e reach this conclusion because . . . an objective observer could determine that the
victim's statements . . . were reasonably pertinent to obtaining medical treatment").

The defendant correctly urges that the rationale underlying the medical treatment exception
is that the declarant, in seeking medical treatment, has a motivation to tell the truth. That
rationale, however, does not require that the statements be made or elicited for the sole
purpose of medical treatment. See id., 74-75 ("[u]ndoubtedly, statements may be
reasonably pertinent. . . to obtaining medical diagnosis or treatment even when that was not
the primary purpose of the inquiry that prompted them, or the principal motivation behind
their expression" [emphasis in original; internal quotation marks omitted]); see
also State v. Griswold, supra, 160 Conn. App. 552-53 (same).[7] Because our law permits
the rationale behind this exception to be satisfied even if there is an additional purpose, the
defendant's argument is not persuasive. For this reason the trial court's ruling, albeit based
on an erroneous standard, is sustainable under the medical treatment exception. If
the primary purpose of the interview was medical, then it necessarily had amedical purpose.
Because the correct standard is broader and more inclusive than the standard applied by
the trial court, we find no error in the court's ruling. Accordingly, we conclude that the trial
court did not abuse its discretion in admitting the DVD recording of the second interview.

As for the defendant's policy argument, we are not persuaded that successive interviews
should categorically fall outside the medical treatment exception. Admissibility under the
medical treatment exception "turns principally on whether the declarant was seeking
medical diagnosis or treatment, and the statements are reasonably pertinent to achieving
those ends." (Internal quotation marks omitted.) State v. Griswold, supra, 160 Conn. App.
552. Although successive interviews may in some cases, as the defendant suggests, have
minimal medical purposes, it is for the trial court to determine whether they were reasonably
pertinent to obtaining medical treatment. We decline to hold as a matter of law that
successive forensic interviews are never reasonably pertinent to medical treatment.

In light of our conclusion, we need not address at length the defendant's argument that the
admission of the second DVD was harmful. We note, however, that the defendant
acknowledges that the interview "did not contain significant factual claims or allegations
independent of [the victim's] live testimony." He argues, nonetheless, that the interview
bolstered the victim's credibility, "which was a key issue at trial." The state's case, however,
was supported by physical evidence, including DNA analysis.[8] Moreover, the victim
testified personally at trial as to all of the abuse that she had disclosed in the second
interview.[9] Our review of the record, therefore, leaves us with a fair assurance that the trial
court's admission of the second interview, even if it had been improper, did not substantially
affect the verdict. See State v. Eddie N. C., 178 Conn. App. 147, 173, 174 A.3d 803
(2017) ("[a] nonconstitutional error is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict" [internal quotation marks omitted]), cert.
denied, 327 Conn. 1000, 176 A.3d 558 (2018).

The judgment is affirmed.

In this opinion the other judges concurred.


[1] The defendant was acquitted as to an additional count of risk of injury to a child in violation of § 53-21 (a) (2).

[2] In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of
risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be
ascertained. See General Statutes § 54-86e.

[3] The record reveals that the defendant first sexually abused the victim when she was eleven years old and
continued to do so until she was fourteen years old. The final act of sexual abuse was committed on February 25,
2013.

[4] Section 8-3 of the Connecticut Code of Evidence provides in relevant part that "[t]he following are not excluded by
the hearsay rule, even though the declarant is available as a witness . . . (5) . . . [a] statement made for purposes of
obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably
pertinent to the medical diagnosis or treatment."

[5] The state also argues that the defendant did not claim at trial that the medical treatment exception should not
apply to subsequent interviews as a matter of law. We review the defendant's argument, however, because it is tied
to and falls within the scope of his principal claim that the second interview in this case was not admissible under the
medical treatment exception. See State v. Telford, 108 Conn. App. 435, 441 n.5, 948 A.2d 350 (defendant allowed to
make more specific argument on appeal because it fell within scope of objection at trial), cert. denied, 289 Conn. 905,
957 A.2d 875 (2008).

[6] There is, then, no requirement of direct evidence of the declarant's state of mind at the time of the statement.
See State v. Telford, supra, 108 Conn. App. 441, in which this court agreed with the state's contention that "the
objective circumstances of the interview [may] support an inference that a juvenile declarant knew of its medical
purpose." This is not to say that direct evidence would not be useful in the inquiry.

[7] We note that the rationale underlying the medical treatment exception was satisfied in the circumstances of this
case. An objective observer could conclude that the victim understood, from the circumstances of the second
interview, that it was being conducted, at least in part, for medical treatment purposes. The interview took place at a
hospital and the victim knew from the first interview that treatment and counseling would likely follow the second
interview. That the interview may have had a dual purpose is of no moment.

[8] The last sexual assault occurred on February 25, 2013, two days before the victim reported the abuse on
February 27, 2013. The physical evidence presented at trial included swabs taken from the victim's external genital
area, containing semenogelin for which the defendant could not be ruled out as a source. In addition, the defendant
was identified as a contributor for secretions on underwear the victim wore after the last sexual assault, and as the
source of secretions on another pair of underwear retrieved from the victim's home.

[9] In fact, at trial, the victim revealed two instances of sexual intercourse with the defendant that she previously had
not disclosed in either interview.
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL DAVID IKELER, Defendant and Appellant.
No. B281199.

Court of Appeals of California, Second District, Division Three.

Filed May 8, 2018.

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct.
No. YA092277, Eric C. Taylor, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney


General, Lance E. Winters, Assistant Attorney General, Stephen D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

DHANIDINA, J.[*]

Defendant and appellant Michael David Ikeler abducted two-year-old Stacie and
sexually assaulted her. A jury found him guilty of one count of a lewd act on a child
under the age of 14 and two counts of sexual penetration of a child 10 years old or
younger. On appeal, Ikeler contends that the trial court erred by admitting
statements allegedly obtained in violation of Miranda[1] and by imposing consecutive
sentences on those counts. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND


I. Factual background
A. The kidnapping of Stacie
Marisol and Jesus had two daughters, Angie, who was 10 years old at the time of
these events, and Stacie, who was two years old and preverbal. Marisol and Jesus
did not live together, but they continued to have sexual relations.

Defendant Ikeler worked at the Tesoro refinery in Wilmington. At 3:15 p.m. on April
2, 2015, Ikeler picked up layoff documents from Patricia Sandoval. Sandoval saw
Ikeler in a white car. Just an hour later, at approximately 4:30 p.m., Marisol was at a
self-serve car wash in Gardena with Angie and Stacie. The kids were outside the car
while Marisol cleaned it. Marisol heard Stacie yell, "mom." When Marisol looked,
Stacie was gone. Police officers did not find her.

Around the time Stacie went missing, Yolanda Outlaw and David Groce were taking
a break outside, at the back of the restaurant where they worked. They saw a white
Nissan Maxima or Altima with rear tinted windows drive down the alley twice in the
same direction, which they thought was odd. Outlaw and Groce identified Ikeler as
the driver of the car from photographic six-packs and at trial. Video surveillance
showed what appeared to be a white Nissan Altima with tinted windows make two
passes through the alley. The car had a front license plate the first time it passed
through the alley; the second time it did not have the front license plate.

That evening at approximately 7:00 p.m., Eric Renteria was at Jim's Burgers in the
City of Cudahy, which was approximately 13 miles from where Stacie had been
kidnapped. Renteria saw a 2007 to 2010 white Nissan Maxima or Altima with what
looked like tinted windows pull into a parking lot for no more than a minute, reverse
toward a dumpster, and then go forward again. When Renteria looked again a
minute later, the car was gone but something that looked like a trash bag was on the
floor. A couple soon found Stacie, naked, sitting in a puddle of what appeared to be
urine next to a dumpster.

B. Forensic evidence
Susan Barie, a sexual assault nurse, examined Stacie the same evening she was
found. Stacie had dried secretions on her right armpit, left lateral lower leg and left
shin. The area around Stacie's urethra and her entire hymen had "red bruising."
Stacie also had multiple external anal tears, and, based on their location, something
penetrating the anus likely caused them. In Barie's opinion, "sexual abuse [wa]s
highly suspected."

The next day, April 3, 2015, Malinda Wheeler, conducted a follow-up examination of
Stacie. Wheeler also saw bruising to Stacie's hymen, which, in Wheeler's opinion
was caused by significant penetrating blunt force trauma. In addition to the external
anal tears Barie had documented the day before, Wheeler saw an internal tear at
the anal opening, which was acute and fresh. Significant blunt force trauma caused
the internal and external tears, both of which were consistent with someone
penetrating Stacie's anus with a finger, penis or other object.

Extensive DNA evidence was admitted, the gist of which was that Ikeler's DNA was
on multiple areas of Stacie's body. The DNA could have come from Ikeler touching
her or from his semen or saliva. Jesus's DNA was also on his daughter's body, but a
greater amount of Ikeler's DNA was on her. Indications for semen were found on 12
places on Stacie's body: right breast, left and right hand and wrist, right armpit, left
thigh, left shin, left leg, mons pubis area, external oral, vulva, vestibule, and external
anal.[2] DNA testing showed, for example, that Ikeler was a possible contributor to
the right breast epithelial fraction, and a "statistical analysis for [Ikeler's] profile" was
1 in 658 billion. The mons pubis epithelial fraction contained a mixture of four
contributors, and Ikeler was included as a contributor. A "statistical analysis" for
Ikeler's profile for the mons pubis epithelial fraction was 1 out of 1.45 quadrillion.

C. Prior acts evidence


Ikeler had been married twice. He and Mayely Lopez were married in 2009 and
separated in 2013.[3] While they were married, she saw, on a computer Ikeler had
access to, an image of naked or nearly naked young girls, approximately 12 years
old and over. In 2013, Lopez found videos of naked young girls, five or six and older,
orally copulating and having sexual intercourse with adult men. When she found the
videos, she called Ikeler's former wife, Adrienne Ikeler.

Adrienne testified that she and Ikeler got married in 2001. During their three-year
marriage, she saw a still image on Ikeler's computer of two girls between the ages of
three and seven sitting next to an erect penis. In March 2015, she saw Ikeler in a
white Nissan Altima.

D. Defense evidence
Various witnesses testified for the defense, including a DNA expert and an
eyewitness and memory expert. Ikeler also testified. He denied knowing about the
child pornography, and he denied abducting and raping Stacie. Rather, after getting
off work on April 1, 2015, he picked up a prostitute and got high on cocaine and had
sex with her in a motel room, the exact location of which he could not recall except
that it was in Lomita or Carson. After, he drove around her drug-dealing cousin
"Flaco," delivering drugs until the early morning hours. Ikeler then went to work on
April 2 from 6:00 a.m. to 2:30 p.m. Ikeler returned to the motel room at 4:00 p.m.,
and, for the next four hours, he repaired "Flaco's" car. Because "Flaco's" car was out
of commission, he borrowed Ikeler's car, a 2008 white Nissan Altima. "Flaco"
returned after a few hours in Ikeler's car, but it was now missing the front and rear
license plates. Also, the contents of a half-filled water bottle had been spilt onto the
front seat. That morning, Ikeler had brushed his teeth in the car and spit into the
bottle. Ikeler's work bandanas, which he used to keep the sweat out of his eyes,
were also on the front seat and were wet.

II. Procedural background


On January 27, 2017, a jury found Ikeler guilty of count 1, lewd act on a child under
the age of 14 (Pen. Code, § 288, subd. (a)),[4] and counts 2 and 3, sexual
penetration with a child 10 years old or younger (§ 288.7, subd. (b)). As to count 1,
the jury found true a kidnapping allegation (§ 667.61, subds. (a), (d)).

On March 1, 2017, the trial court sentenced Ikeler to 25 years to life on count 1, 15
years to life on count 2, and 15 years to life on count 3. The sentences were
consecutive.

DISCUSSION
I. Miranda
Before Ikeler was arrested on April 9, 2015, law enforcement questioned him at his
residence on April 7. Ikeler contends that his statements should have been excluded
because he was not given Miranda advisements. As we explain, we disagree.

A. Additional background
Ikeler moved to exclude statements he made on April 7, 2015, to Detective Oscar
Quintero Lopez (Quintero). At an Evidence Code section 402 hearing, Detective
Quintero testified that he and his team of four officers (a total of five people) arrived
at Ikeler's house. All officers had concealed firearms. Detective Quintero and his
sergeant wore raid vests with the word "police" on them, although the rest of the
team wore plainclothes. The detective and his sergeant knocked on the door. Ikeler
answered and stepped outside, onto the porch. Detective Quintero told Ikeler they
were investigating a kidnapping and that Ikeler's vehicle matched the description
provided by the news. The detective did not tell Ikeler he was a suspect. It began to
rain, so the detective asked Ikeler if he wanted to go inside, and Ikeler said yes.
Detective Quintero and his team went inside, to Ikeler's living room. When the
detective asked if he could look at Ikeler's vehicle, Ikeler gave them permission to do
so. In response to questions, Ikeler said he had bought the car from Carmax two
months ago but had not yet received license plates. The officers were in the house
more than 15 minutes but less than an hour. At the detective's request, Ikeler wrote
a statement. Ikeler was never handcuffed, detained or arrested at any point during
that encounter. Nor was he given Mirandaadvisements.
The trial court denied the motion to exclude Ikeler's statements, and Detective
Quintero thereafter testified in front of the jury about his April 7, 2015 encounter with
Ikeler in keeping with his testimony at the Evidence Code section 402 hearing,
adding that Ikeler had said he had removed tint from the car windows on April 4,
2015.

Thereafter, in the defense case on direct examination, Ikeler testified that when the
police came to his residence on April 7, he told them that on the day of the
kidnapping he was hanging out with a girlfriend in a motel room and drinking. At trial,
Ikeler admitted misleading the police by saying that he was at the motel all night.

B. Ikeler was not in custody


Ikeler contends that law enforcement should have given him Miranda advisements
because he was in custody. We disagree.

"Miranda requires that a suspect be given certain advisements to preserve the


privilege against self-incrimination, or to ensure its voluntary and intelligent waiver,
during the inherently coercive circumstances of a `custodial interrogation.'" (People
v. Webb (1993) 6 Cal.4th 494, 525-526.) Absent a custodial
interrogation, Mirandadoes not apply. (People v. Mickey (1991) 54 Cal.3d 612, 648.)
The test for whether a suspect is in custody is objective; the question is whether
there was a formal arrest or a restraint on the freedom of the suspect's movement to
the degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th
1370, 1400 (Leonard); see also Howes v. Fields (2012) 565 U.S. 499, 508-509.) In
making this determination, "[t]he totality of the circumstances surrounding an
incident must be considered as a whole. [Citation.] Although no one factor is
controlling, the following circumstances should be considered: `(1) [W]hether the
suspect has been formally arrested; (2) absent formal arrest, the length of the
detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor
of the officer, including the nature of the questioning.' [Citation.] Additional factors
are whether the suspect agreed to the interview and was informed he or she could
terminate the questioning, whether police informed the person he or she was
considered a witness or suspect, whether there were restrictions on the suspect's
freedom of movement during the interview, and whether police officers dominated
and controlled the interrogation or were `aggressive, confrontational, and/or
accusatory,' whether they pressured the suspect, and whether the suspect was
arrested at the conclusion of the interview." (People v. Pilster (2006) 138
Cal.App.4th 1395, 1403-1404; People v. Aguilera (1996) 51 Cal.App.4th 1151,
1162.)

Whether a suspect was in custody for Miranda purposes is a mixed question of fact
and law. (Leonard, supra, 40 Cal.4th at p. 1400.) "When reviewing a trial court's
determination that a defendant did not undergo custodial interrogation, an appellate
court must `apply a deferential substantial evidence standard' [citation] to the trial
court's factual findings regarding the circumstances surrounding the interrogation,
and it must independently decide whether, given those circumstances, `a
reasonable person in [the] defendant's position would have felt free to end the
questioning and leave' [citation]." (Ibid.; People v. Kopatz (2015) 61 Cal.4th 62, 80.)
If a Miranda violation has occurred, we review the error under the harmless beyond
a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Neal (2003) 31 Cal.4th 63, 86.)

To show that law enforcement violated his Miranda rights, Ikeler relies on U. S. v.
Craighead (9th Cir. 2008) 539 F.3d 1073. In that case, eight armed law enforcement
officers, including FBI agents wearing raid vests, served a search warrant on
Craighead, who was suspected of possessing child pornography. Some of the
officers unholstered their firearms in Craighead's presence. (Id. at p. 1078.) An
agent told Craighead he was free to leave and was not under arrest but also
"directed" him to a storage room, closed the door, and the agent and another
detective questioned Craighead for 20 to 30 minutes. (Ibid.) Craighead later testified
that he did not feel free to leave. Although the court acknowledged that an in-home
interrogation is not per se custodial, the court found that an in-home interrogation
becomes custodial when "the otherwise comfortable and familiar surroundings of the
home" become a "`police-dominated atmosphere.'" (Id. at p. 1083.) To determine
whether such an atmosphere was created, Craigheadfocused on the number of law
enforcement and whether they were armed, whether the suspect was restrained,
whether the suspect was isolated, and whether the suspect was told he or she was
free to leave. (Id. at p. 1084.) Weighing these factors, the court concluded that the
defendant was in custody and Mirandawarnings were required.

Craighead does not help Ikeler. Although the questioning occurred at Ikeler's
residence, officers only entered his home after asking if they could come in, and
there was no concurrent search pursuant to a warrant, as in Craighead. (See,
e.g., People v. Breault (1990) 223 Cal.App.3d 125, 135 [totality of circumstances,
including that questioning occurred in defendant's home, showed that he was not in
custody].) Ikeler was not handcuffed or restrained in any way, and he was not
arrested. He was not isolated. Instead, the questioning occurred in Ikeler's living
room, not a small storage room with the door closed. Also, Detective Quintero did
not tell Ikeler he was a suspect, which, in any event, would be of little moment,
because the mere fact an investigation has focused on a suspect does not trigger
the need for Miranda warnings in noncustodial settings. (Minnesota v. Murphy(1984)
465 U.S. 420, 431; People v. Linton (2013) 56 Cal.4th 1146, 1167; People v.
Moore (2011) 51 Cal.4th 386, 402.) The questioning did not last long, sometime
between 15 minutes and an hour, and nothing in the record suggests that the
officers behaved in an aggressive, confrontational or accusatory manner during the
questioning. Although the officers were armed, no weapons were drawn or
unholstered in Ikeler's presence. That Ikeler was outnumbered by the officers and
that two of them wore raid vests is insufficient to convert the scene into a custodial
one. Under the totality of these circumstances, Ikeler was not in custody and
no Miranda advisements were necessary.

II. Consecutive sentences


The trial court ran the sentences on counts 1, 2 and 3 consecutively. Ikeler contends
that the court erred in imposing consecutive sentences because there was
insufficient evidence they occurred on separate occasions. This contention,
however, rests on the faulty premise that section 667.6, subdivision (d), applied to
Ikeler's sentence. Subdivision (d) provides that consecutive sentences shall be
imposed for violations of offenses specified in subdivision (e) if, "between the
commission of one sex crime and another, the defendant had a reasonable
opportunity to reflect upon his or her actions and nevertheless resumed sexually
assaultive behavior. . . ." (§ 667.6, subd. (d).) However, the offenses for which Ikeler
was convicted are not specified in subdivision (e). Therefore, that section is
inapplicable.

Instead, whether consecutive sentences were properly imposed must be analyzed


under section 654. Section 654, subdivision (a), provides that an act or omission
punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but not
under more than one provision. The section thus bars multiple punishments for
offenses arising out of a single occurrence where all were incident to an indivisible
course of conduct or a single objective. (People v. Correa (2012) 54 Cal.4th 331,
335; People v. Jones (2012) 54 Cal.4th 350, 358 ["Section 654 prohibits multiple
punishment for a single physical act that violates different provisions of
law."]; People v. McKinzie (2012) 54 Cal.4th 1302, 1368, abrogated on other
grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) Whether a course of
criminal conduct is divisible depends on the actor's intent and objective. (People v.
Jones(2002) 103 Cal.App.4th 1139, 1143.) If all the offenses were merely incidental
to, or were the means of accomplishing one objective, the defendant may be found
to have harbored a single intent and therefore may be punished only once. (People
v. Capistrano (2014) 59 Cal.4th 830, 885.) But if the defendant harbored multiple or
simultaneous objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an otherwise
indivisible course of conduct. (Jones, supra, 103 Cal.App.4th at p. 1143.)

However, "section 654 does not bar multiple punishment simply because numerous
sex offenses are rapidly committed against a victim with the `sole' aim of achieving
sexual gratification." (People v. Harrison (1989) 48 Cal.3d 321, 325; see also People
v. Scott (1994) 9 Cal.4th 331, 347 [if multiple punishment were barred for separate
lewd acts committed on the same occasion, "the clever molester could violate his
victim in numerous lewd ways, safe in the knowledge that he could not be convicted
and punished for every act"]; People v. Perez(1979) 23 Cal.3d 545, 553-554; People
v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.) "In other words, section 654
does not preclude separate punishment for multiple sex offenses which, although
closely connected in time and part of the same criminal venture, are separate and
distinct, and which are not committed as a means of committing any other sex
offense, do not facilitate commission of another sex offense, and are not incidental
to the commission of another sex offense." (People v. Castro (1994) 27 Cal.App.4th
578, 584-585.)

Whether section 654 applies is a question of fact for the trial court, and its findings
will not be reversed on appeal if there is any substantial evidence to support them.
(People v. Capistrano, supra, 59 Cal.4th at p. 886; People v. Jones, supra, 103
Cal.App.4th at p. 1143.) "In the absence of an explicit ruling by the trial court at
sentencing, we infer that the court made the finding appropriate to the sentence it
imposed, i.e., either applying section 654 or not applying it." (People v. Mejia(2017)
9 Cal.App.5th 1036, 1045; People v. McKinzie, supra, 54 Cal.4th at p. 1368.)

The evidence shows that Ikeler committed multiple sexual offenses against Stacie, a
child unable to verbalize or otherwise explain what he did to her. Ikeler had the child
for an approximate two and a half hours. DNA evidence shows what happened
during that time: Ikeler penetrated Stacie with an object at least twice, once vaginally
and once anally. Those two penetrations were separate acts. (See People v. Scott,
supra, 9 Cal.4th at pp. 341-348.) Further, Ikeler's DNA was all over Stacie's body,
including her right breast and mons pubis. Ikeler left Stacie near a dumpster, naked.
This constitutes substantial evidence of additional lewd conduct. The trial court did
not err by declining to apply section 654.

DISPOSITION
The judgment is affirmed.

EDMON, P. J. and LAVIN, J., concurs.

[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.

[1] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[2] The sperm fraction on Stacie's right armpit came from her father, Jesus. Jesus and Marisol testified
that they had sex on April 1, 2015, the day before Stacie was abducted. He wiped his ejaculate with a
towel and threw it into a laundry basket, which Stacie might have played in. Marisol or Jesus also might
have picked Stacie up with unwashed hands.

[3] Ikeler told Lopez he'd had a vasectomy, which explained why DNA analysis failed to find sperm heads.

[4] All further undesignated statutory references are to the Penal Code.
THE PEOPLE, Plaintiff and Respondent,
v.
OSCAR HIGUEROS, JR., Defendant and Appellant.
2d Crim. No. B276709.

Court of Appeals of California, Second District, Division Six.

Filed May 8, 2018.

Appeal from the Superior Court County, Super. Ct. No. 14C-32821, of San Luis
Obispo, Jacquelyn H. Duffy, Judge.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney


General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Ilana Herscovitz, David W. Williams, Deputy
Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

GILBERT, P. J.

A jury convicted Oscar Higueros, Jr. of seven counts of forcible rape (Pen. Code §
261, subd. (a)(2),[1] counts 1-7); six counts of forcible oral copulation (§ 288a, subd.
(b)(1), a lesser included offense of counts 19-24); forcible sodomy (§ 286, subd.
(c)(2)(C), count 25); dissuading a witness by force or threat (§ 136.1, subd. (c)(1),
count 28); two counts of trafficking of a minor for a sex act (§ 236.1, subd. (c)(1),
counts 29 and 30); possession of marijuana for sale (Health & Saf. Code, § 11359,
count 34) and possession of cocaine (id., § 11350, subd. (a), count 35). As to the
rape and forcible oral copulation counts, the jury found that each count was
committed on a separate occasion. (§ 667.6, subd. (d).) The trial court sentenced
Higueros to 167 years 8 months to life in prison. We affirm.

FACTS
Jane Doe turned 17 years old in June 2014. She lived with her mother. In July 2014,
her mother took a two-week trip and left her home alone. While home alone, Jane
met Richard Brooks. Brooks told Jane he wanted her to have sex with men for
money. He would be her pimp and she would be his prostitute. Brooks advertised
Jane's availability on Craigslist as someone who had just turned 18 years old.

On July 27, 2014, Higueros responded to the advertisement. He met Jane the next
day. He paid Brooks $150 and had vaginal and oral sex with Jane. Higueros took a
video of himself having sex with Jane. Afterwards he asked Jane for her phone
number. She gave it to him because she found him attractive. Higueros sent a still
picture of himself having sex with Jane to Brooks.

On July 30, 2014, Jane and her mother got into an argument. Jane left the house
and asked Higueros if she could stay with him. He welcomed her into his home.
They had sex that night.

The next morning Meghan Doe arrived at Higueros's home. Meghan and Higueros
had been dating for about 18 months. Meghan was upset to see Jane in Higueros's
bed. Higueros pushed Meghan and told her to leave.

At first Higueros was nice to Jane. Soon, however, he began making demands. He
assigned her household chores and demanded that she perform them to exacting
specifications. If she did not perform the chores to his specifications, he berated her
and threatened to harm her and her family. She feared he would harm her if she did
not comply.

Higueros commanded Jane to call him "Daddy." He called her "Kitty" and "Bad Kitty"
if she did something wrong. Higueros wanted Jane to find other women for him to
have sex with. He called the other women "mice."

After the first few days living together, Jane told Higueros that she was only 17 years
old. He said he did not believe she was 18 years old to begin with.

Higueros and Jane had sex at least twice a day and sometimes up to five times.
When Jane complained of vaginal pain, Higueros replied, "Daddy didn't care. Daddy
gets what he wants." Jane felt she could not say no to sex.

On August 12, 2014, Jane's friend, Erick Ramos, visited Jane at Higueros's house.
Higueros was not home. Jane texted Higueros to ask if she could have sex with
Ramos. The request angered Higueros.

When Higueros got home, he called Jane a slut and told her she deserved to be
punished. He ripped off her clothes and lifted her arms above her head. He grabbed
her wrist so hard that it broke. He strangled her. She could barely breathe and
feared he was killing her. He pushed her to the floor and had violent vaginal
intercourse with her while restraining her arms above her head. She did not want to
have sex with Higueros. She referred to the incident as the "hate rape." A sex video
filmed after the hate rape shows Jane's wrist wrapped in a bandage.

The next morning Jane sent Higueros a message that included an attachment
regarding sexual offenses against minors in California. Higueros conducted a
number of Internet searches on whether an emancipated minor can date someone
over 18 years old.

After the "hate rape," Higueros continued to have both vaginal and oral sex with
Jane two to five times a day. Jane believed she could not say no. When she did say
no, Higueros would reply, "Daddy gets what Daddy wants." On at least one
occasion, Higueros slapped Jane's face and left bruises on her neck and buttocks.
These injuries occurred during sex while Higueros held Jane down.

When Jane threatened to leave, Higueros threatened to kill her. Higueros told Jane
that he murdered his father. This frightened Jane. She was aware his father had
been murdered and the perpetrator had never been found.

Higueros wanted to make videos of Jane performing sex acts with him. She had no
job and they needed money. Higueros told her she could make money by selling
marijuana and making "our own porn." He wanted to sell the videos on a website
called Chaturbate, which permits users to pay to view sexually explicit video.
Higueros frequently logged onto Chaturbate under the username "magicmike832."
He made several videos with Jane. She felt she would be hurt if she did not comply.
One of the videos showed Higueros sodomizing Jane.

Over time the videos became violent. Higueros placed a belt around Jane's neck to
control her during sex. He also used a belt to spank her on the buttocks, leaving
marks.

On August 25, 2014, a professor at Cuesta College contacted the sheriff's


department. He reported that he had heard a juvenile might be in trouble. After some
investigation, Deputy Sheriff Peter Cramer called Jane on August 27, 2014, and left
a message asking her to return his call. Higueros listened into Jane's return call,
telling her what to say. Cramer could hear his voice in the background. Jane agreed
to meet with Cramer at the sheriff's station that afternoon. Higueros told Jane to say
she was in a lesbian relationship and Higueros was her roommate.

At the sheriff's station, Jane initially told Cramer the story as instructed by Higueros.
Eventually she told Cramer the truth.

The same day, Dr. Nisha Abdul Cader examined Jane. Cader found bruises on
Jane's arm where she was grabbed, an abrasion on her knee and bite marks on her
thigh. Cader also found swelling and irritation on Jane's lower back and abdomen,
swelling and tenderness in her left wrist, shoulder and clavicle, and inflammation
inside Jane's mouth.

Nurse practitioner Elizabeth Ramirez conducted a forensic examination of Jane.


Ramirez found fluorescence on Jane's breasts and labia majora. She also found
lacerations on Jane's labia minora and hymen. A DNA test of a sample from Jane's
breasts showed strong evidence that Higueros was the donor.

Pursuant to a search warrant executed on Higueros's residence, sheriff's deputies


found marijuana, baggies, a scale and a pay and owe sheet. An expert testified the
marijuana was possessed for sale. Deputies also found a small container of cocaine.

Propensity Evidence
Evidence Code Section 1108[2]
(a) April Doe
April was 23 years old in 2004 when she met Higueros. In October 2004, April told
Higueros she was not interested in having a relationship with him anymore.
Higueros told April he wanted to be physical with her one more time. April said no.
Higueros picked her up and placed her on the bed. He took off her pants, performed
oral sex on her, and had vaginal sex with her. April cried and said no multiple times.
Higueros told her "Let it happen. We're going to be together and then I'll leave."

(b) Laura Doe


For 12 or 13 years, beginning when Laura was 21 years old, she had an intermittent
sexual relationship with Higueros. Initially the relationship was consensual. That
changed in the fall of 2012.

Higueros invited Laura to his house. After she orally copulated him, he pushed her
down and told her to crawl. He dragged her by her hair into the bedroom. He pulled
her onto the bed and had sex with her. Then he tied his belt around her neck. Laura
said no and tried to fight him off. He told her, "You don't tell me no. You owe me."

With one hand Higueros held Laura's hands above her head and tightened the belt
around her neck with the other hand. He pulled down the top of Laura's dress and
bra and whipped her bare breasts with the tip of the belt. He raped her. Laura said
no multiple times and cried. He asked if she was crying. When she said yes, he said
"good."

(c) Meghan Doe


Meghan met Higueros in April 2013 when she was 34 years old. In the beginning
they had sex two or three times a day. Higueros wanted Meghan to call him
"Daddy." He called her "Kitty." He had her do domestic chores to his exacting
specifications. If she did something wrong, he gave her a look of hatred.

Higueros was violent with Meghan on at least seven or eight occasions. He pulled
her hair, hit her, dragged her and threw her on the floor. On one occasion, he
grabbed her by the hair and threw her face down on the carpet. He pulled down her
pants and "shoved" his penis into her anus. He was rough and abusive. She tried to
get away but eventually succumbed because it was easier to obey.

Higueros showed interest in underage girls. When high school age girls walked by,
he made vulgar gestures. He told Meghan there was a virgin on Craigslist who
wanted to have sex with him. He said he would give the person on Craigslist an
"amazing experience" and would save her from losing her virginity to a predator.

Meghan ended the relationship when she went to Higueros's house one morning
and found Jane in his bed. He pushed Meghan and told her to leave.

(d) Janica Doe


Janica met Higueros at the beach when she was 16 years old. She told him she was
16. He said he was 27. After meeting four or five times, they touched each other's
genitals in his truck.

On one occasion they went behind the dunes. Higueros exposed his erect penis and
guided her head toward it. Janica resisted. She said, "Aren't you worried; I'm not
18." Eventually he put his penis back in his pants and they left the dunes.

On another occasion Higueros invited Janica to his house. Higueros blocked the
door so she could not leave and pressured her into going into the bedroom. She did
not want to have sex with him. She tried to play it as "cool" as possible to prevent
the situation from escalating into violence.

Higueros took out his erect penis and asked Janica to perform oral sex. She told him
someone was waiting for her and left the house. She feared that if she told him she
did not want to have sex with him, he would rape her.

(e) Mary Doe


Mary was in her early 20's in 2013 when she was dating Higueros. They had
consensual sex on three or four occasions.
In March 2013, Mary and Higueros attended Mary's roommate's birthday party. Mary
had three glasses of wine. She lost consciousness and suspected she had been
drugged. She remembers being on her bed with Higueros. He put her roommate's
dog leash on her neck and began tightening it. He wanted her to put pornography on
her laptop computer. When she refused, he became angry and began choking her
with the leash. He hit her face several times.

The next thing Mary remembered is waking up naked alone in her bed, the dog
leash still around her neck. Her vaginal area was sore. She felt something bad had
happened. Bruises developed on her ankles, wrists, inner thigh and face. Her
roommate had to help her walk around the house for two days.

Higueros sent Mary a picture of herself lying on the bed naked, her left wrist
handcuffed to her left ankle. Mary had no memory of the picture having been taken.

(f) K. Doe
K. was 26 years old when she met Higueros. They had consensual sex on the night
they met. Later, as with the other women, he demanded that she perform household
chores to his exacting specifications. If she failed to perform the chores properly, he
would call her names and require her to engage in forceful sex. They typically had
sex multiple times a day. If K. did not do what he wanted sexually, he would punish
her by engaging in more violent sex and pull her hair out.

On one occasion, after they had sex four or five times, K. told Higueros to stop
because it hurt. He kept penetrating her for several more minutes before stopping.
He inspected her vagina, and it was torn.

K. realized the relationship was abusive and tried to stop seeing Higueros. He
threatened her that if she did not come back, he would place naked photographs of
her and videos of them having sex on-line.

K. went to Higueros's home to ask him not to put the photographs and videos on-
line. Higueros asked to see her phone. He saw pictures of K. and her boyfriend
having sex. He became angry. He grabbed her and choked her. She rolled over on
her side in the fetal position. He used both of his hands to open her knees. She did
not want her knees spread apart and was trying to prevent it from happening. She
was crying and shaking. He told her to stop crying. He had violent sex with her. She
decided that just letting it happen would be easier than saying no. She did not want
to have sex with him. She was afraid that if she even moved it would get worse.

Afterwards K. tried to leave. Higueros grabbed her and took her back into the
bedroom. He threatened more sexual violence if she did not sleep with him that
night. She slept with him and left in the morning.
Sexual Trafficking Expert
Sharon Cooper, M.D., is a developmental and forensic pediatrician. She described
the various stages of human trafficking. First the trafficker befriends or romances the
victim. The victims are often vulnerable children. Then the trafficker demands that
the child bring in money. Thereafter, the relationship is about business and violence.

Cooper also testified about Child Sexual Abuse Accommodation Syndrome


(CSAAS), including why children cannot leave a sexually abusive relationship.

Defense
Higueros testified on his own behalf. He said he met Jane through Craigslist. The
listing said she was over age 18. Jane told him she was 18. He had no reason to
doubt her.

Higueros denied he paid Brooks to have sex with Jane. Brooks only wanted to watch
them having sex. He did not ask for money.

Later Jane texted Higueros to say her mother punched her. She asked if she could
move in with him. He told her to go to his house. Jane spent the night. The next
morning Meghan arrived. Meghan began yelling and ripped the sheets off the bed
where Jane was sleeping. He told Meghan in a stern voice to leave. He did not
threaten Meghan or physically push her.

Jane was involved in an automobile accident on August 8, 2014. She hurt her arm.
Higueros wrapped an ACE bandage around her wrist.

On August 12, 2014, Higueros and Jane got into an argument. Jane asked his
permission to have sex with a male friend. Higueros hurt Jane "a little emotionally,"
but he denied he forced her to have sex.

Jane punched a cabinet earlier that day and complained her wrist was sore. He
wrapped it in an ACE bandage. Later that day they made a sex video. That is the
bandage seen in the video. He denied he grabbed Jane or hurt her.

Higueros used his cell phone to research the law on statutory rape and
emancipation. He did so to find out whether he was a mandatory reporter about an
incident that occurred with Jane before June 30, 2014, about a month before they
met and the date on which Higueros believed she turned 18 years old.

Higueros found out Jane was a minor on August 22, 2014, when he overhead Jane's
friend ask her if Higueros knew she was under 18 years old. Higueros said he would
never have had sex with Jane if he knew she was a minor.
Higueros denied that he ever hit, kicked or otherwise assaulted Jane. She never
said no during sex. He denied that Janica told him her true age.

Jane called Higueros at the direction of law enforcement. A recording of the call was
played during the defense case. Jane said she was in protective custody. She had
been telling them that she is his roommate, but they do not believe her. Higueros
said, "Wait, like my name's out?" Jane asked Higueros what she should say. He
replied, "Baby, just say Shayla's your girlfriend. . . . I met you on the beach with your
dog when you were having a bad day and didn't have a place to stay." Higueros told
Jane that they probably monitored the phone. She asked, "[W]hat's gonna to happen
to us?" He replied, "Just like we said, we're gonna wait . . . a year." Jane denied he
ever said that. Higueros told her nothing has gone on. He said she has to be careful
about what she says. He accused her of lying to him about being under age and
about filling out emancipation papers. Jane denied lying to him about anything. They
argued about whether she lied to him about her age.

Higueros denied that he threatened Jane or any other woman. He also denied
choking or raping anyone. He admitted being attracted to Janica but said she did not
tell him her true age.

DISCUSSION
I
Higueros contends the trial court erred in admitting the testimony of other victims
pursuant to Evidence Code section 1108.[3]

Section 1101, subdivision (a) provides that evidence of a person's character or trait
of character is inadmissible to prove his or her conduct on a specified occasion.

Section 1108, subdivision (a) provides: "In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant's commission of another
sexual offense or offenses is not made inadmissible by Section 1101, if the evidence
is not inadmissible pursuant to Section 352."

Section 352 gives the trial court the discretion to exclude evidence if the probative
value of the evidence is substantially outweighed by a substantial danger of undue
prejudice. (See People v. Loy (2011) 52 Cal.4th 46, 62.) Here the trial court admitted
the evidence over Higueros's section 352 objection.

On appeal, Higueros challenges only four of six propensity witnesses: Mary, Janica,
K. and Meghan. He does not challenge the testimony of April and Laura. But all six
witnesses supported Jane's testimony.
Higueros's argument is based on a view of the evidence most favorable to himself.
But that is not how we view the evidence. We view the evidence in a light most
favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Higueros claims Meghan did not testify to any sexual acts that were not consensual.
But Meghan testified that on one occasion Higueros grabbed her by the hair, threw
her face down on the carpet, pulled down her pants, and "shoved" his penis into her
anus. She said she tried to get away but could not. That she eventually succumbed
does not mean the sex was consensual.

K. testified that on one occasion after they had sex four or five times she told him to
stop because it hurt. Nevertheless, he continued to penetrate her for several more
minutes. On another occasion, Higueros grabbed her and choked her. She rolled
over in a fetal position, crying and shaking. He used both hands to force her knees
apart. He told her to stop crying and had violent sex with her. She just let it happen
because she was afraid if she moved he would become more violent. Letting the
rape continue for fear of further violence does not constitute consent.

Mary testified she had been drinking at a party. Higueros wanted her to put
pornography on her computer. When she refused, he began choking her with a dog
leash. He hit her face several times. The next thing Mary remembered was waking
up naked. Her vaginal area was sore and she had bruises on her face, ankles, wrists
and inner thigh. Later, Higueros sent her a picture of herself lying naked on the bed
with her left wrist handcuffed to her left ankle. It was obvious Higueros had violent
sex with her while she was unconscious.

In each case the testimony of the witnesses showed Higueros had a propensity to
commit violent non-consensual intercourse or sodomy. The testimony was highly
probative of his guilt on the charged offenses. The trial court acted well within its
discretion in finding the probative value of the evidence is not outweighed by the
danger of undue prejudice.

Janica did not testify to forcible rape or sodomy. She did testify that Higueros knew
she was under 18 years of age. Knowing she was under age, he touched her genital
area and asked her to orally copulate him. This shows his propensity to engage in
sexual acts with girls, knowing the girls are under age. It is highly probative of his
guilt on the charged offenses. The trial court did not abuse its discretion in admitting
the evidence.

Higueros argues that section 1108 violates his constitutional rights to due process
and equal protection. The argument has been rejected by our Supreme Court.
(People v. Falsetta (1999) 21 Cal.4th 903, 918, 922.)

II
Higueros contends the trial court erred in admitting expert opinion on human
trafficking.

A person with special knowledge, skill, experience, training or education in a


particular field may give testimony in the form of an opinion related to a subject that
is sufficiently beyond common experience that the opinion of an expert may assist
the trier of fact. (Evid. Code, §§ 720, 801, subd. (a).)

Human trafficking is inducing or persuading or an attempt to induce or persuade a


minor to engage in a commercial sex act. (§ 236.1, subd. (c).)

Higueros argues there is nothing about human trafficking in this case that is beyond
the comprehension of the average juror: Brooks offered Jane's sexual services and
Higueros accepted; Higueros had Jane perform sex acts in videos that he could in
theory have exchanged for consideration. But the average juror is not so
experienced in human trafficking that expert opinion would not be helpful.

Higueros argues Dr. Cooper's testimony went beyond what is permitted of an expert.
He claims Cooper vouched for Jane's credibility. Of course, the testimony supported
Jane's credibility. It would be irrelevant if it did not either support or impeach her
testimony. But it did not vouch for her credibility. Cooper testified in generalities
about human trafficking. She did not specifically discuss Jane's situation.

III
Higueros contends the trial court erred in refusing to instruct on
the Mayberrymistake-of-fact defense.

In People v. Mayberry (1975) 15 Cal.3d 143, 155, our Supreme Court determined
that a defendant's reasonable and in good faith belief in a person's consent to
sexual intercourse is a defense to rape.

Counts 1 through 12 charged Higueros with forcible rape. The trial court instructed
the jury with CALCRIM No. 1000, which provides in part: "The defendant is not guilty
of rape if he actually and reasonably believed that the woman consented to the
intercourse and actually and reasonably believed that she consented throughout the
act of intercourse. The People have the burden of proving beyond a reasonable
doubt that the defendant did not actually and reasonably believe that the woman
consented. If the People have not met this burden, you must find the defendant not
guilty." That is an adequate Mayberry instruction.

The trial court also instructed the jury with CALCRIM No. 3406, which provides in
part: "If you find that the defendant believed Jane Doe was age 18 or older and if
you find that belief was reasonable, he did not have the specific intent or mental
state required for [oral copulation with a person under age 18, sodomy with a person
under age 18, furnishing a controlled substance to a minor]."

During deliberations, the jury sent the trial court the following inquiry:

"[1.] If, hypothetically, the defendant, being ignorant of the law, believes that a minor
can give her consent, must the defendent [sic] be found not guilty of a charge if . . .
he reasonably and actually believes that the victim is 17 years of age and consents
to the intercourse; in spite of the fact that she does not and cannot give consent? . . .
"[2.] Does the reasonable and actual belief of the defendent [sic] fall under the
admonition in Instruction 3406 concerning the defendent's [sic] intent or mental
state?"

The trial court discussed a response with counsel. During the discussion, the trial
court stated that from the beginning the defense was that all of the sexual acts were
in fact consensual; the defense did not rely on mistaken belief. Defense counsel
disputed that.

The trial court gave the following response to the jury's inquiry:

"1. Rape by force requires that the People prove, among other elements, that the
woman did not consent to the intercourse, as opposed to `could not' legally consent
based on her age. Age is not an element of rape by force. The People have the
burden of proving beyond a reasonable doubt that the defendant did not actually and
reasonably believe that the woman consented. Please carefully review Instruction
1000 in its entirety. [¶] . . .
"2. Instruction 3406 relates to the defendant's reasonable and actual belief about
Jane Doe's age only as to the following crimes: oral copulation with a person under
the age of 18 (as a lesser crime of oral copulation by force or fear); sodomy with a
person under the age of 18 (as a lesser crime of sodomy by force or fear); and
furnishing a controlled substance to a minor. . . ."

Here the trial court properly instructed the jury on the Mayberry defense both prior to
and during deliberations. The trial court's discussion with defense counsel as to
whether Higueros was relying on the defense is irrelevant.

IV
Higueros contends his convictions on counts 29 and 30, human trafficking of a
minor, must be reversed for failure to instruct sua sponte on the lesser-included
offense of contributing to the delinquency of a minor.
Section 236.1, subdivision (c) provides in part: "A person who causes, induces, or
persuades, or attempts to cause, induce, or persuade, a person who is a minor at
the time of commission of the offense to engage in a commercial sex act, with the
intent to effect or maintain a violation of Section . . . 311.1 . . . is guilty of human
trafficking."

Section 311.1 involves production or distribution of obscene matter knowing the


matter showed a person under age 18 participating in or simulating sexual conduct.

Section 272, subdivision (a)(1) provides in part: "Every person who commits any act
. . . which . . . causes or tends to cause or encourage any person under the age of
18 years to come within the provisions of Section 300 . . . of the Welfare and
Institutions Code . . . is guilty of a misdemeanor. . . ."

Welfare and Institutions Code section 300, subdivision (b)(2) provides that a child is
subject to the jurisdiction of the juvenile court whose parent or guardian failed to or
is unable to protect the child from being commercially sexually exploited.

There are two tests for determining whether an uncharged offense is necessarily
included in the charged offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Under the "elements test," the statutory elements of the greater offense include all of
the statutory elements of the lesser offense. (Ibid.) Under the "accusatory pleading
test," the facts alleged in the accusatory pleading include all of the elements of the
lesser offense. (Id. at pp. 1227-1228.)

Contributing to the delinquency of a minor is not a lesser included offense of human


trafficking. Human trafficking does not include the element of proving the child
comes within Welfare and Institutions Code section 300. Thus it fails under the
"elements test." Nor did the accusatory pleadings in this case refer to a parent or
guardian's failure or inability to protect the child. Thus it fails under the "accusatory
pleading test."

The trial court did not err in failing to instruct sua sponte on contributing to the
delinquency of a minor.

V
Higueros contends his convictions for human trafficking (counts 29 and 30), forcible
rape (counts 2-7), and forcible oral copulation (counts 14-18) are not supported by
substantial evidence.

In reviewing the sufficiency of the evidence, we view the evidence in a light most
favorable to the judgment. (People v. Johnson, supra, 26 Cal.3d 557, 578.) We
discard evidence that does not support the judgment as having been rejected by the
trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304,
1316.) We have no power on appeal to reweigh the evidence or judge the credibility
of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if
we determine that any rational trier of fact could find the elements of the crime
beyond a reasonable doubt. (Johnson, at p. 578.)

(a) Human trafficking


Higueros argues there is no substantial evidence he made sex videos with Jane with
the intent to use them commercially.

Count 29 alleged that Higueros committed the offense of human trafficking on July
28, 2014. That was the date he paid Brooks so that he could have sex with Jane. He
took a video of the sex acts on his cell phone and sent a still photograph from the
video to Brooks. Thus there is substantial evidence from which a reasonable trier of
fact could determine that Higueros induced Jane to engage in a commercial sex act
with the intent to distribute a photograph of obscene matter in violation of section
311.1.

Moreover, Higueros later told Jane that he wanted to use videos of them having sex
to make money. A trier of fact could reasonably conclude that he took the video on
July 28, 2014, for the same purpose.

Count 30 alleges that between July 30 and August 28, 2014, Higueros committed
the offense of human trafficking. Jane testified that he made other sex videos with
her to broadcast on the Internet. She testified that "[h]e wanted to broadcast it for
money."

Higueros argues that there is no evidence he ever followed through with his plan to
commercially exploit the videos. But section 236.1, subdivision (c) does not require a
completed commercial transaction. It is violated by an "attempt" to induce a minor to
engage in a commercial sex act.

(b) Forcible rape and forcible oral copulation


These counts are based on the "hate rape" of August 12, 2014, and sexual acts that
occurred thereafter. The People's theory was that the hate rape constituted a
demarcation line. The sex acts occurring thereafter were not consensual. Higueros
contends there is no substantial evidence that the acts were not consensual.

Jane testified that after the hate rape they continued to have both vaginal and oral
sex, two to five times a day. She felt she could not say no. She testified, "There were
times when I had said no to him, and it happened anyways." Higueros would tell her
"Daddy gets what Daddy wants." She had bruises on her arms from him holding her
down during sex. When Jane threatened to leave, Higueros threatened to kill her.
He told her he killed his father. Jane's injuries disclosed during forensic physical
examinations were consistent with forcible sex. Finally, other women testified that
Higueros raped them.

There is more than ample evidence to support Higueros's convictions for forcible
rape and forcible oral copulation.

VI
Higueros contends the trial court erred in refusing to permit a full investigation into
juror misconduct.

The jury rendered its verdict on March 4, 2016. Juror No. 11 sent a letter to the court
postmarked March 15, 2016, stating she had not wanted to vote guilty on the rape
counts. Defense counsel and the prosecutor were given copies of the letter. Defense
counsel made a motion asking the court to disclose identifying information for the
other jurors so that he could prepare a motion for a new trial. The trial court denied
the motion for juror information.

A juror's identifying information in a criminal case is sealed. (Code Civ. Proc., § 237,
subd. (a)(2).) After the verdict, however, the defendant may petition the court for
access to the information upon a showing of good cause. (Id., § 206, subd. (g).)
Good cause exists where the defendant makes a sufficient showing to support a
reasonable belief that jury misconduct occurred and that further investigation is
necessary for a motion for a new trial. (People v. Carrasco (2008) 163 Cal.App.4th
978, 990.) Denial of the motion for juror information is reviewed for abuse of
discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)

Much of Juror No. 11's letter describes the effect of statements or events on the
mental process of a juror. Such evidence is inadmissible to impeach the verdict.
(Evid. Code, § 1150, subd. (a).) Other matters referred to in the letter do not show
misconduct.

Juror No. 11 stated that "[i]mmediately upon entering the deliberation phase," one
juror "fervently" proclaimed her belief that Higueros is guilty. Stating an emphatic
opinion on the defendant's guilt early in the deliberations, although inadvisable, is
not misconduct. (People v. Bradford (1997) 15 Cal.4th 1229, 1352.)

Juror No. 11 complained other jurors refused to allow a discussion about whether
Jane was "responsible for her own decisions." But Higueros cites no authority for the
proposition that the broad topic of whether Jane was "responsible for her own
decisions" was an issue in the case. It is not misconduct for the jury to refuse to
consider irrelevant matters.
Juror No. 11 complained that two male jurors demanded that she repeatedly watch
one of Jane and Higueros's sex videos. But the videos were in evidence. Insisting
that a juror review the evidence multiple times, no matter how distasteful, is not
misconduct.

Juror No. 11 complained that after she argued the evidence did not support a guilty
verdict, one juror replied, "He (Mr. Higueros) is dangerous and who knows what he
will do if we release him." Such a statement is not enough to require an
investigation. We are certain that a similar thought crosses the mind of every juror
who sits on a case in which multiple serious or violent felonies are charged.

In People v. Riel (2000) 22 Cal.4th 1153, the defendant moved for a new trial of the
penalty phase of a death penalty case on the grounds of juror misconduct. A juror
was alleged to have said, "`"If we give him the death penalty, the judge will just
commute it to life in prison anyway."'" (Id. at p. 1218.) In affirming the trial court's
denial of a new trial, our Supreme Court stated: "Not all comments by all jurors at all
times will be logical, or even rational, or, strictly speaking, correct. But such
comments cannot impeach a unanimous verdict; a jury verdict is not so fragile. `The
introduction of much of what might strictly be labeled "extraneous law" cannot be
deemed misconduct. The jury system is an institution that is legally fundamental but
also fundamentally human. Jurors bring to their deliberations knowledge and beliefs
about general matters of law and fact that find their source in everyday life and
experience. That they do so is one of the strengths of the jury system. It is also one
of its weaknesses: it has the potential to undermine determinations that should be
made exclusively on the evidence introduced by the parties and the instructions
given by the court. Such a weakness, however, must be tolerated. "[I]t is an
impossible standard to require . . . [the jury] to be a laboratory, completely sterilized
and freed from any external factors." [Citation.] Moreover, under that "standard" few
verdicts would be proof against challenge.'" (Id. at p. 1219.)

Like the comment in Riel, the comment here is not sufficient to show prejudicial
misconduct has occurred.

Here, in addition to finding that Juror No. 11's letter failed to show good cause for
disclosing juror information, the trial court also considered that the jury deliberated
for a week and produced both guilty and not guilty verdicts. Higueros argues the
court erred in considering the length and result of jury deliberations. He claims the
only question is whether he showed a prima facie case for disclosure of juror
information. But Higueros cites no authority that compels the trial court to ignore
reality.

The judgment is affirmed.

YEGAN, J. and TANGEMAN, J., concurs.


[1] All statutory references are to the Penal Code unless otherwise stated.

[2] All further statutory references are to the Evidence Code unless otherwise stated.

[3] All statutory references in section I are to the Evidence Code.


COMMONWEALTH OF PENNSYLVANIA,
v.
SHARIF JONES, Appellant.
No. 1746 EDA 2017.

Superior Court of Pennsylvania.

Filed May 4, 2018.

Gregory Joseph Pagano, Gregory J. Pagano, P.C., for Appellant, Sharif Jones.

Lawrence Jonathan Goode, Katelyn Lori Mays, Philadelphia District Attorney's Office, for
Appellee, Commonwealth of Pennsylvania.

Appeal from the Judgment of Sentence January 13, 2017, in the Court of Common Pleas of
Philadelphia County Criminal Division at No(s). CP-51-CR-0012791-2015.

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

NON-PRECEDENTIAL DECISION — SEE SUPERIOR


COURT I.O.P. 65.37
MEMORANDUM BY BOWES, J.

Sharif Jones appeals from the judgment of sentence of four to fifteen years imprisonment
followed by twenty years probation, which was imposed following his convictions of rape of
a child, involuntary deviate sexual intercourse ("IDSI") with a child, unlawful contact with a
minor, corruption of a minor, and indecent assault of a child. After careful review, we affirm.

The victim testified to the following at trial. Late on the night of April 29, 2014, while her
mother was in the shower and without her knowledge, twelve-year-old D.J. went to get
snacks at a convenience store located at 69th and Ogontz Streets in the West Oak Lane
neighborhood of Philadelphia, Pennsylvania. When D.J. entered the store, she was
approached by a man she did not know and had never spoken to previously, later identified
as Appellant. Appellant asked D.J. what her name was and her age. She identified herself
and told him that she was "about to be thirteen." N.T. Trial, 10/3/17, at 16. Appellant
questioned whether it was late for her to be out, and asked if anyone was home. D.J. told
him that her mother was waiting for her at home.

D.J. testified that at some point, Appellant "was touching on me" and "was grabbing my
butt." Id. at 28. She felt uncomfortable and scared, and put her hands up between her and
Appellant's chest. Id. at 19. He forcibly grabbed her hand and placed it on his groin. The
total interaction lasted approximately five minutes. Appellant wrote a name and phone
number on a piece of paper, gave it to her, and left the store.
When D.J. went outside, he was waiting for her. He wrapped his arm around her shoulder
and they started walking. They stopped at a white house with a garden area, and Appellant
put his hand down her shirt and touched her breasts underneath her clothes. Then he led
her to steps on the side of the house leading to a basement, where he pushed her to her
knees, held her head down, and forced her to perform oral sex.

After that, they continued to walk. Appellant kept his arm tightly draped around her
shoulders. They walked for many blocks, and stopped in an alley with a balcony above.
Appellant pushed her face against the wall, pulled down her pants, and tried to penetrate
her wearing a condom. When he was unsuccessful, he removed the condom and
penetrated her vaginally. Then he forced her to her knees, put his penis in her mouth, and
ejaculated. He told her not to swallow it so she would not get pregnant. Id. at 33. Appellant
left, and D.J. finally found a street that she recognized and made her way home. The police
were at her house because her mother had called them to report her missing.

When the victim's mother first asked her where she had been, she said she had just been
on a walk. Based on her daughter's disheveled appearance, her mother asked her again.
D.J. told her that she had been raped. Id. at 63. D.J. described to police how she was
abducted at the store. When the police asked her to speak more clearly, she began crying
stating she could not, because if she swallowed "that," she could get pregnant. Id. at 71.

The Commonwealth played the surveillance tape from the corner store during D.J.'s
testimony. Exhibit C-1. D.J. identified Appellant and pointed to herself as she entered the
store. She testified that the fourteen minutes of video accurately depicted what occurred
between herself and Appellant while they were in the store.

The evidence revealed that the police transported D.J. to the hospital for a physical
examination and a psychological evaluation. The report from the physical examination was
marked for identification as Exhibit C-5, and it noted flecks of dirt and gravel in the victim's
pubic area. Property receipts for the rape kit and the victim's clothes were marked as
Exhibits C-6 and C-7 respectively, and admitted by stipulation. In addition, it was stipulated
that the rape kit and saliva sample tested positive for sperm, which matched a prior sample
of Appellant's DNA, and the reports were marked as exhibits and admitted. D.J.'s date of
birth was the subject of a stipulation, and confirmed that she was twelve years old at the
time of the sexual assaults.

The eighteen-year-old Appellant testified at trial. He denied that he touched the victim in the
store and he testified that she was the aggressor. He also stated that he did not know her
age. According to Appellant, the only sexual act was oral sex, it was consensual, and it
occurred on the outside steps of his home with his mother inside.

Following a nonjury trial, Appellant was convicted on all but one count. [1] The court imposed
a sentence of four to fifteen years imprisonment followed by twenty years probation.
Appellant filed a timely post-sentence motion for a new trial alleging that the verdict was
against the weight of the evidence. He claimed that the video surveillance footage
contradicted crucial factual allegations made by the complainant and conclusively proved
that she seduced him in the store and lied to police and to the court. In addition, he alleged
that her testimony was so inconsistent as to be unbelievable as to render the verdict
unreliable and shock the conscience. The trial court denied Appellant's motion, finding that
Appellant's sufficiency argument was premised on the twelve-year-old victim's consent to
the sexual activity, and that by law, a child victim cannot consent to sexual contact.
Moreover, the court found that since the victim's testimony was corroborated by both
physical evidence and Appellant's own testimony, the evidence was not patently unreliable.
Finally, the trial court concluded that the verdict was not so contrary to the evidence as to
shock its sense of justice.

Appellant filed a timely appeal. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and he complied. The trial court
authored its Pa.R.A.P. 1925(a) opinion.

Appellant's sole issue on appeal is:

Was the verdict against the weight of the evidence because there is video surveillance
footage which contradicts the complainant regarding crucial factual allegations and which
conclusively proves that the complainant lied to the police and lied to this court under oath
about what occurred and how she first made contact with Appellant thereby rendering the
complainant's testimony so inconsistent, contradictory, and not believable such that the
verdict is unreliable, shocks the conscience and is unjust?

Appellant's brief at 14.

Succinctly stated, Appellant's claim is that the trial court abused its discretion when it found
that the verdict was not against the weight of the evidence. A weight of the evidence claim
"concedes that sufficient evidence exists to sustain the verdict but questions which
evidence is to be believed." Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017).
In ruling on such a motion, the trial court need not view the evidence in the light most
favorable to the verdict winner, but "may instead use its discretion in concluding whether the
verdict was against the weight of the evidence." Miller, supra. Furthermore:

A new trial should not be granted because of a mere conflict in testimony or because the
judge on the same facts would have arrived at a different conclusion. Rather, the role of the
trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of
greater weight to ignore them or to give them equal weight with all the facts is to deny
justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quotation marks and internal
citations omitted). In order for a trial court to find that a verdict is against the weight of the
evidence, the proof must be "so tenuous, vague and uncertain that the verdict shocks the
conscience of the court." Commonwealth v. Sullivan,820 A.2d 795, 806 (Pa.Super. 2003).

On appeal, when we conduct a weight of the evidence review, "we do not actually examine
the underlying question; instead, we examine the trial court's exercise in resolving the
challenge." Commonwealth v. Leatherby, 116 A.3d 73, 92 (Pa.Super. 2015). Since the trial
judge heard and saw the evidence presented, we give the "gravest consideration to the
findings and reasons advanced by the trial judge." Clay, supra at 1055. We will find an
abuse of discretion only where "the judgment is manifestly unreasonable or where the law is
not applied or where the record shows that the action is a result of partiality, prejudice, bias,
or ill-will." Id. (citing Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000)). For this reason,
"[o]ne of the least assailable reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of the evidence." Id.

Appellant argues that the verdict is against the weight of the evidence because the
videotape evidence reveals that the "complainant irrefutably lied." Appellant's brief at 18. He
maintains further that the twelve-year-old victim initiated sex with him, and that her original
decision not to tell her mother about the incident changed only after the police confronted
her about her disappearance. Id. The video surveillance tapes, he contends, contradict the
victim's testimony because they show that she approached him. In addition, according to
Appellant, the video does not depict him touching her inappropriately, and certainly, it did
not show him placing her hand on his penis. Id.

The trial court found that the minor victim's testimony was corroborated by the video
surveillance tape:

D.J's body language in the footage shows a girl who is keeping her head down and avoiding
eye contact as she answers defendant's questions. See Trial Exhibit C-1. The footage also
corroborates D.J.'s testimony that defendant placed his hand on her buttocks. Id. Contrary
to defendant's claim, the footage does not contradict D.J.'s additional testimony that
defendant placed her hand on his groin.

Trial Court Opinion, 8/25/17 at 4 (citations omitted). Moreover, the trial court rejected
Appellant's argument that the twelve-year-old victim initiated the sexual contact as legally
irrelevant because, by law, she could not consent. The court found that whether or not D.J.
told her mother immediately upon returning home was irrelevant as the physical evidence
obtained from her medical examination, as well as the video surveillance, corroborated her
testimony. Based on its assessment of the evidence, the trial judge determined that the
verdict did not shock its sense of justice.

The trial court applied the proper legal standard in reviewing the weight of the evidence, and
we find no abuse of discretion.

Judgment of sentence affirmed.

[1] Appellant was acquitted of unlawful restraint-serious bodily injury.


018-Ohio-1799

STATE OF OHIO Plaintiff-Appellee,


v.
RANDY VENTO Defendant-Appellant.
No. 2017 AP 03 0006.

Court of Appeals of Ohio, Fifth District, Tuscarawas County.

May 7, 2018.

Appeal from the Court of Appeals, Case No. 2016 CR 06 0167.

Affirmed.

RYAN STYER, Prosecuting Attorney, MICHAEL ERNEST, Assistant Prosecuting


Attorney, 125 East High Avenue, New Philadelphia, OH 44663, For Plaintiff-
Appellee.

GEORGE URBAN, 116 Cleveland Aveue NW, Suite 808, Canton, OH 44702, For
Defendant-Appellant.

W. Scott Gwin, P.J., Craig R. Baldwin, J., Earle E. Wise, Jr., J.

OPINION
EARLE WISE, J.

{¶ 1} Defendant-Appellant Randy Vento appeals the February 24, 2017 judgment of


conviction and sentence of the Court of Common Pleas of Tuscarawas County,
Ohio. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY


{¶ 2} On June 2, 2016, Vento was seen by residents and law enforcement riding an
orange bicycle, first in Dover, Ohio where he had contact with a Dover City police
officer, and then in Mineral City, Ohio. In Mineral City, a resident found Vento lying
on a picnic table in the city park. Later that afternoon, X.F, an 11 year-old Mineral
City resident was walking home from a friend's house when he encountered Vento in
the park near a wooded path.

{¶ 3} Vento told X.F he was lost and asked for help. X.F refused. Vento stood up and
started toward X.F and X.F ran. Vento caught X.F and dragged him into the woods.
Vento removed his black hoodie and tied it around X.F's head so he could not see,
removed X.F's clothing, and smashed his cell phone. Vento proceeded to rape and
brutally beat X.F.

{¶ 4} Meanwhile, X.F's mother had become concerned when X.F did not answer his
phone and went looking for him with neighbors and other family members. X.F heard
them calling for him, but each time he tried to call out, Vento shoved a stick in X.F's
mouth to silence him. At some point Vento fled and X.F passed out.

{¶ 5} Upon regaining consciousness, X.F crawled out of the woods. He was


discovered by a neighbor naked, severely beaten and bloody, and with Vento's
sweatshirt still tied around his neck. Asked who had done this to him, X.F stated a
black man wearing a black hoodie and green pants had grabbed him off the street. A
reverse 911 call was issued to the Mineral City Area asking residents to notify law
enforcement if they saw a man matching the description given by X.F.

{¶ 6} Within minutes of issuing the reverse 911 call, a resident returned the call and
stated a man matching the description had run out of the woods near the village
park, and ran into her car in his haste. When deputies responded to the location,
they found Vento shirtless and wearing green pants. He was taken into custody.

{¶ 7} Tuscarawas sheriff's deputies searched of the area where X.F was found. Near
the trailhead, an orange bicycle was found along with several personal items
including hospital records bearing Vento's name and date of birth. Further into the
woods they discovered a tree that appeared to have blood on it as well as some
clothing which appeared to be bloody.

{¶ 8} X.F was transported by ambulance to Akron Children's hospital with life-


threatening injuries. He underwent multiple surgeries and tests during a 6-day stay.
X.F advised medical personnel that Vento had raped him and therefore a rape kit
was also collected. X.F's injuries included multiple abrasions and contusions to his
face and body, multiple skull fractures, two fractured fingers, and deep lacerations to
his face and mouth.

{¶ 9} Later laboratory testing indicated that blood found on Vento's back belonged to
X.F, and X.F's DNA was present in Vento's underwear. Testing on the hoodie
recovered from around X.F's neck contained DNA from both X.F and Vento.
Additionally, seminal fluid was present on the anal and perianal swabs from X.F's
rape kit.

{¶ 10} In August 2016, the Tuscarawas County Grand Jury indicted Vento on one
count of kidnapping with a sexual motivation specification, two counts of rape, one
count of attempted murder, one count of felonious assault, and one count of
tampering with evidence.
{¶ 11} The matter proceeded to a five-day jury on February 13, 2017, at the
conclusion of which Vento was found guilty as charged. At a later sentencing
hearing, after merging allied offenses as agreed to by the parties, the trial court
sentenced Vento to an aggregate term of life without the possibility of parole. He
was further classified as a Tier III sex offender.

{¶ 12} Vento then filed this appeal, and the matter is now before this court for
consideration. He raises two assignments of error:

I
{¶ 13} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT'S
SUBSTANTIAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW BY
ADVISING THE VENIRE OF THE MINIMUM AND MAXIMUM PENALTIES OF
EACH OFFENSE IN THE INDICTMENT PRIOR TO BEGINNING APPELLANT'S
TRIAL."

II
{¶ 14} "APPELLANT WAS DENIED A FAIR TRIAL DUE TO A VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN
THAT COUNSEL FAILED TO NOTICE THAT A STATE'S WITNESS HAD NOT
BEEN DULY SWORN IN, FAILED TO MAKE TIMELY OBJECTION THERETO,
AND WAIVED APPELLANT'S RIGHT TO OBJECT."

I
{¶ 15} In his first assignment of error, Vento argues the trial court committed plain
error when during jury selection, when it advised the venire of the possible penalties
for each offense. While we agree that the trial court committed error, we find the
outcome would not have been any different but for the trial court's comments.

{¶ 16} Vento did not object to the trial court's comments. An error not raised in the
trial court must be plain error for an appellate court to reverse. State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). In order to prevail under a
plain error analysis, Vento bears the burden of demonstrating that the outcome of
the trial clearly would have been different but for the error. Long. Notice of plain error
"is to be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

{¶ 17} Before the attorneys questioned any of the potential jurors, the trial court
discussed with the venire the charges against Vento, the specifications, and the
range of penalties for each offense. T. 40-43. The court then advised the venire at T
44:

Now, ladies and gentlemen, I am telling you what these potential penalties are not
because I'm suggesting that Mr. Vento is guilty of those crimes, but to give you an
appreciation for the significance of your involvement in this trial and the implication
of verdicts of guilty should the jury impaneled render them. So I don't want you to
think that there's no prison term or that it's discretionary with the judge. You need to
know what those sentences are so that you can approach this with the level of
seriousness and commitment to justice that I know you will if you're selected.

{¶ 18} The subject of punishment is not a proper jury consideration. R.C


2945.11, State v. Rigor, 8th Cuyahoga Dist. No. 76201, 2000 WL 1867401, (Dec.
14, 2000) *3. Nonetheless, we cannot say a manifest injustice occurred here as the
evidence in this matter was exceptionally strong. Vento was seen by residents in the
area of the crimes both before and after his attack on X.F. T. 364-367, 396-397.
Forensic evidence, including the rape kit results, DNA testing on the hoodie Vento
tied around X.F's head, Vento's underwear, and the fact that Vento had X.F's blood
on his back inextricably tied Vento to the crimes. T. 567-568, 610-612, 564-566.
Additionally, before the jury retired to deliberate, the trial court properly instructed
the jury pursuant to R.C. 2945.11 that it could not consider the issue of punishment.
T. 715. A jury is presumed to follow the instructions of the trial court. Pang v. Minch,
53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), paragraph four of the syllabus.

{¶ 19} We therefore conclude that while it is error to inform a venire of the potential
penalties a defendant may face, in this instance, we find no plain error.

II
{¶ 20} In his second assignment of error, appellant argues he was denied effective
assistance of counsel. Specifically, appellant argues his counsel failed to object
when the trial court did not administer an oath or affirmation to the child victim before
accepting testimony from the victim. We disagree.

{¶ 21} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and until counsel's
performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel's performance. (State
v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.
Washington[1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability
that, were it not for counsel's errors, the result of the trial would have been different.

{¶ 22} Evid.R. 603 provides "* * *[b]efore testifying, every witness shall be required
to declare that the witness will testify truthfully, by oath or affirmation administered in
a form calculated to awaken the witness' conscience and impress the witness' mind
with the duty to do so." The staff notes for Evid.R. 603 indicate the rule affords
flexibility when dealing with a child witness.

{¶ 23} On the day he testified in this matter, X.F was 11 years-old. Before X.F
testified, the trial court inquired of him:

***
The Court: And [X.F], I understand you are how old today?
[X.F]: 11 sir.
The Court: You're going to be 12 soon?
[X.F]: Yes, sir.
The Court: All right. And you understand what it means to tell the truth.
X.F: Yes sir.
The Court: All right. And is it your promise today that you're going to tell the truth and
answer the questions truthfully?
X.F: Yes sir.
The Court: Thank you.

{¶ 24} There is no particular formula required for administration of an oath. Evid.R.


603, staff notes. We find nothing objectionable in the trial court's administration of
the oath to X.F. Because the oath was not objectionable, we conclude counsel was
not ineffective for failing to object thereto.

{¶ 25} The second assignment of error is overruled.


ALLEN,
v.
THE STATE.
A18A0480.

Court of Appeals of Georgia, Second Division.

Decided: May 3, 2018.

Viveca Burns Famber, for Appellant.

Tracy Graham Lawson, for Appellee.

Elizabeth Conard Rosenwasser, for Appellee.

MILLER, P. J., ANDREWS, J., and SENIOR APPELLATE JUDGE BEASLEY.

MILLER, Presiding Judge.

A jury convicted Laverne Lee Allen[1] of incest, rape, child molestation, and
aggravated child molestation, stemming from his sexual abuse of two of his children.
Allen now appeals from the trial court's denial of his motion for new trial, challenging
his convictions on grounds of (1) insufficient evidence; (2) ineffective assistance of
counsel; (3) admission of impermissible character evidence; (4) prejudicial
admonishments from the courtroom deputy; and (5) the improper limitation of
examination of a witness.

We conclude that the evidence was sufficient to support the jury's verdict; trial
counsel's performance was reasonable; the trial court committed no error in its
admission of testimony; the courtroom deputy's instructions to Allen did not result in
prejudice; and any error on the part of the trial court in limiting the witness
examination was harmless. Therefore, we affirm.

Viewed in the light most favorable to the jury's verdict,[2] the record shows that Allen
and Rayciayah Lindsey are the parents of four children, including a daughter, T.A.,
and a son, L.A. When T.A. was around five or six years old, Allen bit her vagina over
her clothing, and she reported this to her maternal aunt. The aunt relayed this to
Rayciayah, who demanded that Allen leave the home. Allen moved away from the
home for a while, but later returned.

Then, when T.A. was eight years old, Allen began placing his hands under her
clothing and touching her buttocks and vagina. From that time, until T.A. was fifteen
years old, Allen had vaginal and anal intercourse with T.A. "so many times that [she]
lost count. T.A. did not want Allen to have sex with her, and the acts hurt each time,
but because she was scared of Allen, she "took [her] clothes off" "on [her] own"
when Allen wanted to have intercourse with her. Allen threatened T.A. that if she told
anyone about what was occurring, he would hurt her, L.A., and Rayciayah.

On one occasion, when the son, L.A., was six years old, he entered his parents'
bedroom and saw T.A. lying on her back, with Allen positioned between her legs,
with his underwear around his knees. L.A. observed Allen go "up and down" on T.A.
T.A. was screaming for Allen to get off of her, and when L.A. attempted to tell Allen
to do so, Allen told L.A. to leave the room and later cautioned him that if he told
anyone about what he had seen, he would hurt him. T.A. recounted that Allen also
hit L.A. after this incident.

Starting from when L.A. was nine years old, and continuing until he was eleven,
Allen had anal sex with him nine times. During the acts, L.A. told Allen to "stop," but
Allen refused, sometimes pushing L.A.'s head into a pillow when he yelled. L.A.
made no outcry to his mother because Allen warned him that if he told anyone, he
would hurt L.A. or "put [him] in the ground . . . six feet under the ground." L.A.
believed that Allen would act on these threats because he had previously seen Allen
with a gun. When L.A. later began living with his maternal aunt, he told her about the
abuse.

Between 2012 and 2013, while Allen was not living in the family home, Rayciayah
began asking T.A. whether anyone had been touching her. After initially denying that
she had been having sex, T.A. implicated her male cousin, rather than Allen, in an
attempt to protect Allen. T.A. later admitted that Allen had been having sex with her.
The following year, when Allen returned to the home, T.A. told him that a "white
man" had sexual contact with her, referring to her friend's father. Allen called the
police, and in T.A.'s statement to the officer, given while in Allen's presence, she
maintained that a "white man" had sexually assaulted her. Hours later, police
returned to the home after they received another call, and T.A. told the officer that
her earlier account was untrue, that Allen had been raping her, and that she could
not guess the number of times it had occurred. Allen later instructed L.A. to tell T.A.
to retract this latter statement to the police.

A Clayton County grand jury indicted Allen on 18 charges, specifically, six counts of
child molestation (OCGA § 16-6-4 (a)), five counts of incest (OCGA § 16-6-22
(a)),[3] three counts of aggravated child molestation (OCGA § 16-6-4 (c)), two counts
of rape (OCGA § 16-6-1 (a)), and one count of influencing a witness (OCGA § 16-
10-93 (b) (1)). Allen's first trial resulted in a mistrial after defense counsel and the
prosecutor learned that T.A. received a medical examination after she made the
allegations, the results of which had not been in the State's case file. Allen was re-
tried the following year and was convicted of the influencing-a-witness count.[4] The
jury was hung on the remaining counts of the indictment, and the trial court declared
a mistrial as to those counts.
In 2016, when Allen was tried a third time, the jury convicted him on the remaining
counts of the indictment, and he received a sentence of life imprisonment. Allen
moved for a new trial, and, after a hearing, the trial court denied the motion. This
appeal followed.

1. Allen contends that there was insufficient evidence to support the jury's verdict,
given that T.A. implicated different persons as her abuser, and because the State
presented no DNA evidence. This argument is meritless.

"When reviewing a defendant's challenge to the sufficiency of the evidence, we view


the evidence in the light most favorable to the jury's verdict, and the defendant no
longer enjoys the presumption of innocence." (Citations omitted.) Lancaster v.
State, 291 Ga. App. 347, 348 (662 SE2d 181) (2008). "We do not . . . re-weigh
testimony, determine witness credibility, or address assertions of conflicting
evidence; our role is to determine whether the evidence presented is sufficient for a
rational trier of fact to find guilt beyond a reasonable doubt." (Citation omitted.) Hall
v. State, 294 Ga. App. 274, 275 (668 SE2d 880) (2008).

The victims testified to the incidents as explicated above, and, even in the absence
of DNA evidence, this testimony was sufficient for the jury to convict Allen beyond a
reasonable doubt of every charge in the indictment.[5] Tinson v. State, 337 Ga. App.
83, 85-86 (1) (785 SE2d 914) (2016) (corroboration of a sexual crime victim's
testimony is not required); Mangham v. State, 291 Ga. App. 696, 697 (662 SE2d
789) (2008) (testimony sufficient to support guilty verdict on aggravated child
molestation although uncorroborated by medical evidence).

Further, the jury viewed the forensic interviews of the victims, in which they both
indicated that Allen had committed the acts. T.A. testified that she did not implicate
her father at first because she was "covering up" for him and was scared of him. L.A.
also explained that his father had threatened to hurt or kill him if he made any
outcry. The forensic interviewer, who was accepted without objection as an expert in
forensic interviewing and child advocacy, testified that she had concluded that
neither victim had been coached, and that threats like those Allen made to the
victims commonly lead to a delay in disclosure of abuse.

"In any event, it is the jury's role to resolve conflicts in the evidence and determine
the credibility of witnesses, and the presence of such conflicts does not render the
evidence insufficient." (Citation and footnote omitted.) Malone v. State, 277 Ga. App.
694, 696 (1) (627 SE2d 378) (2006); Crane v. State, 291 Ga. App. 414, 415-416
(662 SE2d 225) (2008) (evidence sufficient although victim initially offered conflicting
accounts regarding whether appellant molested her). Here, it is clear that the jury
resolved any conflicts in the evidence adversely to Allen, and we will not disturb the
jury's findings in this regard. Accordingly, the evidence authorized the jury to find
Allen guilty of the offenses for which he was convicted.
2. As his second enumeration of error, Allen contends that reversal is warranted
because the verdicts were against the weight of the evidence and contrary to the
principles of justice and equity. Allen raised this issue before the trial court at the
hearing on the motion for new trial, but the trial court declined to exercise its
discretion to overturn the jury's verdict. We find no error.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may
grant a new trial if the verdict of the jury is "contrary to. . . the principles of justice
and equity," OCGA § 5-5-20, or if the verdict is "decidedly and strongly against the
weight of the evidence." OCGA § 5-5-21. When properly raised in a timely motion,
these grounds for a new trial—commonly known as the "general grounds"—require
the trial judge to exercise a "broad discretion to sit as a `thirteenth juror.'"

(Citation omitted.) Allen v. State, 296 Ga. 738, 741 (2) (770 SE2d 625) (2015).

However,
[w]hether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is
strongly against the evidence, is one that is solely in the discretion of the trial court,
and the appellate courts do not have the same discretion to order new trials. Thus,
even when an appellant asks this Court to review a trial court's refusal to grant a
new trial on the general grounds, this Court must review the case under the
standard set forth in Jackson v. Virginia, [supra], that is, if the evidence viewed in the
light most favorable to the prosecution, supports the verdict or verdicts.

(Citations omitted.) Id. Therefore, in light of our sufficiency analysis in Division 1, this
enumeration also provides no basis for reversal. Id. at 742 (2).

3. In two enumerations of error, Allen claims that he received ineffective assistance


of counsel. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show


that counsel's performance was deficient and that the deficient performance so
prejudiced the defendant that there is a reasonable likelihood that, but for counsel's
errors, the outcome of the trial would have been different. [See] Strickland v.
Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LEd2d 674) (1984). If an
appellant fails to meet his or her burden of proving either prong of the Strickland
test, the reviewing court does not have to examine the other prong. In reviewing the
trial court's decision, we accept the trial court's factual findings and credibility
determinations unless clearly erroneous, but we independently apply the legal
principles to the facts. Furthermore, there is a strong presumption that the
performance of counsel was within the wide range of reasonable professional
lawyering, and we cannot reach a contrary conclusion unless defendant successfully
rebuts the presumption by clear and convincing evidence. Judicial scrutiny of
counsel's performance must be highly deferential. (Citations and punctuation
omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). With this
standard in mind, we examine Allen's two arguments.

(a) First, Allen contends that trial counsel rendered ineffective assistance because
the clinical psychologist whom he used to offer expert testimony, Dr. Farrar, had
been disciplined by his professional governing authority. Allen fails to show that
counsel's performance was deficient, and thus, the trial court properly denied Allen's
motion for a new trial on these grounds.

As an initial matter, "[d]ecisions as to which witnesses to call are matters of trial


strategy and tactics that usually do not constitute ineffective assistance of counsel."
(Citation omitted.) Lord v. State, 259 Ga. App. 449, 451 (2) (577 SE2d 103) (2003).
And, counsel's "strategic decisions made after thorough investigation are virtually
unchallengeable. They provide no grounds for reversal unless such tactical
decisions are so patently unreasonable that no competent attorney would have
chosen them." (Citation and footnote omitted.) Pippins v. State, 263 Ga. App. 453,
458 (4) (a) (588 SE2d 278) (2003).

It is exceedingly clear from the record that counsel did not retain Dr. Farrar for want
of a thorough investigation. At the hearing on the motion for new trial, counsel
testified that Dr. Farrar had provided him with a report detailing problems he
perceived existed with the forensic interviews and he called Dr. Farrar to testify
regarding proper interviewing techniques with child sexual abuse victims. Counsel
explained, "like everybody, he had some weaknesses and he had some strengths."
Counsel testified that he knew that Dr. Farrar had received an ethical sanction, and
he also testified to the requisites Dr. Farrar satisfied for the reinstatement of his
professional license. Indeed, according to counsel, he anticipated that the State
would cross-examine Dr. Farrar on this issue in Allen's case.

Although counsel identified another psychologist whom he may have considered, he


testified that he ultimately chose Dr. Farrar because he was a good witness, he had
previously used him as an expert, Dr. Farrar had significant experience testifying in
court, and he did not wither under cross-examination. Counsel added, Dr. Farrar
"holds his ground. He's intelligent and he's pretty quick on his feet."

Defense counsel's strategy, therefore, was to minimize the disciplinary issue. During
direct examination, counsel preemptively questioned Dr. Farrar on the
circumstances leading to the license suspension. Dr. Farrar testified that in his 32-
year career, he had been qualified as an expert more than 600 times, and that
although he ultimately lost his appeal of the licensing board's disciplinary decision
against him, he was once again in good standing with the board. Dr. Farrar then
opined at length as to various ways in which he believed the victim interviews had
been conducted improperly, including his findings of interviewer bias. "Under these
circumstances, the trial court was authorized to conclude that calling the
psychologist as a defense witness fell within the broad spectrum of reasonable trial
strategy and that no deficient performance was shown." Adem v. State, 300 Ga.
App. 708, 714 (3) (686 SE2d 339) (2009).

(b) Next, Allen argues that his trial counsel was ineffective in failing to file a plea in
bar based on double jeopardy, after Allen's first trial ended in a mistrial due to the
State's failure to provide Allen with the report from T.A.'s physical examination. We
disagree.

[P]rosecutorial misconduct will support a plea in bar based on double jeopardy only
if the prosecutor intended to subvert the defendant's double jeopardy rights by
aborting the trial and securing an opportunity to retry the case. In the context of a
granted motion for mistrial, this means the prosecutor intended to goad or provoke
the defendant into moving for a mistrial.

(Citations omitted.) State v. D'Auria, 229 Ga. App. 34, 35 (492 SE2d 918) (1997).

During Allen's first trial, the detective investigating the case testified that she had not
scheduled any medical examinations on the victims. But after being confronted with
a transcript reflecting her testimony from the preliminary hearing, she confirmed that
an examination on T.A. had been scheduled. During a recess, the prosecutor
contacted the sexual assault center and discovered that an examination on T.A. had
in fact been completed. He provided defense counsel with a copy of the
corresponding report, explaining to the trial court that the State's file had not shown
that any examination had been conducted, and he had no knowledge to that effect
either. Allen moved for a mistrial, and the trial court granted the request, although
the trial court found no misconduct on the part of the State.

It does not appear that Allen is arguing that the prosecuting attorney had an
improper intent; rather, Allen claims that the detective had a pattern of misbehavior,
which must be "imputed to the State as knowledge" because it would be against the
principles of due process if the prosecutor were allowed to disclaim responsibility.

First, the Supreme Court of Georgia rejected an analogous imputation argument


in State v. Traylor, 281 Ga. 730, 732-733 (642 SE2d 700) (2007). In Traylor, the
Supreme Court held that "[f]or double jeopardy to apply, it is not sufficient that an
intent to instigate a mistrial was possessed only by an agent of the State whose
scope of employment and authority differs from the prosecutor." Id. at 733. Because
the detective was not "the person in control of the prosecution," id., her intent
regarding the medical examination is of no consequence. Further, even assuming
that the detective's conduct could be imputed to the prosecutor in this case, the
record does not evince that she intended to goad Allen into moving for a mistrial,
and Allen identifies no indicia of such an intent. At the hearing on the motion for new
trial, trial counsel testified that he had examined the possibility of filing a plea in bar
but did not have any evidence that the prosecutor had engaged in misconduct and
thus did not believe the motion would have been meritorious.
Given the evidence here, there is no basis to impute the detective's supposed
misconduct to the prosecutor. Therefore, a plea in bar would not have been
successful in this case, and trial counsel's failure to pursue it does not constitute
ineffective assistance of counsel. Gordon v. State, 252 Ga. App. 133, 135 (1) (555
SE2d 793) (2001).

4. Next, Allen claims that the trial court erred by allowing the State to pursue cross-
examination that elicited impermissible character evidence. We find no error.

Evidence is relevant if it has "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." (Emphases supplied.) OCGA § 24-4-401.
"Whether to admit evidence is a matter resting in the trial court's sound discretion,
and evidence that is relevant and material to an issue in the case is not rendered
inadmissible because it incidentally places the defendant's character in issue."
(Citation and footnote omitted.) Hernandez v. State, 304 Ga. App. 435, 437 (3) (696
SE2d 155) (2010).

During a pre-trial conference, the trial court ruled that if the State intended to
introduce evidence regarding Allen's prior violent acts in the home, it would rule on
admissibility if and when the issue was raised during trial. When Allen called
Rayciayah to testify in his defense, the prosecutor asked her whether Allen had ever
been violent in the home, drawing an immediate objection from defense counsel.
During the bench conference that followed, the State argued that it was eliciting
such testimony because of Allen's threats to the victims, and to the extent that the
violence occurred while the victims were living at home, the testimony was probative
of whether the victims were intimidated by Allen and, resultantly, "went along with"
the sexual abuse and delayed in disclosing it.

The trial court deemed the evidence probative of Allen's ability to execute the threats
to which the victims had testified, but then limited the State's questioning to "violent
acts towards the children or [Rayciayah] that took place in the presence of the
children or in the home while the children were there." When Rayciayah
subsequently testified that Allen had not been violent in the home after the victims
were born, she was impeached with evidence of Allen's conviction for aggravated
assault, involving an incident in which Allen had pointed a gun at her.

First, we note that Allen was charged with two counts of rape against T.A. Force, as
a constituent element of rape,[6] "may be inferred by evidence of intimidation arising
from the familial relationship, and may be proved by direct or circumstantial
evidence. Lack of resistance, induced by fear, is not legally cognizable consent."
(Citations, punctuation, and footnotes omitted.) Williams v. State, 284 Ga. App. 255,
256-257 (1) (a) (b) (643 SE2d 749) (2007); Pollard v. State, 260 Ga. App. 540, 542-
543 (3) (580 SE2d 337) (2003) (intimidation can establish force and therefore threat
that victim would never see her family again if she disclosed abuse was sufficient to
establish force). In light of T.A.'s testimony, evidence of Allen's violent behavior in
the home after she was born tended to make it more probable that she submitted to
intercourse with Allen because she was intimidated by him.

Further, "Georgia's appellate courts have consistently held that evidence of a


defendant's history of violence toward a victim, a victim's family, or even a witness,
is admissible to explain a delay by the victim, her family, or another witness in
reporting a crime." Brown v. State, 324 Ga. App. 718, 724 (3) (751 SE2d
517)(2013).

Here, Rayciayah testified that although she had repeatedly asked T.A. whether she
had had sex with anyone, T.A. indicated that she had not. However, T.A. previously
testified that the reason for these negative responses to her mother was that she
was scared of Allen. She also insisted that she never physically fought off Allen
during the assaults because of his threats to her, L.A., and Rayciayah; that she had
seen Allen hit Rayciayah and throw things at her; that she had seen Allen whip L.A.
when L.A. walked in on Allen having sex with T.A.; and that she had seen Allen with
a gun in the home. Likewise, L.A. testified that he believed Allen would act on his
threats towards him because he knew Allen had a gun.

As other states have recognized, "when the victim of an alleged sexual offense did
not make a prompt complaint but instead disclosed the alleged incident only some
time later, evidence of the fact[s] and circumstances surrounding the delayed
complaint also may be relevant to the jury's evaluation of the likelihood that the
offense did or did not occur." People v. Brown, 883 P2d 949, 958 (IV) (Cal. 1994).
Thus,

[a]dmission of evidence of the circumstances surrounding a delayed [sexual assault]


complaint, including those that might shed light upon the reason for the delay, will
reduce the risk that the jury, perhaps influenced by outmoded myths regarding the
"usual" or "natural" response of victims of sexual offenses, will arrive at an
erroneous conclusion with regard to whether the offense occurred.

Id.

We conclude that on the facts present here, the State's questioning was also
probative of whether Allen's behavior created a threatening atmosphere in the home,
and would have therefore tended to explain the victims' reluctance to disclose the
abuse. See United States v. Powers, 59 F3d 1460, 1464 (II) (A) (4th Cir. 1995)
(testimony of victim, as well as victim's mother and brother, regarding defendant's
violence in the home, provided "a cogent explanation for [the victim's] failure to
report the sexual abuse for almost eighteen months" and made "it more probable
that [the victim] failed to report the sexual abuse . . . because of her fear of
retribution"); Commonwealth v. Dillon, 925 A2d 131, 139 (Pa. 2007) (defendant's
aggravated assault conviction, stemming from incident wherein defendant broke
victim's leg, tended to show reasons for victim's delay in reporting defendant's
sexual assaults and explained events surrounding the assaults and the prosecution
so that the case presented to the jury did not appear in a vacuum).

For these reasons, we reject Allen's contention that his conduct would not have
been relevant or probative. And, "[i]n light of the strong preference for admission of
relevant evidence under OCGA § 24-4-401," Anderson v. State, 337 Ga. App. 739,
743 (1) (788 SE2d 831) (2016), the trial court also committed no error in determining
that the prejudicial value of the evidence did not substantially outweigh its probative
value. Accordingly, Allen is not entitled to relief on these grounds.

5. Next, Allen claims that the trial court wrongfully permitted the sheriff's deputy to
repeatedly admonish him to stop crying during trial because these admonishments
impeded the presumption of innocence to which he was entitled. This contention is
unpersuasive.

It is well established that the accused, while in the presence of the jury, should be
free of indicia of guilt such as wearing shackles or prison garb, or being surrounded
by uniformed security personnel, or anything else that might infringe upon the
presumption that he is innocent. However, there is no question that every court has
the power to preserve and enforce order in its immediate presence, and as near
thereto as is necessary to prevent interruption, disturbance, or hindrance to its
proceedings.

(Citations, footnotes, and punctuation omitted.) Daniels v. State, 310 Ga. App. 541,
545 (2) (713 SE2d 689) (2011). "To demonstrate error, the defendant must show
that the security measure utilized was so inherently prejudicial as to pose an
unacceptable threat to his right to a fair trial." (Citation and punctuation
omitted.) Brashier v. State, 299 Ga. App. 107, 108 (1) (681 SE2d 750) (2009).

The record does not reflect that the deputy ever admonished Allen to stop crying.
Rather, the testimony elicited from witnesses from both the State and the defense
was that Allen sometimes faced the jurors and the prosecutor's table, and the deputy
instructed Allen to face forward instead. The deputy explained that this security
measure was for the safety of everyone in the courtroom, particularly given past
incidents of defendants leaving their seats and attacking persons in the courtroom.
The deputy further testified that because defendants are not restrained, having them
face forward allows a deputy more response time in the event of an incident. This
security measure is not at all comparable to the shackling Allen alludes to in his
appellate brief, and Allen fails to demonstrate that the deputy's instruction was so
inherently prejudicial as to pose an unacceptable threat to his right to a fair trial.

Moreover, it is undisputed that this issue was not raised during the trial, either by
defense counsel or his colleague who testified to having observed the
admonishments. Indeed, at the hearing on the motion for new trial, the trial court
stated that this issue was not brought to the court's attention, and the court did not
notice the deputy admonishing Allen. Allen's trial counsel recalled the deputy
approaching Allen, but had no independent memory of the deputy doing anything in
the jury's presence that would have prejudiced Allen. Thus, we find no error on the
part of the trial court in denying the motion for new trial on these grounds. See Ellis
v. State, 316 Ga. App. 352, 360-361 (5) (729 SE2d 492) (2012) (deputy's alleged
gestures or facial expressions during defendant's testimony did not prejudice
defendant where trial record did not reflect any inappropriate gestures by the deputy,
trial court had no memory or knowledge of any such behavior, and there was no
evidence that the jury witnessed any alleged gestures or facial expressions by the
deputy).

6. Lastly, Allen contends that the trial court erred by permitting the State a wide
latitude in cross-examining Dr. Farrar, while defense counsel was not afforded the
same opportunity to challenge the credibility of the detective. We discern no
reversible error.

Here, the trial court prohibited defense counsel from examining the detective on: (1)
Allen's prior trial, in which the detective initially testified that she had not requested
medical examinations of the victims; (2) an unrelated criminal case in which the
detective continued questioning a defendant after he indicated wanting to speak with
an attorney; and (3) an unrelated criminal case in which the detective had allegedly
omitted unfavorable portions of a transcript reflecting her interactions with a
defendant.[7]

Evidence used to attack a witness's credibility "may refer only to character for
truthfulness or untruthfulness." OCGA § 24-6-608 (a) (1). "Specific instances of the
conduct of a witness, for the purpose of attacking or supporting the witness's
character for truthfulness, other than a conviction of a crime . . . or conduct indicative
of the witness's bias toward a party may not be proved by extrinsic evidence."
OCGA § 24-6-608 (b). "Such instances may however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on cross-examination of
the witness . . . [c]oncerning the witness's character for truthfulness or
untruthfulness." OCGA § 24-6-608 (b) (1). "Because OCGA § 24-6-608 (b) places
the decision whether to admit specific instances of conduct within the trial court's
discretion, we will reverse the trial court's ruling only on a clear abuse of that
discretion." (Citation omitted.) Gaskin v. State, 334 Ga. App. 758, 762 (1) (a) (780
SE2d 426) (2015).

Pretermitting whether questioning pertaining to these instances of conduct was


permissible on direct and re-direct examination in this case, given that Allen was the
party that called the detective as a witness, Allen's argument still does not compel
reversal. First, defense counsel ultimately cross-examined the detective, through
impeachment, on the issue of the medical examination, and the detective explained
that she had forgotten that an examination had been conducted on T.A. Next, with
regards to the case in which the detective questioned a defendant after he
requested to consult with an attorney, we do not see how such conduct is relevant,
whether directly or inferentially, to the detective's character for truthfulness under
OCGA § 24-6-608. See Gaskin v. State, 334 Ga. App. 758, 763 (1) (780 SE2d
426) (2015) (acts probative of truthfulness include forgery, perjury, and fraud).

Lastly, even assuming the trial court erred in excluding the evidence from the final
case, which involved missing portions of a transcript, any error was harmless
because "it is highly probable that the error did not contribute to the
verdict." Gaskin, supra, 334 Ga. App. at 761 (1). "[W]hen we determine whether or
not an error was harmless, we review the record de novo and weigh the evidence as
we would expect reasonable jurors to have done so as opposed to viewing it all in
the light most favorable to the jury's verdict." (Citations, punctuation, and footnotes
omitted.) Dimauro v. State, 341 Ga. App. 710, 716 (1) (801 SE2d 558) (2017).

We first note that the excluded conduct was not undisputed, as the State
represented that in that separate case, the detective had provided "the entire file" to
the office of the district attorney and had not withheld portions of any transcript, and
that the incident "was not a police department issue." More significantly, however,
we remain cognizant that the jury viewed the footage of the forensic interviews, and
heard testimony from T.A., L.A., the forensic interviewer, the responding police
officer, and the two maternal aunts in whom the victims had confided regarding
Allen.

Given the evidence presented to the jury from numerous other sources, it is highly
probable that any error in excluding the proffered evidence had no influence on the
verdict, and thus, the purported error was harmless. Krirat v. State, 286 Ga. App.
650, 654 (1) (649 SE2d 786) (2007). We therefore conclude that reversal is not
warranted on this issue.

For the preceding reasons, the trial court's denial of Allen's motion for a new trial is
affirmed.

Judgment affirmed. Andrews, J., and Senior Appellate Judge Beasley concur.

[1] Although appellant's name is spelled "Lavern" in his appellate brief, we observe that it is spelled
"Laverne" in the indictment and sentencing sheet.

[2] Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

[3] One of the incest charges was dismissed after the trial court sustained Allen's demurrer as to that
count.

[4] Allen was sentenced to ten years imprisonment on this charge.


[5] See OCGA § 16-6-4 (a) (defining child molestation as "any immoral or indecent act to or in the
presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual
desires of either the child or the person"); OCGA § 16-6-4 (c) (aggravated child molestation requires "an
offense of child molestation which act physically injures the child or involves an act of
sodomy"); Mangham, supra, 291 Ga. App. at 696 (testimony that molestation was painful was sufficient to
prove physical injury element); OCGA § 16-6-1 (a) (rape requires "carnal knowledge of (1) [a] female
forcibly and against her will; or (2) [a] female who is less than ten years of age"); OCGA § 16-6-22 (a) (1)
(defining incest as "sexual intercourse or sodomy . . . with a person whom [the defendant] knows he . . . is
related to either by blood or by marriage as . . . [f]ather and child or stepchild).

[6] OCGA § 16-6-1 (a).

[7] In the trial court, Allen's counsel attempted to introduce evidence of these purported acts pursuant to
OCGA § 24-4-404 (b), which pertains to evidence admissible to show "motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident." Defense counsel argued,
secondarily, that he should be allowed to cross-examine the detective under OCGA § 24-6-608. As Allen
only pursues the latter argument on appeal, we limit our analysis to that section of the Code.
RICHARD LOUIS BERTRAND, Appellant,
v.
STATE OF ARKANSAS, Appellee.
No. CR-17-648.

Court of Appeals of Arkansas, Division IV.

Opinion Delivered: May 2, 2018.

Appeal from the Crawford County Circuit Court, [No. 17CR-16-26], Honorable Michael
Medlock, Judge.

Affirmed.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att'y Gen., by:Vada Berger, Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge.

A Crawford County jury convicted appellant, Richard Louis Bertrand, of raping his then
seven-year-old step-granddaughter, and he was sentenced to 25 years in the Arkansas
Department of Correction. On appeal, Bertrand asserts that his Sixth Amendment right to
confront his accuser was violated when the trial court erected a screen and that the trial
court abused its discretion by admitting the victim's bloodstained underwear into evidence.
For the following reasons, we affirm.

At the trial, the court allowed the then eight-year-old victim to testify behind a screen. The
screen was placed in front of Bertrand and prevented the victim from being able to see him
while she testified but allowed him to see an outline of her form while sitting in the witness
chair. Bertrand argues that his Sixth Amendment right to confront the witnesses against him
was violated when the trial court, without making the findings required by Maryland v.
Craig, 497 U.S. 836 (1990),allowed the testimony to occur. In Craig, the Supreme Court of
the United States held that the right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where the trial court makes a case-
specific finding that the denial of such confrontation is necessary to further an important
public policy, such as protecting a child witness from trauma, and only where the reliability
of the testimony is otherwise assured. Id.

The two-part test established in Craig applies only when a criminal defendant has been
deprived of the constitutional right to a face-to-face confrontation with the witnesses against
him or her. Id. Bertrand argues that he has been deprived of his constitutional right to a
face-to-face confrontation with his accuser. The record shows that considerable discussion
occurred between counsel and the trial court regarding the screen at issue. The screen was
described as one that would be placed in front of the defendant, on the desktop of counsel
table. It was three feet tall and four feet wide. It was a translucent screen through which
shadows could be seen, but a direct view between the victim and the defendant was
prohibited. The form of the individual sitting in the witness chair could be seen, but details or
a clear line of sight were obstructed.

The circuit court made no finding that the denial of the right of confrontation was necessary
to further an important public policy. The court simply stated that there was a "young victim
here that is seven or eight years of age. I think it's probably appropriate under those
circumstances." There was no finding that the child witness needed to be protected from a
trauma or findings of other public-policy protections. While we agree with Bertrand that this
was error, we hold under the facts of this case that the error was harmless and therefore
affirm.

Confrontation Clause errors are subject to harmless-error analysis, and the analysis of
whether a limitation on face-to-face confrontation is harmless must "be determined on the
basis of the remaining evidence[ ]" in the case. Coy v. Iowa, 487 U.S. 1012, 1022 (1988). In
the instant case, the evidence overwhelmingly established Bertrand's guilt, and thus, any
error was harmless.

Bertrand's wife, who is the victim's grandmother, testified that on the night of December 26,
2015, the victim and her younger sister were spending the night with Bertrand and her. Late
in the evening, as the victim was sitting in Bertrand's lap on the couch watching a movie,
the grandmother heard from another room the victim "scream" in pain. The next day, when
the victim was riding home with her mother, she told her mother that she had something
"disgusting" in her "panties[,]" which she had worn the entire time she stayed with Bertrand
and her grandmother. When they arrived home, her mother discovered blood in the victim's
underwear, prompting her to contact law enforcement.

As a result of that contact, the victim's mother took her to Hamilton House Child and Family
Safety Center on December 27, 2015. A sexual-assault nurse examiner, Malea McCormick,
conducted a physical examination of the victim. In her report, she noted that the victim had
informed her mother that "A.O. touched her girl parts." In the report, Bertrand was identified
as the "A.O.," or the "Alleged Offender." McCormick testified that the victim had a recent
bruise of her hymen from the 8 to the 10 o'clock position caused by a penetrating trauma.
McCormick specifically stated that the penetration was beyond the labia majora and labia
minora and that touching the hymen of prepubertal girls is "pretty painful" and could cause
them to scream out in pain.

As part of her examination, McCormick collected the victim's underwear and took swabs
from her labia majora. The Chief Forensic DNA Analyst from the Arkansas State Crime
Laboratory explained that standard DNA testing, which can link a sample to a specific
individual, revealed only female DNA from the swabs and tape lifts from the underwear.
This result can happen, she noted, because the female DNA in samples from female genital
areas and female underwear tends to mask male DNA. In such circumstances, Y STR
testing can be done, which ignores the female DNA, but can help potentially identify any
foreign male DNA. The only limitation in Y STR testing is that it can only go to a paternal
line (i.e., fathers and sons; grandfathers, fathers, and sons all have the potential of having
the same Y STR profile).
Here, Y STR testing revealed a match between Bertrand's DNA and the male DNA found in
the victim's swabs and tape lifts from her underwear, meaning that neither Bertrand nor any
of his paternal male relatives could be excluded as the source of the DNA in the swabs and
the tape lifts. Evidence adduced at trial indicated that none of Bertrand's male relatives
were present in the house either the day of the incident or the next day.

While at Hamilton House, the victim also was interviewed by Marilyn Sanders, a forensic
interviewer. Among other things, the victim told Sanders that, while Bertrand put his hands
in her underwear and outside of her "girl parts," he did not put the skin of his hand on them
or his fingers inside of them. The victim also told Sanders that, when she got off the couch,
she saw Bertrand's "boy parts" and that he was naked. She said that he told her not to tell
anyone and that she was scared that she would be in trouble if she did. According to
Sanders, the victim was very nervous during the interview and was trying hard not to cry.
When questioned by police, Bertrand neither admitted nor denied raping the victim.

Absent the testimony of the victim, then, the evidence at trial established that the victim
reported to her mother that Bertrand had touched her "girl parts." Additional evidence
established that the victim cried out in pain while alone with Bertrand, she had penetrating
trauma to her hymen and what appeared to be bloodstains in her underwear shortly
thereafter, and there was DNA on her labia majora and her underwear consistent with
Bertrand's paternal lineage. Because any error in allowing the victim to testify through a
screen was harmless, we reject Bertrand's claim of a reversible Confrontation Clause
violation.

Bertrand's second argument on appeal is that the trial court committed reversible error
when it admitted the victim's bloodstained underwear into evidence over his objection
pursuant to Rule 403 of the Arkansas Rules of Evidence. He claims that the underwear was
not relevant to any issue in the case because the blood in it was not proved to be the
victim's and because the prosecution was able to otherwise admit evidence of the testing of
the underwear without having to admit the underwear itself, which only served
toinflamethejury.

Rule 403 of the Arkansas Rules of Evidence provides, in part, that relevant evidence "may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice[.]" (Emphasis added.) The balancing mandated by the Rule is left to the sound
discretion of the trial court, and its determination under the Rule will not be reversed absent
a showing of manifest abuse. E.g., Lard v. State,2014 Ark. 1, at 7, 431 S.W.3d 249,
258, cert. denied, 135 S. Ct. 76 (2014).

Abuse of discretion is a "high threshold" that does not simply require a showing of error, but,
rather, a showing that the trial court's decision was "arbitrary and groundless." Bell v.
State, 2010 Ark. App. 813, at 5, 379 S.W.3d 748, 750. Our supreme court has "long held
that the introduction of bloodstained clothing and similar items worn by a victim is
permissible[.]" White v. State, 290 Ark. 130, 144, 717 S.W.2d 784, 791 (1986). Such is the
case here. The stained underwear was collected for testing, and tape lifts from it were
subsequently tested for DNA, resulting in a match to Bertrand's paternal DNA. As such, the
underwear itself then corroborated the testimony of the witnesses who said that the victim
reported something disgusting in her underwear, that they saw it, and that it prompted
action on their part, including testing it.

Given the purpose for its admission, we cannot say the circuit court abused its discretion by
concluding that the underwear's probative value was not substantially outweighed by the
danger of unfair prejudice under Rule 403. We therefore affirm the circuit court's decision to
admit the underwear into evidence. Bertrand's conviction is affirmed.

Affirmed.

GRUBER, C.J., and GLADWIN, J., agree.


UNG T. LE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
No. 05-16-01324-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed April 30, 2018.

Faith Johnson, Anne Wetherholt, for State of Texas.

John G. Tatum, for Ung T. Le, Appellant.

On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause
No. F-1353089-V.

Affirmed as Modified.

Before Justices Lang, Brown, and Whitehill.

Do Not Publish. TEX. R. APP. P. 47


MEMORANDUM OPINION
Opinion by Justice DOUGLAS S. LANG.

Ung T. Le appeals the trial court's final judgment convicting him of continuous sexual abuse
of child younger than fourteen years of age. The jury found Le guilty and assessed his
punishment at thirty years of imprisonment. Le raises seven issues on appeal arguing: (1)
the evidence is insufficient to support his conviction; (2) the trial court erred when it
overruled his objection to the designation of the forensic interviewer as the outcry witness;
(3) the trial court erred when it denied his motion for mistrial; (4) the trial court erred when it
overruled his request for a limiting instruction for the jury to disregard evidence that was
subject to a motion in limine; (5) the trial court erred when it overruled his objection to the
admission of the video-recorded forensic interview; (6) the trial court erred when it overruled
his objection to inclusion of lesser-included offenses in the jury charge; and (7) the trial
court erred when it overruled his objection to the jury charge because it did not require the
State to elect the manner and means of the offense it pursued. We conclude the evidence is
sufficient to support Le's conviction and the trial court did not err. Also, we modify the
judgment to reflect the correct statute. The trial court's final judgment is affirmed as
modified.

I. FACTUAL AND PROCEDURAL CONTEXT


On March 1, 2013, T.L., who was thirteen years old, approached Rebecca Brown, a
counselor at T.L.'s high school. Initially, T.L. complained that her grandfather was mean and
would hit her on the back with a back scratcher. Then, T.L. stated that Le, her father, was
also mean to her, would come home drunk in the early morning hours, and would yell at
her. However, when T.L. stated that Le would tell her that "it would be quick" and "one time
it hurt so bad, she couldn't walk the next day," Brown realized that T.L. was telling her
something more. Brown asked if T.L.'s father had been sexually abusing her and if there
had been penetration. T.L. responded affirmatively and stated it had been going on since
she was eight years old. T.L. also told Brown that her mother took pain medications and
was suicidal. Brown contacted the appropriate school officials, who notified the police.

T.L. was taken to the Dallas Children's Advocacy Center where she spoke with a forensic
interviewer, Patricia Guardiola, for over an hour. During that interview, T.L. made an outcry
of sexual abuse, stating she had been raped by Le for the past five years. She stated it
began when she was eight years old and the last incident of sexual assault had occurred
two days earlier. T.L. described Le penetrating her vagina, anus, and mouth with his penis,
T.L. being made to put her hand on Le's penis, and Le putting his mouth on her vagina. She
stated that these incidents occurred frequently, about every other night. T.L. provided
Guardiola with sensory details of the sexual assaults, including Le "preparing" her by
"licking her vagina," her physical pain during vaginal penetration, feeling like she was
"tearing apart" during anal penetration, how it was more painful when Le used a condom,
what Le's penis tasted like, and described seeing semen come out of Le's penis. T.L. also
described an incident when Le used her bed comforter, which had illustrations of leaves on
it, to clean his semen off of her body. T.L. told Guardiola that she was afraid to tell anyone
because she was scared for her safety and she was afraid her family would disown her. T.L.
stated that her mother would be asleep in the living room, at work, or away from the
apartment when the sexual assaults occurred. One incident T.L. described occurred at her
grandparents' apartment. Also, T.L. described an incident when her mother walked into
T.L.'s bedroom, found Le naked in T.L.'s bed, and demanded to know what was going on.
T.L. said that Le answered, "Oh, I'm licking my child's vagina," and, in response, her mother
just turned around and walked out.

Seven days after the last reported incident of sexual assault, T.L. was examined by Sandra
Onyinanya, a pediatric nurse practitioner and sexual assault nurse examiner (SANE).
Onyinanya did not observe any injuries or abnormalities to T.L.'s genital or anal areas.
However, she stated that 85-95% of all examinations are normal because the genital area is
"made to heal really, really fast." Onyinanya did not do a rape kit because it had been
longer than 96 hours since the last sexual assault.

Two or three weeks after T.L.'s forensic interview, Officer Johnsey Vann of the Dallas Police
Department obtained a search warrant for the apartment where Le, T.L.'s mother, and T.L.
lived. T.L.'s mother told the police that T.L.'s things were in the closet. The police seized a
comforter with illustrations of leaves on it, a gold blanket, and a pillow sham from that
closet. Forensic testing revealed the presence of seminal fluid and blood on the comforter
and blanket. Le was determined to be the contributor of the DNA for the stain on the blanket
and there were three possible contributors, including Le, for the stains on the comforter.
Le was indicted for continuous sexual abuse of a young child. During the jury trial, testimony
was heard from several witnesses including T.L., who was seventeen years old at the time
of the trial, and Guardiola, who was determined by the trial court to be the outcry witness. In
addition to describing the sexual abuse, T.L. testified that she was living in foster care and
her parents' natural rights to her had been terminated. The day after T.L.'s testimony
concluded, Le moved for a mistrial, arguing T.L.'s testimony relating to the termination of
her mother's and Le's parental rights violated a motion in limine, the prejudicial effect of that
evidence outweighs its probative value, and, in the alternative, asked for a limiting
instruction that all testimony related to the civil matter should be disregarded and not
considered for any purpose. The trial court denied the motion. Also, T.L.'s mother and
maternal grandmother testified for the defense. T.L.'s mother admitted to having attempted
suicide and taking hydrocodone "in February." Further, T.L.'s mother testified that she
divorced Le in 2005 and he did not live with her until they resumed their relationship in
2010, she did not see anything that "would be consistent with [Le] abusing [T.L.]," she did
not find Le naked in T.L.'s bed, and she did not believe the allegations "[b]ecause [she] did
not see in [sic] [her] own eyes. Because without seeing [her] own eyes [sic], [she] don't
believe anything." T.L.'s maternal grandmother testified that after her daughter's divorce
from Le in 2005, T.L. lived with her grandparents, not her mother, and Le moved to
Louisiana and Kansas before returning to Texas in 2010. She also stated that she did not
believe the allegation, but if T.L. had said something to her, she would have protected her
granddaughter. The jury found Le guilty and assessed his punishment at thirty years of
imprisonment.

II. SUFFICIENCY OF THE EVIDENCE


In his first issue on appeal, Le argues the evidence is insufficient to support his conviction.
The State responds that the evidence showed that Le committed two or more sexual acts
during a period of over thirty days.

A. Standard of Review
When reviewing the sufficiency of the evidence, an appellate court considers all of the
evidence in the light most favorable to the verdict to determine whether the jury was
rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); State v. Bolles, 541 S.W.3d 128, ___, 2017 WL 4675659, at *4
(Tex. Crim. App. 2017); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010) (plurality op.). An appellate court is required to defer to the jury's credibility and
weight determinations because the jury is the sole judge of the witnesses' credibility and the
weight to be given to their testimony. See Jackson,443 U.S. at 319, 326; Bohannan v.
State, No. PD-0347-15, 2017 WL 5622933, at *9 (Tex. Crim. App. Nov. 22,
2017); Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted,
will be considered when reviewing the sufficiency of the evidence. See McDaniel v.
Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42
(1988); Jackson, 443 U.S. at 319.

B. Applicable Law
A person commits the offense of continuous sexual abuse of a child if, during a period that
is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the
time of the commission of each act, he is seventeen years of age or older and the victim is a
child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b) (West
Supp. 2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.).
Although the exact dates of the abuse need not be proven, the offense requires proof that
two or more acts of sexual abuse occurred during a period of thirty days or
more. See PENAL § 21.02(d); Garner, 523 S.W.3d at 271. However, the statute does not
require that the jury agree unanimously on the specific acts of sexual abuse the defendant
committed or the exact dates when those acts were committed. See PENAL § 21.02(d).

The statute defines an "act of sexual abuse" as including indecency with a child under
section 21.11(a)(1) and aggravated sexual assault under section 22.021. See PENAL §
21.02(c). Under section 21.11 the offense of indecency with a child occurs when a person
engages in sexual contact with a child younger than seventeen years of age or causes the
child to engage in sexual contact. SeePENAL § 21.11 (West Supp. 2017). Section 22.021
identifies several alternative means of committing aggravated sexual assault, including
intentionally or knowingly penetrating the anus or sexual organ of a child, causing the
penetration or contact of the mouth of a child with the sexual organ of the defendant, or
causing the sexual organ of a child to contact the mouth of the defendant. SeePENAL §
22.021(a)(1)(B) (West Supp. 2017). The testimony of a child victim alone is sufficient to
support a conviction for continuous sexual abuse of a child. SeeTEX. CODE CRIM. PROC.
ANN. art. 38.07 (West Supp. 2017); Garner, 523 S.W.3d at 271.

C. Application of the Law to the Facts


Le claims the evidence is insufficient because it shows that: (1) T.L. was angry with her
father and grandfather for being strict at the time of her outcry, T.L. gave the forensic
interviewer conflicting accounts of the sexual assaults, and her timeframe of events did not
comport with other testimony; (2) the DNA evidence only shows that Le had "sex on the
blankets at some point in time," not that he had sex with T.L.; and (3) although T.L. reported
the abuse within a few days of the last alleged incident of sexual abuse, she was not
physically examined until it was too late to administer a rape kit and T.L.'s physical
examination did not show signs of sexual assault. These arguments go to the jury's
assessment of the weight and credibility of the evidence. However, we defer to the jury's
credibility and weight determinations because the jury is the sole judge of T.L.'s and the
other witnesses' credibility, and the weight to be given to their testimony. See Jackson, 443
U.S. at 319, 326; Bohannan, 2017 WL 5622933, at *9; Brooks, 323 S.W.3d at 899.

T.L.'s testimony plus the other evidence in the record is sufficient to show that the acts of
sexual abuse occurred during a period of thirty days or more. The record shows that T.L.
gave detailed testimony describing several instances of sexual assault by Le, which she
stated happened every other night. T.L. also stated the sexual assault at her grandparents'
apartment occurred over a year before the last sexual assault. Further, T.L. stated that, in
2013, when she "told [her] counselor" about the sexual abuse and went to the Children's
Advocacy Center she was "13 about to be 14" and in the seventh grade. She stated that Le
would "release" his semen on her body and would use anything nearby to wipe it up,
including her blanket. The testimony of T.L., a child victim, alone is sufficient to support a
conviction for continuous sexual abuse of a child. See CRIM. PROC. art.
38.07; Garner, 523 S.W.3d at 271.

Issue one is decided against Le.

III. OBJECTION TO THE OUTCRY WITNESS


In issue two, Le argues the trial court erred when it overruled his objection to the outcry
witness. Le contends that T.L. made specific allegations of sexual assault to Brown before
talking to Guardiola. As a result, Le claims that Guardiola should not have been allowed to
give hearsay testimony because she was not the first outcry witness. The State responds
that Guardiola was the first person over the age of eighteen to whom T.L. gave all the
details of her sexual abuse.

A. Standard of Review
An appellate court reviews a trial court's outcry witness designation for an abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rodgers v.
State, 442 S.W.3d 547, 552 (Tex. App.-Dallas 2014, pet. ref'd); Sims v. State, 12 S.W.3d
499, 500 (Tex. App.-Dallas 1999, pet. ref'd). Trial courts have broad discretion when
deciding which witnesses qualify as outcry witnesses. See Sims, 12 S.W.3d at 500.

B. Applicable Law
Article 38.072 of the Texas Code of Criminal Procedure concerns the admissibility of certain
hearsay evidence in specified crimes against a child younger than fourteen years of age or
with a disability. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2017). The
legislature enacted article 38.072 because it is often traumatic for children to testify in a
courtroom setting, especially about sexual offenses committed against them. See Martinez
v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005). The child's statement to the adult
is commonly known as the "outcry," and the adult who testifies about the outcry is known as
the "outcry witness." See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
Outcry testimony admitted pursuant to article 38.072 is considered substantive evidence,
admissible for the truth of the matter asserted in the testimony. See Bays v. State, 396
S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013); Martinez, 178 S.W.3d at 811; see also Duran
v. State, 163 S.W.3d 253, 257 (Tex. App.-Fort Worth 2005, no pet.).

Article 38.072 applies to out-of-court statements that: (1) describe the alleged offense; (2)
are made by the child; and (3) are made to the first person, eighteen years of age or older,
other than the defendant, to whom the child made a statement about the
offense. See CRIM. PROC. art. 38.072 § 2(a); Bays, 396 S.W.3d at 581 n.1. To be a proper
outcry statement, the child's statement must describe the alleged offense in some
discernable manner and must be more than a general allusion to sexual
abuse. See Garcia, 792 S.W.2d at 91; Rodgers, 442 S.W.3d at 552; Sims, 12 S.W.3d at
500. If the State presents evidence that a person is a proper outcry witness, the burden to
rebut this evidence then shifts to the defendant. See Garcia, 792 S.W.2d at 91-92; Eldred v.
State, 431 S.W.3d 177, 184 (Tex. App.-Texarkana 2014, pet. ref'd); see also In re
Z.L.B., 102 S.W.3d 120, 123 (Tex. 2003) (applying standard to juvenile trials).

Also, article 38.072 requires that: (1) on or before the fourteenth day before proceedings
begin, the adverse party is (a) notified of the State's intent to offer the outcry statement, (b)
provides the name of the outcry witness the State intends to offer, and (c) provides a written
summary of the statement; (2) the trial court holds a hearing to determine whether the
statement is reliable; and (3) the child testifies or is available to testify. See CRIM. PROC.
art. 38.072 § 2(b); Bays, 396 S.W.3d at 581 n.1.

C. Application of the Law to the Facts


On appeal, Le's challenge involves the identification of the outcry witness, not whether the
State complied with the procedural aspects of the statute. In particular, Le contends that
Guardiola, the forensic interviewer, was not a proper outcry witness because T.L. had
already revealed the details of the offense to Brown, the high school counselor. Le's
argument that Guardiola was not the proper outcry witness is premised on the timing of
T.L.'s statements to Guardiola and a legal proposition that "the proper outcry witness is not
determined by comparing statements the child gave to different individuals and then
deciding which person received the most detailed statement about the offense." See Brown
v. State, 189 S.W.3d 382, 386 (Tex. App.-Texarkana 2006, pet. ref'd).

Le was indicted for continuous sexual abuse of a child younger than fourteen years of age.
The indictment alleged, in part, that Le committed two or more acts of sexual abuse against
T.L. by contact and penetration of her sexual organ, anus, and mouth by Le's sexual organ,
by contact of Le's mouth with her sexual organ, and by contact of her hand with Le's sexual
organ.

Before trial, the trial court inquired whether Brown, the first witness was the outcry witness.
The State answered that, although Brown was listed as one of many outcry witnesses, it
was the State's position that Guardiola was the outcry witness because "not enough
description was given to [] Brown." Le's counsel responded that he "consider[ed] [Brown]
the outcry witness. So from that standpoint, [he] was fully prepared to be able to cross-
examine her about everything that was said." The trial court stated that if Brown was not an
outcry witness then there was no need for a hearing and that if the State got into anything
that T.L. said to Brown it would be subject to all of the hearsay rules.

During the trial, Brown testified, without objection, that T.L. came into her office and during
their conversation:

T.L. said that [Le] would tell her it would be over, you know, it would be quick. It would be
over soon. And then [T.L.] did say that it was—one time it hurt so bad, she couldn't walk the
next day.
....
I did ask [T.L.] if [Le] had been sexually abusing her. When [T.L.] got to that point of it
hurting and being over quick and not being able to walk, I did ask [T.L.] at that point if there
had been any penetration and [T.L.] said yes.

Brown also testified that no other details were provided. In addition, Brown stated that T.L.
said the sexual abuse had been going on since she was eight years old.

After Brown's testimony, but before Guardiola's testimony, the trial court conducted a
hearing outside the presence of the jury to determine whether Guardiola was a proper
outcry witness. During the hearing, Guardiola testified, in part, that T.L. told Guardiola she
had been raped for the past five years. Guardiola testified that T.L. described with sensory
details, Le penetrating her vagina, anus, and mouth with his penis, T.L. being made to put
her hand on Le's penis, and Le performing oral sex on T.L. In addition Guardiola testified
about incidents T.L. related that occurred in T.L.'s room and at her maternal grandparents'
apartment. At the conclusion of Guardiola's testimony, Le objected to Guardiola as the
outcry witness, arguing that the State failed to meet its burden because Brown's earlier
testimony showed that Brown was the first person T.L. told about the offense. Le did not
recall Brown in an attempt to rebut the State's predicate or call T.L. to elicit testimony
regarding the specifics of her statements to Brown. See Garcia, 792 S.W.2d at 91-92. The
trial court overruled Le's objection, concluding that Guardiola's testimony established the
required predicate under article 38.072. Guardiola testified as the outcry witness at trial.

Article 38.072 requires a description of the offense. See CRIM. PROC. art. 38.072 § 2(a).
The offense in this case is continuous sexual abuse of a child younger than fourteen years
of age. See PENAL § 21.02. Brown testified that she asked T.L. if there had been
"penetration" and T.L. responded "yes," and T.L. told her it had been going on since she
was eight years old. The record does not show that Brown asked or T.L. explained what the
term "penetration" meant. Although Brown may have inferred what T.L. meant in response
to her question about penetration, T.L.'s lack of explanation at the time does not serve to
describe the alleged offense of continuous sexual abuse. It was not until T.L. spoke with
Guardiola that she made her allegations of sexual abuse and it became clear that the
sexual abuse involved multiple incidents of abuse occurring for a period of thirty days or
more. The trial court could have reasonably concluded that T.L.'s statements to Brown were
nothing more than a general allusion that sexual abuse was occurring. See Reyes v.
State, 274 S.W.3d 724, 728-29 (Tex. App.-San Antonio 2008, pet. ref'd)(although child first
acknowledged to social worker she had been abused, trial court did not err when it
concluded that acknowledgment did not provide sufficient detail); Smith v. State, 131
S.W.3d 928, 931 (Tex. App.-Eastland 2004, pet. ref'd)(child's statement to mother that
defendant had been performing oral sex on him did not relay any specific details about
charged offense for purposes of determining proper outcry witness); Josey v. State, 97
S.W.3d 687, 692-93 (Tex. App.-Texarkana 2003, no pet.) (child's statement to mother that
defendant "fingered" him made only general allusion or insinuation that digital penetration
had occurred where child did not explain what being "fingered" meant); Castelan v.
State, 54 S.W.3d 469, 475-76 (Tex. App.-Corpus Christi 2001, no pet.)(grandmother was
not proper outcry witness because child's statement that defendant "put his thing in through
the back" did not relay specific details of abuse). Further, during the hearing, after the State
laid the proper predicate that Guardiola was the outcry witness, the defense did not recall
Brown in an attempt to rebut this predicate or elicit testimony from T.L. regarding the
specifics of the statements she made to Brown. See Garcia, 792 S.W.2d at 91-92; see
also Eldred, 431 S.W.3d at 184 (noting standard and that record contained some rebuttal
evidence relating to whether witness was proper outcry witness). In the absence of any
such clarification or rebuttal, the trial court ruled based on the evidence before it as to the
designation of the outcry witness. See Garcia, 792 S.W.2d at 91-92 (noting that defense
had opportunity to recall teacher to rebut predicate that child protective specialist was outcry
witness or call child to elicit testimony regarding specifics of statements to teacher).

The record shows that Guardiola was the first person to whom T.L. described, in a
discernable manner, two or more acts of sexual abuse over a period of thirty or more days.
Accordingly, we conclude the trial court did not err when it allowed Guardiola to testify as
the outcry witness.

Issue two is decided against Le.

IV. MOTION FOR MISTRIAL AND REQUEST FOR AN


INSTRUCTION TO DISREGARD
In issues three and four, Le argues the trial court erred when it denied his motion for mistrial
and overruled his request for an instruction to the jury to disregard evidence that was
subject to a motion in limine. Le claims the prejudicial effect of T.L.'s testimony that her
parents' natural rights had been terminated was outweighed by its probative value. The
State responds that the motion for mistrial and request for an instruction to disregard were
untimely because they were made the day following T.L.'s testimony relating to the
termination of her parents' natural rights.

A. Applicable Law
An appellate court should not address the merits of an issue that has not been preserved
for appeal. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve
error for appellate review, the record must show the appellant made a timely request,
objection, or motion. See TEX. R. APP. P. 33.1(a)(1). A party's complaint is timely if the
party makes the complaint as soon as the grounds for it become apparent. See London v.
State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Griggs v State, 213 S.W.3d 923, 927
(Tex. Crim. App. 2007). This means "as soon as the [objecting party] knows or should know
that an error has occurred." See London, 490 S.W.3d at 507 (quoting Hollins v. State, 805
S.W.2d 475, 476 (Tex. Crim. App. 1991)). Failure to properly preserve error forfeits the
complaint on appeal. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).

B. Application of the Law to the Facts


Before trial, Le filed a motion in limine seeking an order instructing the State to refrain from
making any direct or indirect reference at trial relating to "[a]ny information concerning the
civil family matter, Cause No[.] 05-09804, involving [Le] and [T.L.], including[,] but not
limited to, the final disposition of the civil family law case." The trial court orally granted the
motion in limine during a pretrial hearing.
During the trial, the State did not approach the bench before T.L. testified, without objection,
on both direct and re-direct examination that her parents' natural rights to her had been
terminated. At the end of the day, T.L. was excused, subject to recall. The following day,
before the next witness was called to testify, Le sought a mistrial on the basis that the State
did not approach the trial court before asking T.L. questions about the termination of her
parents' natural rights. With respect to the timeliness of his motion, Le's counsel stated:

I didn't object at that time because at the time [the State] had asked—the way [the State]
asked the question, [the State] didn't ask the question such as what was the status of the
care, how did the case turn out. The way [the State] phrased it was basically your mother's
rights have been terminated. So basically what happened, the harmful effects, the
prejudicial information was included in the question. And for me to object strenuously and
have a hissy fit would have only emphasized what was being said versus trying to mitigate
what had been said.

Also, Le's counsel claimed that there had been no additional witnesses and this was his first
opportunity "from when we closed but prior to starting" that he had to bring the matter to the
trial court's attention. Further, in the alternative, Le requested the trial court to strike the
information relating to the civil matter and instruct the jury to disregard that information. The
trial court denied Le's request.

In accordance with Texas Rules of Appellate Procedure 33.1, Le's motion for mistrial and
alternative request for a limiting instruction must be timely and specific. See R. APP. P.
33.1. In order for Le's motion for mistrial and alternative request for a limiting instruction to
be timely, Le had to make his complaint as soon as the grounds for it become
apparent. See London, 490 S.W.3d at 507; Griggs,213 S.W.3d at 927. The grounds for Le's
motion for mistrial or limiting instruction became apparent during T.L.'s direct examination
and again, during re-direct examination, when she testified her parents' natural rights had
been terminated. However, Le failed to move for a mistrial until the following morning, after
the parties had concluded their direct examination, cross examination, and re-direct
examination of T.L. and she had been excused, subject to recall, the previous
afternoon. See Griggs, 213 S.W.3d at 927 (motion for mistrial was untimely because
grounds became apparent during witness's testimony, but motion was made after that
witness and another witness concluded their testimony). Under these circumstances, we
conclude that Le's motion for mistrial and alternative request for a limiting instruction were
untimely. Le has failed to preserve his complaints in issues three and four for appellate
review.

V. OBJECTION TO THE EVIDENCE


In issue five, Le argues the trial court erred when it overruled his objection to the admission
of the video recording of the T.L.'s forensic interview. He contends that the video recording
of T.L.'s forensic interview was not admissible under Texas Rule of Criminal Procedure
article 38.072 or Texas Rule of Evidence 107. The State responds that when Le questioned
Guardiola and T.L. about what was said during the forensic interview and how it was said,
the rule of optional completeness allowed the video recording of that forensic interview to be
admitted into evidence.
A. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-
discretion standard. See Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App.
2016); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A trial court's
decision will be upheld when that decision is within the zone of reasonable
disagreement. See Henley, 493 S.W.3d at 83; Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010).

B. Applicable Law
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. See TEX. R. EVID. 801; Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App.
2011). Hearsay statements are not admissible unless they fall under a recognized exception
to the hearsay rule. See R. EVID. 802; Pena, 353 S.W.3d at 814.

Article 38.072 of the Texas Code of Criminal Procedure creates a hearsay exception for a
child-complainant's out-of-court "statements" that "describe the alleged offense," so long as
those statements were made "to the first [adult] person . . . to whom the child . . . made a
statement about the offense." See CRIM. PROC. art. 38.072; Bays, 396 S.W.3d at 585.
Article 38.072 is a hearsay exception statutorily limited to the live testimony of the outcry
witness. See CRIM. PROC. art. 38.072; Bays, 396 S.W.3d at 581, 585-88. However, Texas
Code of Criminal Procedure article 38.071 provides an exception to the hearsay rule by
allowing for the admission of a child's video-recorded statement. See CRIM. PROC. art.
38.071 (West Supp. 2017); Bays, 396 S.W.3d at 589-90. Several requirements must be met
in order for the video-recorded statement to be admissible, including that the child must be
unavailable to testify at trial. SeeCRIM. PROC. art. 38.071; Bays, 396 S.W.3d at 589-90.

Texas Rule of Evidence 107, which is known as the rule of optional completeness, is also
an exception to the hearsay rule. See Pena, 353 S.W.3d at 814; Walters,247 S.W.3d at
217. Rule 107 provides that:

If a party introduces part of an act, declaration, conversation, writing, or recorded statement,


an adverse party may inquire into any other part on the same subject. An adverse party
may also introduce any other act, declaration, conversation, writing, or recorded statement
that is necessary to explain or allow the trier of fact to fully understand the part offered by
the opponent.

R. EVID. 107. Rule 107 has been recognized as encompassing the "opening the door"
situation. See Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim. App. 1999). The purpose
of the rule is to reduce the possibility of the jury receiving a false impression from hearing
only a part of some act, conversation, or writing, and it "permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a matter
opened up by the adverse party." See Pena, 353 S.W.3d at 814; Walters, 247 S.W.3d at
217-18.
To be admitted under rule 107, the omitted portion of the statement must be on the same
subject and necessary to make it fully understood. See Pena, 353 S.W.3d at 814; Sauceda
v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004). More specifically, under Rule 107
the State is entitled to admission of a complainant's video-recorded statement when: (1) the
defense attorney asks questions concerning some of the complainant's statements on the
video recording; (2) the defense attorney's questions leave the possibility of the jury
receiving a false impression from hearing only a part of the conversation, with statements
taken out of context; and (3) the video recording is necessary for the conversation to be fully
understood. See Mick v. State, 256 S.W.3d 828, 831 (Tex. App.-Texarkana 2008, no
pet.); Tovar v. State, 221 S.W.3d 185, 190-91 (Tex. App.-Houston [1st Dist.] 2006, no
pet.); Credille v. State, 925 S.W.2d 112, 116-17 (Tex. App.-Houston [14th Dist.] 1996, pet.
ref'd).

However, there are two limitations to the scope of rule 107: (1) it is not invoked by the mere
reference to a document, statement, or act, so only the parts or items germane to the part
or item offered become admissible; and (2) the matter offered on the justification of
completeness may be excluded under Texas Rule of Evidence 403 if its prejudicial effect
substantially outweighs its probative value. See Pena, 353 S.W.3d at 814; Walters, 247
S.W.3d at 218; Fuentes, 991 S.W.2d at 279. Further, rule 107 does not permit the
introduction of a video recording when it is unnecessary to show the context of the
statement, such as the absence of a statement by the complainant rather than the existence
of any directly contradictory statement. See Sauceda, 129 S.W.3d at 121-24.

C. Application of the Law to the Facts


During the trial, Le's counsel questioned Guardiola and T.L. about specific questions and
statements they made during the video-recorded forensic interview. The record shows that
the State called Guardiola as a witness and during cross examination, Le's counsel inquired
whether Guardiola asked T.L. specific questions and if Guardiola asked follow up questions
to clarify certain statements made by T.L. that defense counsel suggested showed
inconsistencies. At one point, when Guardiola testified to one of T.L.'s statements, defense
counsel asked "Are you sure that's exactly what she said?" and Guardiola responded "I
don't know verbatim, but yes." Then, defense counsel asked, "Did she not say `He pushed
in and I'm not used to it?'" Guardiola responded "I'm still looking at the time about 7:16. At
7:16 she said `Still not used to it even if it happened this long.'"

Also, the State called T.L. to testify and, during cross examination, Le's counsel asked T.L.
about statements she made to the forensic interviewer, suggesting her statements were
inconsistent with her trial testimony. For example, that cross examination included, inter
alia, the following:

Le's counsel: Tell me this. When you testified earlier today when [the State] was asking you
questions, you said that you had your pajamas on. Do you remember that?
T.L.: Yes. Yes, sir.
Le's counsel: Do you remember when you talked with the lady—and you saw Ms.
[Guardiola] here today, didn't you? The lady you had the forensic interview with over at the
Dallas Children's Advocacy Center?
T.L.: I'm not sure. I don't remember.
Le's counsel: But anyway, you told her that you had shorts on that night, didn't you?
T.L.: Yes.
Le's Counsel: Now, you testified today that [Le] allegedly was doing this to you if not every
night, but every other night; is that right?
T.L.: Yes, sir.
Le's Counsel: But do you remember talking to the lady over at the forensic place, you didn't
tell her that, did you?
T.L.: I don't remember talking to her since it's been a while.
Le's Counsel: So you don't remember what you said to her that it just—that it happened just
every now and then?
T.L.: No, sir, I don't remember what I said to her.

Further, Le's counsel called Guardiola as a witness. During the State's cross examination,
the State sought to admit into evidence the video recording of Guardiola's forensic interview
of T.L. Le made two objections, arguing it was irrelevant and "it's not a proper document for
introduction it relates to—I haven't opened the door to introduction of the exhibit." The trial
court overruled both objections.

Le is correct that article 38.072 of the Texas Code of Criminal Procedure does not permit
admission of T.L.'s video-recorded statement. See Bays, 396 S.W.3d 885-92. Also, T.L.'s
video-recorded statement was not admissible under article 38.071 because T.L. was
available to testify. See CRIM. PROC. art. 38.071; Bays, 396 S.W.3d at 589-90. However,
T.L.'s video-recorded statement was admissible under Texas Rule of Evidence 107
because Le's counsel opened the door to the video. He questioned Guardiola and T.L.
about some of the questions and statements they made on that video recording. The trial
court could have reasonably determined the questions asked by Le's counsel could have
left a false impression and misled the jury and the video recording was necessary for
Guardiola and T.L.'s forensic interview to be fully understood. Accordingly, we conclude the
trial court did not err when it overruled Le's objection to the admission of the video recording
of T.L.'s forensic interview. Issue five is decided against Le.

VI. OBJECTIONS TO THE JURY CHARGE


In issues six and seven, Le argues the trial court erred when it overruled his objections to
the jury charge because it included lesser-included offenses and did not require the State to
elect the manner and means of the offense it was pursuing. Le claims that he "should be
protected from a charge of lesser-included offenses like the State if he objects" and the
State should have been required to elect which offense it was going to pursue to avoid the
potential for multiple punishments. The State responds that the trial court may sua sponte
include lesser-included offenses in the jury charge and there was some evidence that would
permit the jury to rationally find that if Le was guilty, he was guilty only of the lesser offense.

A. Standard of Review
An appellate court reviews the trial court's decision to include a lesser-included offense in
the jury charge for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666
(Tex. Crim. App. 2004) (concluding trial court did not abuse discretion when no evidence to
support inclusion of lesser-included offence); see also Grey v. State, 298 S.W.3d 644, 656
(Tex. Crim. App. 2009) (Cochran, J., concurring).

B. Applicable Law
Section 21.02(b) lists five elements for the offense of continuous sexual abuse of a child: (1)
a person; (2) who is seventeen or older; (3) commits a series of two or more acts of sexual
abuse; (4) during a period of thirty or more days; and (5) each time the victim is younger
than fourteen. See PENAL § 21.02(b). Section 21.02(c) specifically enumerates the acts of
sexual abuse. See Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014). Indecency
with a child under section 21.11(a)(1) and aggravated sexual assault under section 22.021
are two of the specifically enumerated predicate "acts of sexual abuse" for the offense of
continuous sexual abuse. See PENAL § 21.02(c)(2)-(3). The specifically enumerated "acts
of sexual abuse" are lesser-included offenses of the offense of continuous sexual
abuse. See Price, 434 S.W.3d at 606; Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App.
2011). If there is sufficient evidence to support a conviction on a lesser-included offense, a
trial court may submit the lesser-included-offense instruction, even though the defendant did
not request the charge and even over the defendant's objection. See Humphries v.
State, 615 S.W.2d 737, 738 (Tex. Crim. App. [Panel Op.] 1981); Ford v. State, 38 S.W.3d
836, 840-41 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd); McQueen v. State, 984
S.W.2d 712, 717 (Tex. App.-Texarkana 1998, no pet.); Cevallos v. State, 699 S.W.2d 334,
335-36 (Tex. App.-Houston [1st Dist.] 1985, pet. ref'd); Rodriguez v. State, 661 S.W.2d 332,
337 (Tex. App.-Corpus Christi 1983, pet. ref'd); see also Grey, 298 S.W.3d at 655 & n.19
(Cochran, J., concurring).

Except in situations where different time periods are at issue, a fact finder can find a
defendant guilty of: (1) the offense of continuous sexual abuse; (2) the enumerated act or
acts of sexual abuse; or (3) a lesser-included offense or offenses of the enumerated act or
acts of sexual abuse. See PENAL § 21.02(e); Price, 434 S.W.3d at 606, 610; Carmichael v.
State, 505 S.W.3d 95, 100 (Tex. App.-San Antonio 2016, pet. ref'd) (concluding double
jeopardy violated where defendant convicted of both continuous sexual abuse and
predicate offense that occurred during the same time period). The statute's legislative intent
is plain that it does not permit multiple convictions for continuous sexual abuse and for
enumerated acts of sexual abuse unless the latter occurred during a different period of
time. See Price, 434 S.W.3d at 606.

C. Application of the Law to the Facts


The record does not show that the State requested the lesser-included offenses to be
included in the jury charge. However, the jury charge asked the jury to determine, in the
alternative, whether Le was guilty of: (1) continuous sexual abuse of a child; or (2) one or
more of the following five lesser-included offenses (a) aggravated sexual assault of T.L. by
contact or penetration with her sexual organ by Le's sexual organ, (b) aggravated sexual
assault of T.L. by contact or penetration of her anus by Le's sexual organ, (c) aggravated
sexual assault of T.L. by contact or penetration of her mouth with Le's sexual organ, (d)
aggravated sexual assault by the contact of T.L.'s sexual organ by Le's mouth, or (e)
indecency with a child by the contact of T.L.'s hand with Le's genitals. During the charge
conference, Le objected to the inclusion of the five counts of lesser-included offenses,
arguing those offenses had a "different manner and means" from the offense of continuous
sexual abuse, lack of adequate notice because the lesser-included offenses exposed him to
five possible convictions, each count had not been separately considered by the grand jury
for indictment, and the State should be required to elect the manner and means of the
aggravated assault it wanted to pursue. The trial court overruled Le's objections. The jury
found Le guilty only of the offense of continuous sexual abuse.

In this case, the evidence showed that Le sexually assaulted T.L. two or more times from
the time she was five years of age until she was thirteen years of age by penetrating her
vagina, anus, and mouth with his penis, making T.L. put her hand on Le's penis, and by Le
putting his mouth on T.L.'s vagina. From this evidence, a rational trier of fact could infer that
Le committed two or more acts of sexual abuse and, at the time of the commission of each
act, he was seventeen years of age or older and T.L. was younger than fourteen years of
age. On the other hand, especially given Le's trial strategy of showing T.L. had some
memory lapses and inconsistent statements, another rational trier of fact could have found
that Le committed one or all of the predicate offenses of aggravated sexual assault or
indecency with a child, which are lesser-included offenses of the offense of continuous
sexual abuse. See Price, 434 S.W.3d at 606; Soliz, 353 S.W.3d at 854. Therefore, because
there was sufficient evidence to support a conviction on one or all of the lesser-included
offenses, we conclude the trial court did not err when, in its discretion, it included the lesser-
included-offense instructions, even though Le and the State did not request the charge and
Le objected. See Humphries, 615 S.W.2d at 738; Ford, 38 S.W.3d at 840-
41; McQueen, 984 S.W.2d at 717; Cevallos, 699 S.W.2d at 335-36; Rodriguez, 661 S.W.2d
at 337; see also Grey,298 S.W.3d at 655 & n.19 (Cochran, J., concurring).[1] Further, the
jury charge asked the jury to determine, in the alternative, whether Le was guilty of: (1)
continuous sexual abuse of a child; or (2) one or more of the following five lesser-included
offenses. Accordingly, we conclude the trial court did not it when it overruled Le's objection
that the State should have been required to elect which offense it was going to pursue to
avoid the potential for multiple punishments because, in compliance with section 21.02(e), it
does not permit convictions for both continuous sexual abuse and the enumerated predicate
acts of sexual abuse.

Issues six and seven are decided against Le.

VII. MODIFICATION OF THE JUDGMENT


Although neither party raises the issue, we observe that the final judgment incorrectly lists
the statute for the offense. Le was indicted for the offense of continuous sexual abuse of
young child and the jury found Le guilty of that offense. The final judgment lists the offense
as "sex abuse continuous chld/14," but lists the statute for that offense as "22.021 Penal
Code." Section 22.021 of the Texas Penal Code relates to the offense of aggravated sexual
assault. See PENAL § 22.021. However, section 21.02 of Texas Penal Code relates to the
offense of continuous sexual abuse of child. See PENAL § 21.02.

An appellate court has the authority to modify an incorrect judgment to make the record
speak the truth when it has the necessary information to do so. See R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v.
State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We conclude the trial
court's final judgment should be modified to state the correct statute for the offense. See R.
APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30. Accordingly,
the final judgment should be modified to state the statute for the offense is "21.02 Penal
Code."

VIII. CONCLUSION
The evidence is sufficient to support Le's conviction. Le failed to preserve for appellate
review his complaints that the trial court erred when it denied his motion for mistrial and
overruled Le's request for a limiting instruction for the jury to disregard evidence that was
subject to a motion in limine. The trial court did not err when it overruled Le's objections to
the designation of the forensic interviewer as the outcry witness, the admission of the video-
recorded forensic interview, the inclusion of lesser-included offenses in the jury charge, and
the jury charge because it did not require the State to elect the manner and means of the
offense it pursued. Further, we modify the judgment to reflect the correct statute for the
offense.

The trial court's final judgment is affirmed as modified.

JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as
follows:

The portion of the judgment that lists the statute for the offense as "22.021 Penal Code" is
modified to state the statute for the offense is "21.02 Penal Code."

As REFORMED, the judgment is AFFIRMED.

[1] Le urges us to follow the decision of the Eastland Court of Appeals in Michell v. State, 381 S.W.3d 554 (Tex. App.-
Eastland 2012, no pet.) and thereby conclude the trial court erred when it submitted a charge that included the lesser-
included offenses. Also, Le asserts the submission of the lesser-included offenses in the charge denies him due
process. However, Michell is inapposite. In that case, the court of appeals expressly concluded the record included
"no evidence . . . that would permit a jury rationally to conclude that, if appellant is guilty, she is guilty only of a lesser
included offense." Id. at 365. Unlike the case before the Eastland court of appeals, we have expressly determined
above, that the record before us contains some evidence to support the submission of the lesser-included offenses.
As to the "due process" contention, Le does not elaborate nor cite case law to support such a position. There is
nothing for us to review in that regard.
Brandan Lee Eakright, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
No. 85A02-1710-CR-2577.

Court of Appeals of Indiana.

April 30, 2018.

Appeal from the Wabash Circuit Court. The Honorable Robert R. McCallen, III,
Judge, Trial Court Cause No. 85C01-1501-F5-48.

Justin R. Wall, Wall Legal Services, Huntington, Indiana, Attorney for Appellant.

Curtis T. Hill, Jr., Attorney General of Indiana, Lee M. Stoy, Jr., Deputy Attorney
General, Indianapolis, Indiana, Attorneys for Appellee.

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be
regarded as precedent or cited before any court except for the purpose of
establishing the defense of res judicata, collateral estoppel, or the law of the case.

MEMORANDUM DECISION
BARNES, Judge.

Case Summary
Brandan L. Eakright appeals his conviction and sentence for Level 5 felony sexual
misconduct with a minor. We affirm.

Issues
The issues before us are:

I. whether the evidence is sufficient to sustain his conviction for Level 5 felony
sexual misconduct with a minor; and
II. whether his sentence is inappropriate.

Facts
On New Year's Eve 2014, fourteen-year-old A.M. asked her parents to let her visit
her great-grandmother in Wabash; they agreed. Once there, A.M. asked her great-
grandmother for permission to visit Courtney Erwin, her twenty-three-year-old friend,
whose children A.M. occasionally baby-sat. Courtney often bought alcohol for A.M.
and drank with her. Late that evening, Courtney picked A.M. up, purchased alcohol,
and drove to her trailer so they could drink with Courtney's boyfriend, Jared Eakright
("Jared"). Jared was Brandan Eakright's (Eakright) cousin. Jared invited Eakright to
join them, and Eakright arrived before midnight.

A.M. had met Eakright once before in the Fall of 2014. Eakright was twenty-nine
years old, 6' 6", and weighed 200 pounds. That night, A.M., who was 4' 9" inches tall
and weighed eighty-five pounds, drank more alcohol than she had ever consumed
before. The foursome drank, played cards, and retired to the living room. They drank
"[e]nough that [they] were [all] drunk." Tr. Vol. II p. 220.

Jared and Courtney eventually went to bed, leaving A.M. and Eakright on the living
room sofa with a blanket over them. Eakright placed A.M.'s hand on his penis over
his clothing. A.M. "froze." Id. at 144. Eakright then kissed her mouth, fondled her
bare buttocks, and rubbed her vagina. Each time, A.M. told Eakright to stop. At least
three or four times, he would briefly stop, only to resume trying to kiss her and
touching her buttocks and vagina. A.M. eventually moved to the other end of the
sofa. Eakright put on his shoes, said he was sorry, and left.

A.M. went into Courtney's bedroom and shook Jared until he told her the address of
the trailer. She did not tell Jared what his cousin had done. Afraid to call her parents,
who thought she was with her great-grandmother and not out drinking with adults,
A.M. called her friend, Payton Helton, in Peru. She was crying so much that Payton
could not understand her. He hung up and sent her a text. A.M. replied that "a guy
was touching [her]." Id. at 172. Payton drove to Wabash to pick A.M. up. A.M. then
called her friend Bethany Caldwell's parents. "[A.M.] was upset, crying, [and] asked
if she could come to the [Caldwells'] house" because she "needed somewhere to go
now." Tr. Vol. III p. 30. Payton drove A.M. to the Caldwells' house, and they called
her parents and the police.

On January 1, 2015, North Manchester Police Department Chief James Kirk,


formerly a detective-captain with the Wabash Police Department, investigated the
allegation. He interviewed A.M. and accompanied her and her parents to the Fort
Wayne Sexual Assault Center, where A.M. underwent a rape kit examination. On
January 5, 2015, Chief Kirk interviewed Eakright, who made a videotaped
confession; however, Eakright later recanted, claiming his confession was coerced
and prompted by fear and exhaustion.

On January 23, 2015, the State charged Eakright with Level 5 felony sexual
misconduct with a minor and Class A misdemeanor contributing to the delinquency
of a minor. He was tried by a jury on February 9, 2016, resulting in a partial mistrial
when the jury found Eakright not guilty of contributing to the delinquency of a minor,
but deadlocked as to the Level 5 felony charge.
He was retried as to the Level 5 felony charge on September 26, 2017. During the
State's case-in-chief, A.M. testified to the foregoing facts. Courtney testified that she
woke at approximately 6:00 A.M. on New Year's Day and was "just really shocked"
to "find this note" from A.M., and "neither one of them [Eakright or A.M.] there." Tr.
Vol. II p. 198-99. She testified further that she "thought something had happened to
[A.M.] . . . . [S]he had never done that before." Id. at 199. Bethany's mother, Brandi
Caldwell, testified that she called the police and A.M.'s parents after a "frantic" and
"bawling" A.M. arrived at her house on New Year's Day 2015. Tr. Vol. III p. 32.

Chief Kirk testified that he interviewed Eakright. The jury watched the video-
recording of Eakright's interview, in which Eakright confessed to putting his hand in
A.M.'s pants and rubbing her vagina and buttocks. Chief Kirk testified that during the
interview, "[Eakright] started thinking about what he did," and began to cry. Tr. Vol.
III p. 12. Meredith Livingston, forensic DNA analyst at the Indiana State Police
laboratory, testified that DNA evidence retrieved from A.M.'s face, cheek, and lips
was "consistent with . . . Brandan Eakright" such that "[he] and all of his male
paternal relatives cannot be excluded as potential" contributors. Id. at 242.

During his testimony, Eakright denied kissing A.M. or touching her buttocks and
vagina. On direct examination, the following colloquy ensued:

Q: Okay. We saw video of your interview with Detective Kirk. Was that pretty
accurate in terms of what happened?
A: Yeah.
Q: Ultimately, you indicate you don't remember what happened and then seem to
indicate, yes, I kissed her, yes, I rubbed her vagina. You saw that, right?
A: Yeah, I seen [sic] it.
Q: Why did you say that?
A: I was in shock. I didn't know what to think. I didn't know what to say. . . . I never
dealt with anything like that before. And I didn't know how to handle it.

Id. at 87-88. At the close of the evidence, the jury returned a guilty verdict.

At Eakright's sentencing hearing on October 23, 2017, the trial court found no
aggravating circumstances and, after considering Eakright's lack of criminal history,
concluded that factor was not mitigating. The trial court ordered Eakright to serve
three years in the Department of Correction with six months suspended to probation;
he now appeals.

Analysis
I. Sufficiency of the Evidence
Eakright argues that the evidence is insufficient to sustain his conviction because
A.M.'s testimony was incredibly dubious. He argues,

A.M. is the only single witness to provide even a shadow of testimony that implicates
Eakright of committing the crime as alleged. Her testimony is unsupported by any
circumstantial evidence, other than potentially inconclusive DNA evidence, or by
testimony of any other witness who heard or saw the alleged event occurring.
Additionally, A.M.'s testimony was contradictory and convoluted at time and her
recollection . . . was clearly clouded by her intoxication and fueled by potential
criminal mischief and/or punishment that she could have faced.

Appellant's Br. p. 24. When reviewing the sufficiency of the evidence needed to
support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). "We consider only the
evidence supporting the judgment and any reasonable inferences that can be drawn
from such evidence." Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant was
guilty beyond a reasonable doubt. Id.

To convict Eakright of Level 5 felony sexual misconduct with a minor, the State was
required to prove that he, "a person at least eighteen (18) years of age," did
"perform[] or submit[] to sexual intercourse or other sexual conduct (as defined in IC
35-31.5-2-221.5)" with A.M., who was "a child at least fourteen (14) years of age but
less than sixteen (16) years of age." See Ind. Code § 35-42-4-9(a).

Under the incredible dubiosity rule, we may "impinge on the jury's responsibility to
judge the credibility of the witness only when it has confronted `inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony of
incredible dubiosity.'" Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App.
2012)(quoting Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind. 1981)), reh'g denied,
trans. denied. In Indiana, the rule of incredible dubiosity requires that there be: "1) a
sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the
result of coercion; and 3) a complete absence of circumstantial evidence." Moore v.
State, 27 N.E.3d 749, 756 (Ind. 2015). This rule is rarely applicable and should be
applied only if the alleged victim's "testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it." See Rose v. State, 36
N.E.3d 1055, 1061 (Ind. Ct. App. 2015). The witness's testimony must run "counter
to human experience." Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000).

Eakright contends that the incredible dubiosity rule applies because: ultimately, the
DNA sampling and testing could not prove, nor disprove, that Eakright committed
the alleged act. At best, . . . Eakright could not be excluded, nor could any of his
male relatives be excluded[;]

*****
[H]is `confession' [wa]sn't a true confession and was induced by the nature of the
circumstances of the interview, the unfamiliar surroundings, the pressure from Chief
Kirk, lack of sleep and flat out being scared and just wanting to get the interview
process over with[; and]
*****
[T]hrough much of A.M.'s testimony, she cannot recall a lot of the facts of what
happened and undertook no actions . . . to have prevented touching or at least to
have stopped the touching as alleged. . . . [And] A.M.'s actions and statement during
that course of the night seem very much to be convoluted and inconsistent with
someone who has allegedly been touched inappropriately[.]
*****
A.M. had started . . . that night by lying to her mother, obtaining money for alcohol
from her great-grandmother, under false pretenses, going to a residence that she
did not have permission to go to, consuming alcohol underage with adults,
consuming such a quantify [sic] of alcohol sufficient to cause her to vomit. . . . A.M.'s
version of events that night was concocted to . . . get her out of potential criminal
trouble, or . . . trouble with her mother and/or great-grandmother.

Appellant's Br. p. 19, 20, 22, 24.

None of Eakright's arguments render A.M.'s testimony inherently improbable or


incredibly dubious. A.M. was the only eyewitness to the underlying sexual acts, as is
common in cases involving sex crimes. The record shows her to be a consistent and
confident witness. She testified unequivocally that Eakright kissed her and tried to
kiss her, placed her hand on his penis over his clothing, touched her buttocks, and
rubbed her vagina. She also testified that she repeatedly told him to stop, but he
repeated his actions three or four times.

In invoking the incredible dubiosity rule, Eakright seizes upon the fact that A.M.
cannot recall whether he digitally penetrated her vagina. Given her slight eighty-five-
pound frame, her heavy alcohol consumption that night, and her testimony that she
"passed out" at one point, it is not inherently improbable that she might not recall
Eakright's every action against her. See Tr. Vol. II p. 145. Eakright also makes much
of the fact that A.M. did not immediately wake Courtney and Jared or call her
parents to report his sexual misconduct. It is not inconsistent with the laws of human
nature or experience that A.M. was reluctant to report Eakright to his cousin or was
afraid to call her parents after a night of underage drinking. The jury was free to
decide whether "to believe or disbelieve" A.M. See Murray v. State,761 N.E.2d 406,
409 (Ind. 2002). Additionally, it is not uncommon for sexual abuse victims to be
reluctant to report, to feel shameful and alone, or to be traumatized into silence by
abuse.[1]

Nor is there an absence of circumstantial evidence in this case. Circumstantial


evidence alone can sustain a verdict "if that circumstantial evidence supports a
reasonable inference of guilt." Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000). Our
Indiana Supreme Court has also held "where there is circumstantial evidence of an
individual's guilt, reliance on the incredible dubiosity rule is misplaced." Moore, 27
N.E.3d at 759. A.M. testified that Eakright kissed and tried to kiss her as he fondled
her. The State presented evidence that DNA evidence collected from A.M.'s face
was consistent with Eakright's profile. While not conclusive, the State's DNA
evidence was certainly corroborative.

The foregoing facts are not so counter to human nature and experience that a
reasonable jury could not have believed A.M.'s account. Nor is A.M.'s testimony "so
incredibly dubious or inherently improbable that no reasonable person could believe
it." See Rose, 36 N.E.3d at 1061. We conclude that the incredible dubiosity rule is
inapplicable here and decline Eakright's invitation to invade the province of the jury
by reweighing the evidence and reassessing witness credibility. See Feyka v.
State, 972 N.E.2d 387, 394 (Ind. Ct. App. 2012). As a conviction of child molesting
may rest on the uncorroborated testimony of the victim, we hold the evidence was
sufficient for the jury to find Eakright guilty of sexual misconduct with a
minor. See Young, 973 N.E.2d at 1227.

II. Sentence
Eakright argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)
provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court's decision, we find that the sentence is inappropriate
in light of the nature of the offenses and the character of the offender. When
considering whether a sentence is inappropriate, we need not be "extremely"
deferential to a trial court's sentencing decision. Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). Still, we must give due consideration to that
decision. Id. We also understand and recognize the unique perspective a trial court
brings to its sentencing decisions. Id. Under this rule, the burden is on the defendant
to persuade the appellate court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).

The principal role of Rule 7(B) review "should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived `correct'
result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We
"should focus on the forest—the aggregate sentence—rather than the trees—
consecutive or concurrent, number of counts, or length of the sentence on any
individual count." Id. When reviewing the appropriateness of a sentence under Rule
7(B), we may consider all aspects of the penal consequences imposed by the trial
court in sentencing the defendant, including whether a portion of the sentence was
suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

Eakright faced a term of one to six years, with an advisory sentence of three years.
Ind. Code § 35-50-2-6(b). The trial court here found no aggravating or mitigating
circumstances and imposed the advisory, three-year sentence with two and one-half
years executed and six months suspended to probation.

Eakright argues that "he qualifies for a reduced sentence" because the nature of the
offense "is not particularly egregious due to the nature and location of the touch[ing]
and [because there was allegedly] no penetration of A.M.'s private areas"; "the
touching occurred over a short period of time on one evening"; alcohol was
"potentially a driving factor"; and "A.M. appears to have had no long-term injuries,"
as evidenced by her "apparent success in school" and her ability to juggle being a
high school senior, a cheerleader, and working a job. Appellant's Br. 27, 28. We
disagree.

Regarding the nature of the offense, twenty-nine-year-old Eakright—who was 6'6"


and approximately 200 pounds—engaged in sexual conduct with and performed
sexual acts upon A.M., a fourteen-year-old child, who was 4'9", weighed eighty-five
pounds, and was acutely intoxicated. Undeterred by her protests, he kissed and
tried to kiss her, placed her hand on his penis over his clothing, fondled her bare
buttocks, and rubbed her vagina multiple times.

As for Eakright's character, despite his conviction by the jury, he failed to show
remorse at his sentencing. He offers as evidence of his good character that he has
no prior criminal history. We are not persuaded and regard the references in his brief
to A.M.'s intoxication; her inability to recall "a lot . . . of what happened"; and her
"undert[aking] no actions . . . to have prevented or . . . stopped the touching" as
suggesting his belief that A.M., rather than himself, is accountable for their
inappropriate interaction. See Appellant's Br. p. 22. We do not find, under the
circumstances before us, that his character renders his advisory sentence
inappropriate.

Conclusion
The State presented sufficient evidence to support Eakright's conviction of Level 5
felony sexual misconduct with a minor. His sentence is not inappropriate.

Affirmed.
Najam, J., and Mathias, J., concur.

[1] After the underlying sexual abuse, a counselor diagnosed A.M. with post-traumatic stress disorder
("PTSD"). See Tr. Vol. III p. 148.
2018-Ohio-1651

STATE OF OHIO, Plaintiff-Appellee,


v.
AKEEM DAVIS, Defendant-Appellant.
Appellate Case No. 2017-CA-45.

Court of Appeals of Ohio, Second District, Clark County.

Rendered on April 27, 2018.

Criminal Appeal from Common Pleas Court Trial Court Case No. 2011-CR-261.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney,


Clark County Prosecutor's Office, 50 East Columbia Street, Fourth Floor, Springfield,
Ohio Attorney for Plaintiff-Appellee.

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite
200, Urbana, Ohio 43078, Attorney for Defendant-Appellant.

OPINION
TUCKER, J.

{¶ 1} Defendant-appellant Akeem Davis appeals from his conviction and sentence


for kidnapping and rape. He contends that the trial court erred by failing to merge the
convictions for purposes of sentencing. He further contends that the trial court
abused its discretion by permitting the State to use his notice of alibi for the purpose
of impeachment and by permitting the introduction of prior bad acts testimony.
Finally, he claims that the trial court abused its discretion by permitting victim impact
testimony during the guilt phase of the trial.

{¶ 2} We conclude that the trial court did not abuse its discretion by permitting the
State to question Davis regarding his notice of alibi. The victim impact testimony,
though improper, was harmless. We also conclude that Davis invited any error
regarding the introduction of any prior bad act. Finally, we conclude that the trial
court did err in sentencing as the convictions for rape and kidnapping should have
been merged.

{¶ 3} Accordingly, the judgment of the trial court is reversed and remanded for
resentencing. The judgment is affirmed in all other respects.

I. Facts and Procedural History


{¶ 4} On April 25, 2011, Davis was indicted for the rape and kidnapping of twelve
year old N.L. A warrant on the indictment was issued. Davis was arrested in
Minnesota and returned to Ohio on April 29, 2011. Thereafter, defense counsel was
appointed and discovery was conducted. Appointed counsel filed a notice of alibi on
July 6, 2011. Davis was released from jail on his own recognizance on July 18,
2011. On August 2, 2011, Davis filed a motion to appoint a forensic expert witness
for the defense. The motion was sustained.

{¶ 5} On October 11, 2011, following Davis's failure to appear at a scheduled pre-


trial conference, the trial court issued a capias for his arrest. Davis was arrested in
November 2016 after being located in Indiana.

{¶ 6} A jury trial was conducted in April 2017 during which the following facts were
adduced. L.P. was involved in an intimate relationship with Davis in 2011, but Davis
did not live with her. L.P. was a friend of the victim's mother, T.W., and L.P.'s eldest
child, L.P.2, was a friend of the victim.[1] On March 12, 2011, the two girls, L.P.2 and
N.L., were left alone in the Springfield residence while their mothers went to a
friend's home.

{¶ 7} At some point in the evening Davis came to the home, but the girls did not
permit him to enter. When Davis returned later, he was permitted to enter the
residence. Davis asked for a glass of water and then sat down on the couch. After
drinking his water, Davis told L.P.2 that he wanted to play a game. He then
proceeded to grab L.P.2 who pushed him away. The button and zipper on L.P.2's
pants were broken during the encounter. Davis then grabbed N.L. by the arm and
pulled her down the hallway into a bathroom. He shut and locked the door. He then
removed N.L.'s pants and underwear and seated her upon the counter. Davis twice
partially inserted his penis into N.L.'s vagina. After he pulled his penis out, N.L.
observed "white stuff come out." Afterward, Davis told the victim not to tell anyone
what had occurred. He then left the home. During the commission of the rape, L.P.2
was outside the bathroom, banging on the door and telling Davis not to hurt N.L.
She then went to find a tool to unlock the door. When she returned, Davis was gone.
N.L. was crying, and told L.P.2, "It hurts."

{¶ 8} The two girls then ran up the street to find their mothers. N.L. was hysterical,
and told her mother that Davis had raped her. N.L. was ultimately transported to a
hospital, where a sexual assault nurse examiner noted vaginal tenderness and
redness. The nurse collected N.L.'s clothes and took swabs from her vagina and
anal area. N.L. was shown a photographic array lineup, and, upon review, she
identified Davis's photograph. The clothing and swabs were tested by the Ohio
Bureau of Criminal Investigations as well as the Miami Valley Regional Crime
Laboratory. A sperm cell was discovered on N.L.'s underwear with the DNA testing
establishing that Davis' DNA is consistent with the sperm cell's DNA.
{¶ 9} The jury found Davis guilty on both charges. Thereafter, the trial court
sentenced him to "life in prison with parole eligibility after ten years for rape and life
in prison with parole eligibility after fifteen years for kidnapping." Dkt. 51. The trial
court further ordered the two sentences to run consecutively to one another for a
total of "two life sentences with parole eligibility after twenty-five years." Id. Davis
appeals.

II. Merger Analysis


{¶ 10} The first and second assignments of error asserted by Davis state:

THE EVIDENCE ON THE CHARGE OF KIDNAPPING WAS INSUFFICIENT AS A


MATTER OF LAW TO ESTABLISH AN OFFENSE SEPARATE FROM RAPE. THE
CONVICTIONS FOR BOTH RAPE AND KIDNAPPING VIOLATE DEFENDANT'S
RIGHT TO BE FREE FROM DOUBLE JEOPARDY.

{¶ 11} Davis contends that the rape and kidnapping counts are allied offenses that
should have been merged for purposes of sentencing. He further contends that the
failure to merge the offenses subjected him to double jeopardy for the same offense.

{¶ 12} We first note that Davis did not ask the trial court to merge the convictions,
nor did he object to the trial court's decision not to merge. Accordingly, we review his
claims under a plain error standard. State v. Setty, 2d Dist. Clark No. 2017-CA-28,
2017-Ohio-9059, ¶ 16, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. "Under this review, the trial court's judgment is not reversible
`unless [the error] affected the outcome of the proceeding and reversal is necessary
to correct a manifest miscarriage of justice.'" Id., quoting Rogers at ¶ 3.

{¶ 13} Davis was convicted of rape in violation of R.C. 2907.02(A)(1)(b). That statute
proscribes engaging in sexual conduct with a person less than thirteen years of age,
whether or not the offender knows the age of the other person. Sexual conduct is
defined as "vaginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and, without privilege to
do so, the insertion, however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse." R.C.
2907.01(A).

{¶ 14} Davis was also convicted of kidnapping in violation of R.C. 2905.01(A)(4)


which prohibits a person from restraining another person, or removing another
person from where they are found, for the purpose of engaging in sexual activity.
Sexual activity is defined to include sexual conduct. R.C. 2907.01(C).
{¶ 15} "The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution protect criminal
defendants against multiple prosecutions for the same offense." State v. Brewer,121
Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14. In Ohio, R.C. 2941.25
codifies the constitutional protections against double jeopardy. State v. Ollison,2016-
Ohio-8269, 78 N.E.3d 254, ¶ 33 (10th Dist.). According to R.C. 2941.25(A), "[w]here
the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one." However, "[w]here
the defendant's conduct constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the same or similar kind
committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be
convicted of all of them." R.C. 2941.25(B).

{¶ 16} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio
Supreme Court held that if a defendant's conduct supports multiple offenses, the
defendant can be convicted of all of the offenses if any one of the following is true:
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows the
offenses were committed separately, or (3) the conduct shows the offenses were
committed with separate animus. Id. at paragraph three of the syllabus, citing R.C.
2941.25(B). Two or more offenses are of dissimilar import within the meaning of
R.C. 2941.25(B) "when the defendant's conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable." Id. at paragraph two of the syllabus.

{¶ 17} The Ohio Supreme Court has acknowledged that "implicit within every forcible
rape * * * is a kidnapping" because the victim's liberty is restrained during the act of
forcible rape. State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979).
Thus, the court provided the following guidelines for determining whether kidnapping
and rape were committed with a separate animus:

(a) Where the restraint or movement of the victim is merely incidental to a separate
underlying crime, there exists no separate animus sufficient to sustain separate
convictions; however, where the restraint is prolonged, the confinement is secretive,
or the movement is substantial so as to demonstrate a significance independent of
the other offense, there exists a separate animus as to each offense sufficient to
support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each offense sufficient to
support separate convictions.

Id. at syllabus.[2]
{¶ 18} Upon review of the evidence presented at trial, we find the offense of
kidnapping was an offense of similar import to the rape offense. The kidnapping
statute under which Davis was charged requires the purpose to engage in sexual
activity. Sexual activity includes sexual conduct as proscribed within the rape statute
under which Davis was charged. Thus, both statutes can be construed to prohibit
the same conduct. Further, the movement of N.L. from the couch to the bathroom
was accomplished for the purpose of raping N.L., and it did not cause separate,
identifiable harm. In addition, the distance between the couch and the bathroom is
insignificant, and N.L.'s restraint lasted only for the duration of the rape. The restraint
and confinement associated with the rape itself did occur behind a locked door, but,
given L.P.'s presence outside the bathroom door, it cannot be said that N.L.'s
confinement was secretive, nor can it be concluded that locking the bathroom door
increased N.L.'s risk of harm associated with the rape. In short, the "restraint and
movement of [N.L.] had no significance apart from facilitating the rape." State v.
Mpanurwa, ¶ 24. Thus, we conclude that the record demonstrates plain error.

{¶ 19} Accordingly the first and second assignments of error are sustained.

III. Consecutive Sentences


{¶ 20} Davis's third assignment of error states:

THE TRIAL COURT ERRED IN ORDERING CONSECUTIVE SENTENCES FOR


RAPE AND KIDNAPPING.

{¶ 21} Davis contends that the trial court erred in ordering the sentences for the rape
and kidnapping convictions to run consecutively to one another. Given our
disposition of the merger issue in Part II, above, we conclude that this assignment of
error has been rendered moot.

IV. Alibi Testimony


{¶ 22} Davis's fourth assignment of error is as follows:

THE TRIAL COURT ERRED IN PERMITTING TESTIMONY ABOUT


DEFENDANT'S ALIBI.

{¶ 23} Davis claims that the trial court acted unreasonably by permitting the State to
use the filed and not withdrawn notice of alibi for impeachment purposes as the
notice was submitted years before trial by previous trial counsel. We do not believe,
on this record, that the trial court erred by allowing the State to cross-examine Davis
regarding the notice of alibi he filed but did not pursue. However, if erroneous, the
error was harmless.
{¶ 24} The fourth assignment of error is overruled.

V. Victim Impact Testimony


{¶ 25} Davis's fifth assignment of error provides:

THE TRIAL COURT ERRED IN PERMITTING VICTIM IMPACT TESTIMONY


DURING TRIAL.

{¶ 26} Davis claims the trial court erred by permitting victim-impact testimony during
the guilt phase of his trial.

{¶ 27} As a general rule, "victim impact evidence is excluded because it is irrelevant


and immaterial to the guilt or innocence of the accused; it principally serves to
inflame the passion of the jury." State v. Eisermann, 8th Dist. Cuyahoga No. 100967,
2015-Ohio-591, ¶ 36. However, testimony depicting "both the circumstances
surrounding the commission of the [offense] and also the impact of the [offense on
the victim's family] may be admissible during both the guilt and the sentencing
phases." State v. Fautenberry, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995).

{¶ 28} Davis specifically refers to the testimony of both N.L. and her mother
regarding the impact of the rape upon N.L., including the fact that N.L. has been
undergoing counseling since the rape. Both women also testified that N.L. began
getting into trouble at school due to the trauma caused by the rape. They also
testified that she had panic attack reactions whenever she smelled cologne similar
to that worn by Davis at the time of the rape. Davis did not object to the complained
of testimony. Thus, we are limited to a plain error review.

{¶ 29} After reviewing the record, we conclude that the testimony by N.L. and her
mother did nothing to assist the trier-of-fact in determining Davis's guilt, and that the
admission of such evidence was error as it did not relate to the circumstances of the
offense. However, the testimony at issue is set forth on less than six pages of an
over 500-page transcript, and the record contains overwhelming evidence of Davis's
guilt. Thus, we find the error harmless.

{¶ 30} Accordingly, the fifth assignment of error is overruled.

VI. Other Acts Testimony


{¶ 31} The sixth assignment of error set forth by Davis states:

THE TRIAL COURT ERRED IN PERMITTING OTHER ACTS TESTIMONY


{¶ 32} Davis argues that the trial court erred by permitting T.W. to testify that Davis
and she had smoked marijuana together prior to the instant offense.

{¶ 33} The evidence to which Davis cites was not introduced by the State. Instead,
T.W. made the statement about smoking marijuana with Davis during cross-
examination by defense counsel. Specifically, when counsel asked T.W. whether
she and Davis had a romantic relationship, she replied that they "smoked weed
together after I got off of work. That was about it." Tr. p. 132-133.

{¶ 34} Thus, any error was invited as it was elicited by defense counsel. The invited
error doctrine prohibits a party who induces error in the trial court from taking
advantage of such error on appeal. State v. Lenoir, 2d Dist. Montgomery No. 22239,
2008-Ohio-1984, ¶ 24. Defense counsel was, in this case, responsible for the error.
Thus, we conclude this argument lacks merit.

{¶ 35} The sixth assignment of error is overruled.

VII. Conclusion
{¶ 36} Davis's first and second assignments of error being sustained, the judgment
of the trial court is reversed and remanded with instructions to merge the convictions
for rape and kidnapping and to resentence Davis accordingly.[3] The judgment is
affirmed in all other respects.

DONOVAN, J. and FROELICH, J., concur.

[1] For ease of reference, L.P.'s daughter will be referred to as L.P.2.

[2] "Although Logan predates Ruff, Ohio courts continue to apply the guidelines set forth in Logan to
determine whether kidnapping and other offenses were committed with a separate animus, in accordance
with the third prong of the Ruff test." State v. Lundy, 8th Dist. Cuyahoga No. 105117, 2017-Ohio-9155, ¶
26. We recently accepted this conclusion in State v. Mpanurwa, 2017-Ohio-8911, ___ N.E.3d ___ (2d
Dist.).

[3] Although not raised by Davis, and rendered moot by this decision, we note that the sentence imposed
in this case does not comport with our holding in State v. Duncan, 2d Dist. Clark No. 2016-CA-77, 2017-
Ohio-8103.

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