2018 KJ 0463
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Jane Hogan Hammond, Louisiana Counsel for Defendant-Appellant E. S.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 9775 JJ, DIVISION E, PARISH OF ST. TAMMANY
STATE OF LOUISIANA HONORABLE WILLIAM J. BURRIS, JUDGE
HONORABLE SCOTT GARDNER, JUDGE Warren L. Montgomery
Assistant District Attorney
Covington, Louisiana Counsel for Appellee
State of Louisiana Jane Hogan
Hammond, Louisiana Counsel for Defendant-Appellant
E. S. BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
Disposition: ADJUDICATION AND DISPOSITION AFFIRMED.
A child, identified herein as E.S., was alleged to be delinquent according to a petition filed by the State on May 16, 2017, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of first degree rape when the victim is under the age of thirteen years, a violation of La. R.S. 14:42(A)(4). The child entered a denial as to the allegation. At an adjudication hearing on October 4, 2017, E.S. was adjudicated delinquent as alleged in the petition. At a disposition hearing held on December 28, 2017, the juvenile court placed E.S. in the custody of the Office of Juvenile Justice (OJJ) in secure care until he attains the age of twenty-one years. On appeal, E.S. assigns error to the sufficiency of the evidence, the exclusion of Dr. Rafael Salcedo's testimony in the absence of a Daubert hearing, the qualification of Dr. Barbara Hebert as an expert witness, and the constitutionality and legality of the disposition. After a thorough review of the record and the assignments of error, we affirm the adjudication and disposition.
As stated in the amended petition, E.S.'s date of birth is May 29, 2002. The child was between thirteen and fourteen years of age at the time of the alleged offense. Thus, E.S. is a minor child and initials will be used throughout this opinion to ensure his confidentiality. See La. Uniform Rules of the Courts of Appeal, Rule 5-2.
On October 31, 2017, the juvenile court denied in part and granted in part a motion to vacate adjudication, finding that La. Ch.C. art. 897.1(A) would not be applicable to the disposition based on a lack of notice by the State in the petition that the child would be sentenced pursuant to the provision. On November 7, 2017, this court granted the State's writ application, stating,
The juvenile court's October 31, 2017 oral ruling granting in part the juvenile's motion to vacate the adjudication of delinquency is reversed, and this matter is remanded for compliance with [La. Ch.C. art. 897.1(A)] in rendering its judgment of disposition. The October 31, 2017 hearing transcript reflects that the court found that the juvenile was both thirteen and fourteen when he committed the first degree rape. Therefore, the mandatory language of [La. Ch.C. art. 897.1(A)] is applicable to this matter.The Louisiana Supreme Court denied writs. State in Interest of E.S., 2017-1541 (La. App. 1st Cir. 11/7/17), 2017 WL 5172629 (unpublished), writ denied, 2017-1904 (La. 12/5/17), 231 So.3d 19.
STATEMENT OF FACTS
In early February 2017, Detective Scott Davis, an investigator for the St. Tammany Parish Sheriff's Office, began investigating a complaint of sexual assault. In order to schedule a forensic interview of N.H., the alleged victim who was five years old at that time, Detective Davis initially made arrangements with the complainant, the victim's mother, C.H. During the forensic interview at the Children's Advocacy Center (C.A.C.) in Covington, on February 8, 2017, the victim stated, "he [E.S.] told me to ... to suck his missy and I don't [sic], I just did it once ... actually I did it lots of times." When asked where this took place, the victim stated that it happened at E.S.'s house in his bedroom. She identified and circled the penis of an anatomical drawing of a boy, verbally describing it as a "pointy thing." With spelling assistance, the victim also provided, at her own initiation, a written statement as follows, "I sucked [E.S.]'s misy [sic]." Detective Davis observed the C.A.C. interview in a separate room on a remote television. The victim was also evaluated at the Audrey Hepburn Care Center in New Orleans where she made consistent disclosures. Based on the victim's statements during the interviews and other information provided, Detective Davis determined that the victim's initial disclosure was made to her grandfather, and that the alleged incidents took place at E.S.'s residence in St. Tammany Parish between November 2015 and March 2016. The petition indicates that the incidents took place on or about November 1, 2015 through December 31, 2016.
The victim's date of birth is January 23, 2012. Herein, we will identify the victim and immediate family by initials only. See La. R.S. 46:1844(W).
The word "missy" was the victim's alternate word for penis.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, E.S. first argues that the evidence adduced at the adjudication hearing was insufficient to prove the allegation of first degree rape. E.S. specifically contends that the State's case was limited to inconsistent statements by the victim. E.S. notes that the victim did not mention him during the interview until she was directly asked about him. He notes that the victim was inconsistent during the interview as to how many times the act occurred, and as to whether she told her grandfather about the acts. E.S. adds that the victim randomly used the number twenty during the interview to describe the number of days that her father had been away, the number of days she had been at her new school, and again to ultimately pinpoint the number of times that the acts in question occurred. He further contends that there was no evidence of a change in the victim's behavior to corroborate the claim of sexual abuse and that he did not have a history of sexual misconduct. E.S. argues that the evidence failed to exclude every reasonable hypothesis of innocence.
In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T., 95-2187 (La. App. 1st Cir. 6/28/96), 677 So.2d 1071, 1074. In juvenile proceedings, the scope of review of this court extends to both law and fact. We must, therefore, decide if the juvenile court judge was clearly wrong in his determination that the child was proven guilty beyond a reasonable doubt. State in Interest of Giangrosso , 385 So.2d 471, 476 (La. App. 1st Cir. 1980), affirmed, 395 So.2d 709 (La. 1981). The Supreme Court affirmed this court's decision in Giangrosso , concluding that a rational trier of fact could have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and State in Interest of Batiste , 367 So.2d 784, 788 (La. 1979). See State in Interest of Giangrosso , 395 So.2d 709, 714 (La. 1981); In Interest of L.C., 96-2511 (La. App. 1st Cir. 6/20/97), 696 So.2d 668, 670.
Thus, on appeal the standard of review for sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, i.e., viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt. Jackson , 443 U.S. at 319, 99 S.Ct. at 2789; see also La. C.Cr.P. art. 821(B); State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). It is well settled that, if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence or prove the commission of the offense. State v. Lilly , 2012-0008 (La. App. 1st Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386.
Because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to specifically determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La. App. 1st Cir. 11/07/97), 704 So.2d 786, 789-90. In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. State in Interest of Wilkerson , 542 So.2d 577, 581 (La. App. 1st Cir. 1989). The Jackson standard is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State in Interest of D.F., 2008-0182 (La. App. 1st Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 2008-1540 (La. 3/27/09), 5 So.3d 138.
La. R.S. 14:41(A) defines "rape" as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. La. R.S. 14:42 provides, in pertinent part:
A. First degree rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* * *
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
First degree rape is a general intent crime. State in Interest of L.W., 2009-1898 (La. App. 1st Cir. 6/11/10), 40 So.3d 1220, 1224, writ denied, 2010-1642 (La. 9/3/10), 44 So.3d 708. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).
The C.A.C. forensic interview was conducted by Dr. Barbara Hebert, who was qualified at the adjudication hearing as an expert in counseling and forensic interviewing. Dr. Hebert initially determined that N.H., who was five years old at the time of the interview, knew the difference between a lie and the truth. At one point, N.H. indicated that she was only pretending after telling a story about a rat trying to kiss her mother, adding though that she was being truthful about a rat being in the house. The victim repeatedly strayed from the topic, described to her by Dr. Hebert early on as "safety." She also stated that she wanted to leave more than once. Dr. Hebert ultimately began asking such questions as whether there was anyone who was not very nice to her and whether her parents and/or grandparents were worried about anything. After the victim described spats with children she knew, mainly from school, Dr. Hebert later asked the victim if she knew E.S., and she in part responded that E.S. was nice. She stated that E.S. would allow her to play in an outdoor kitchen. Dr. Hebert then asked the victim if her mother or grandfather were worried about E.S., or whether she ever told her mother or grandmother anything about him. The victim responded that she told her grandfather something about E.S., but did not initially want to elaborate, stating, "That's inappropriate." She further stated, "This is really yucky."
After Dr. Hebert reassured her that it would be okay to talk about what happened with E.S., the victim stated, "Well, he told me to ... to suck his missy." As stated above, the victim initially denied doing so before stating that she only did so once. She then added that she actually did so "lots of times," which she subsequently quantified as "twenty times." In addition to pointing out the specific body part that she sucked, the victim confirmed that she used her mouth to do so, stating that it tasted like skin. She stated that the incidents happened in E.S.'s bedroom so that no one would "catch him." She denied that E.S.'s "missy" did anything at the time or that anything came out of it. She indicated that E.S. would allow her to have things or play with a stuffed animal if she agreed to do as he said. After stating that it "kept happening" and that she "kept doing it," the victim denied that E.S. ever asked to touch her. When asked to confirm that she was telling the truth, she stated, "I think." She added that she could not remember when she relayed the incident, noting that she had been in Alaska for a long time. While she did not confirm that she told her grandfather about the incident, she confirmed that it really happened, again stating that it happened "lots of times."
Additional testimony in the record indicated that the victim and her family had a vacation or an extended stay in Alaska at some point in time.
The victim was still five years old at the time of the adjudication hearing on October 31, 2017. At the hearing, she stated that E.S. was not her friend, "Because he made me suck his mister." She stated that a "mister" is something that boys "potty from." When asked if E.S.'s mister touched any part of her body, she responded, "[m]y mouth." She confirmed that E.S.'s mister went inside of her mouth and denied that she had a mister. She explained that she had a "missy" instead of a "mister," defining a "missy" as "[s]omething that girls potty from." She stated that it happened more than once and that it happened in E.S.'s bedroom, when only she and E.S. were present and the door was closed. She stated that the door was closed because E.S. did not want anyone else to see and stated that E.S. told her not to tell anyone. When asked why E.S. did this, she stated, "So [I can] play with his toys and stuff." She confirmed that after she sucked E.S.'s mister, he allowed her to play with the toys. She further confirmed that she told her grandfather and her mother about the incidents. The victim denied ever having seen anyone else's mister, other than that of E.S. and their dogs. When asked to specify the number of times E.S. put his mister in her mouth, she stated, "A lot." When asked if it was more than ten times, she responded positively. But when asked if it was more or less than twenty-one times, she stated, "It was 21 times." She stated that her mother told her to tell the truth about what happened, but denied that her mother discussed the incidents any further with her.
Dr. Hebert testified that at the victim's age, children are often difficult to speak with and tend to be concrete and literal. Thus, questions must be asked in the exact manner that will allow them to respond. She further noted that young children often have difficulty establishing time over a period of time or identifying locations, adding that they do not think linearly. To illustrate a young child's level of understanding in regards to the wording of questions, Dr. Hebert recalled the victim becoming confused when the doctor attempted to confirm the victim's previous disclosures, asking, "Is it true that [E.S.] asked you to suck his missy?" The victim responded, "I don't know." Dr. Hebert immediately followed up with the more direct question of, "Is it true that you sucked [E.S.]'s missy?" At that point, without hesitation, the victim stated, "Aha, I sucked it lots of times."
Dr. Hebert confirmed that based on her training and experience, it was common for children to hesitate in initially disclosing a traumatic experience. She further stated that it was not uncommon for children to refer to an abuser as nice, adding that she believed the victim loves E.S. and wanted to play with him. Dr. Hebert noted that the victim corrected her during several points of the interview, whenever she felt that the doctor made a false or incorrect statement.
The victim's grandfather testified at the adjudication hearing. He indicated that the victim and her family lived in an apartment on his property and that he sees the victim almost daily. One day the victim abruptly informed him than E.S. makes her put his missy in her mouth. The victim's grandfather stated that he knew E.S.'s mother and recalled dropping the victim off at their house on some occasions, and further recalled seeing the children together before. The victim's grandfather indicated that he asked the victim to repeat the statement but did not otherwise encourage her to make any other statements. He relayed her disclosure to his wife, the victim's grandmother, and the victim's parents. The victim's grandfather further indicated that the victim's mother, C.H., immediately reported the disclosure to Hope House and the police, who came to the victim's family's residence a day or two later. The victim's grandfather confirmed that the victim visited E.S.'s residence between November 2015 and March 2016. When asked if the victim ever went there after that time period, he stated that he could not be certain as to when she stopped going, he could only confirm that she was not allowed to go back to the home after her disclosure. He had no recollection of the date of the disclosure but believed it was in 2016.
The victim's grandmother also testified at the hearing. She stated that she first learned of the victim's disclosures in February 2017, the month it was reported to the police. According to the victim's grandmother, the victim went to E.S.'s residence many times starting from infancy, and the victim referred to E.S.'s mother as "Nanny." The last time that she recalled bringing the victim to E.S.'s residence or picking her up from the residence was the summer of 2016. She specifically recalled the victim being at the residence on the Fourth of July, noting that the victim likes fireworks though she is afraid of them. The victim watched the others from a window inside of the residence as they were lighting fireworks. The victim's grandmother indicated that the victim went to the house weekly during 2016. She further stated that she would drop off the victim, and that the victim would spend anywhere from two hours to overnight at the residence. She also recalled the victim had been at E.S.'s residence for the Christmas and New Year's holidays.
E.S.'s mother, M.S., testified he never had any disciplinary problems and described him as "a great kid." When questioned as to her occupation between November 2015 and March 2016, she noted that she was a stay-at-home mother. She described herself as obnoxious, explaining that her children have very little privacy in the house. She stated that E.S.'s room was located diagonally from her room and stated that the doors to the room were usually kept open as they ran in and out. However, she testified that E.S. would close his bedroom door whenever guests came over, explaining that since her daughter had many female visitors, E.S. wanted privacy and did not want a bunch of girls hanging out in his room. M.S. met C.H. when the victim was an infant, as C.H. was a friend of M.S.'s daughter. M.S. confirmed that C.H. would often bring the victim to M.S.'s house, and further confirmed that the victim called her Nanny. M.S. stated C.H. and the victim would usually stay for an hour or two, as opposed to C.H. dropping off the victim at M.S.'s house. However, she confirmed that the victim was dropped off once in the evening, noting that C.H. asked her to take care of the victim while she conducted errands. M.S. indicated that the victim was with her the whole time during that visit. She further stated that the victim was not allowed to go in E.S.'s bedroom during visits.
M.S. later confirmed that the victim's grandmother also dropped her off at times, but stated that it was during a different time period although she was unable to specify when. In July 2016, M.S. began working Monday through Friday, from 8:00 a.m. to 5:00 or 5:30 p.m., away from home. She confirmed that at times, the victim would be at her house when she returned from work. When asked whether E.S. would also be home she stated, "It would depend. He had baseball practice every day during the week. I can't speak whether or not he was at home at one particular time. He had baseball every day of the week. Except for Fridays."
When specifically asked if it was possible that the victim was at her home with her daughter and E.S. when she was not present, M.S. responded, "Right. But five other people were. Yes." She noted that they had dinner as a family, that her husband was home, and that E.S.'s three sisters would also be at home. In regards to the victim, she then stated, "I have no way of knowing exactly what time she was there." She noted that E.S. would keep his door locked when the victim was there, stating, "Because what 13-year-old boy wants a little girl that he loves as a sister playing in his room. He has got video games and equipment in there. That's why she's not allowed in his room." M.S. denied that the victim came to her house for Christmas 2016, noting that the victim was in Alaska for Thanksgiving and Christmas in 2016.
The juvenile court judge observed the recording of the C.A.C. interview and the victim's subsequent live testimony and found the victim to be credible. We note that the victim exhibited the ability to be truthful and correct any misstatements. She described the acts in detail from clearly identifying the body part to bluntly describing its taste. While she was unable to provide dates, as E.S. concedes, the date is not an essential element of this offense. The statements by the victim, who was well under the age of thirteen, indicate that E.S. engaged in oral sex with her at his instruction. As a much older child, E.S. took advantage of the victim's youth and their akin-to-familial relationship. Based on our review of the record, we cannot say the juvenile court was clearly wrong in its factual findings. Moreover, we find that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that E.S. was guilty of first degree rape. After undertaking the constitutionally mandated review of the law and facts, we find no manifest error by the juvenile court in its adjudication. Thus, we find that assignment of error number one lacks merit.
We address the second part of E.S.'s argument in assignment of error number one, regarding the evidence of his age and the effect of this factor on sentencing, in conjunction with our discussion of assignment of error number four.
EXCLUSION OF EXPERT TESTIMONY
In assignment of error number two, E.S. urges that the juvenile court erred in excluding Dr. Rafael Salcedo's testimony without conducting a Daubert hearing to determine his qualifications and the relevance of his potential testimony. While E.S. concedes that Dr. Salcedo viewed the C.A.C. interview as prohibited by La. R.S. 15:440.5, he suggests that there is no prohibition to preclude Dr. Salcedo from rendering general testimony about child forensic interviewing. He notes that at the trial his counsel argued that Dr. Salcedo's proposed testimony was fundamental to his defense. E.S. also notes that while the juvenile court further relied on State v. In re A.M., 2008-2493 (La. 11/21/08), 994 So.2d 1277, 1279-80 (per curiam), wherein the Louisiana Supreme Court was only asked to decide whether the juvenile court erred in denying the defense's motion for expert access to the forensic interview. E.S. points out that in State v. In re A.M., the court held that the right to present a defense does not encompass the right to present expert testimony commenting directly on the credibility of a victim's testimony. He contends that Dr. Salcedo's proposed testimony did not contain any opinion on the credibility of the victim. He notes that Dr. Salcedo's testimony was proffered and a Daubert hearing was conducted outside of the presence of the juvenile court judge. E.S. asserts that Dr. Salcedo's testimony would have been reliable and relevant.
La. R.S. 15:440.1, et. seq. addresses electronic recordings of "protected persons." As defined for this part, protected persons include a victim of a crime or a witness in a criminal proceeding who is under the age of seventeen years. La. R.S. 15:440.2(C). The victim in this rape case was between three and four years old at the time of the offense. Thus, the victim is a protected person under the statute. La. R.S. 15:440.5(C) addresses discovery of and access to videotaped statements of protected persons. The statute provides, in pertinent part, that:
In a criminal prosecution, when the [S]tate intends to offer as evidence a copy of a videotaped oral statement of a protected person made pursuant to the provisions of this Subpart, the defendant, through his attorney only, may be provided a copy of the videotape if the court determines it necessary to prepare a proper defense. If the defendant's attorney is provided a copy of the videotaped statement by court order or by permission of the district attorney, only the following persons involved in preparing the defense of the instant charges shall be permitted to view the videotape: the attorney and his regularly employed staff, the defendant, the defense investigator designated to work on the case, the defense paralegal designated to work on the case, and other staff members of the attorney who are transcribing the videotaped oral statement. Other than a transcript of the videotaped oral statement, no copies of the videotape shall be made by any person, except for use as trial exhibits. The copy of the videotaped statement and any transcripts shall be securely retained by the defendant's attorney at all times and shall not be possessed, transferred, distributed, copied, or viewed by any unauthorized party.La. R.S. 15:440.5(C).
In State v. Cyrex , 97-2520 (La. App. 1st Cir. 9/25/98), 746 So.2d 1, 3, writ denied, 98-2692 (La. 1/29/99), 736 So.2d 829, at a pretrial hearing, the defense counsel orally moved to allow defense experts to review a videotaped statement of the alleged victim. The district court granted the motion, and the State applied for supervisory relief with this court seeking reversal of the ruling. In granting the State's application, this court reviewed the pertinent statute and determined that defense counsel may not provide a copy of a videotaped statement to an expert. In vacating the district court's order allowing defense counsel to show the videotaped statement of the child-victim to his expert witnesses, this court stated, in pertinent part, "[i]f the court orders the defendant be provided a copy of the videotaped statement, only the attorney and the defendant shall be permitted to view the tape and no copies shall be made by any person." In State v. Bolden , 2003-0266 (La. App. 5th Cir. 7/29/03), 852 So.2d 1050, 1059-60, after defense counsel was allowed to view the videotaped testimony of a protected person, the defense requested a copy of the tape so that the defendant's expert could review it independently. The State objected, arguing that, under the explicit language of La. R.S. 15:440.5(C), if the court ordered a copy of the videotaped statement to be provided to the defendant, only the attorney and the defendant were permitted to view the videotape and that no copies were to be made by any person. Accepting the State's argument, the trial court denied the defendant's motion and the fifth circuit affirmed that decision.
As noted by the Louisiana Supreme Court in State v. In re A.M., the legislature's 2008 amendments to La. R.S. 15:440.5(C), 2008 La. Acts No. 85, § 1, removed any doubt as to how narrowly or expansively courts should read its terms. The statute continues to provide that only the attorney and the defendant shall be permitted to view the tape, but adds the admonition that any copy obtained by defense counsel "shall be securely retained by the defendant's attorney at all times and shall not be possessed, transferred, distributed, copied, or viewed by any unauthorized party." The statute continues to provide for a contempt citation for any violation of its terms but it now also provides that "[a]ny person who makes an unauthorized disclosure of the videotape or its contents may also be subject to liability for civil damages, including punitive damages." These amendments clearly indicate the legislature's intent to strictly limit pre-trial access by the defense to the videotaped statements. Under the plain terms of the statute, only defense counsel and the accused may view the videotaped statements in preparation for trial. State v. In re A.M., 994 So.2d at 1279.
A determination regarding the competency of a witness is a question of fact. It is well settled that a trial judge is vested with wide discretion in determining questions of fact. Therefore, rulings on the qualifications of an expert witness will not be disturbed on appeal absent manifest error. State v. Young , 2009-1177 (La. 4/5/10), 35 So.3d 1042, 1046, cert. denied, 562 U.S. 1044, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. La. C.E. art. 702; State v. Interest of W.T.B., 34,269 (La. App. 2d Cir. 10/20/00), 771 So.2d 807, 813. Notably, the Louisiana Supreme Court has placed limitations on this codal provision in that it has stated that expert testimony, while not limited to matters of science, art, or skill, cannot invade the field of common knowledge, experience, and education of men. Young , 35 So.3d at 1046-47. The preferred remedy for deficiencies in testimony is "effective cross-examination and artfully crafted jury instructions" rather than "battles of experts over whether the testimony of every witness is truthful and reliable." See Young , 35 So.2d at 1050. Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. C.E. art. 704.
In the case before us, outside of the judge's presence, the juvenile court allowed the defense to proffer Dr. Salcedo's testimony after ruling his testimony inadmissible. The proffer included an in-depth rendition of his education, qualifications, experience, expertise in forensic interviews, his assessment of E.S., and the general reliability of statements and claims by children at the victim's age. Dr. Salcedo indicated that the younger the child, the more likely the child can "certainly be subject to both deliberate and sometimes involuntary unconscious cues" by a questioner who makes suggestions. He stated that he would be skeptical of allegations from such a young child and would look for additional information. When asked if a four or five-year-old child is competent to testify in court, Dr. Salcedo stated in part that at the age of three and four, children's brains are still developing and they have difficulties with sequencing and recalling events. We note that E.S. did not seek to have any aspects of the proffered testimony subjected to a particularized Daubert hearing in order to test its scientific reliability. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-97, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
E.S. argues that excluding Dr. Salcedo's testimony based on his review of the C.A.C. interview resulted in a violation of his constitutional right to present a defense. However, the right to present a defense does not encompass the right to present expert testimony commenting directly on the credibility of a victim's testimony. State v. Foret , 628 So.2d 1116, 1130 (La. 1993). As the Louisiana Supreme Court has further held,
Given the substantial [S]tate interest in prosecuting crimes of violence against protected persons "with a minimum of additional intrusion into the lives of such protected persons," La. R.S. 15:440.1, the legislature
may also assume that reasonably competent counsel provided with pre-trial disclosure of the recorded statements made by protected persons possess the requisite tools to prepare for cross-examination as they may in any other case unaided by a psychologist or an investigator whose contributions may, to some indeterminate degree, or may not, aid in the process. In this context, a defendant's due process right to present a defense and his Sixth Amendment right to the effective assistance of counsel guarantee him no more and no less than what the Confrontation Clause of the Sixth Amendment otherwise secures to him: "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."State v. In re A.M., 994 So.2d at 1280. (Citations omitted).
Herein, not only did defense counsel admittedly violate La. R.S. 15:440.5(C) in allowing Dr. Salcedo to view the C.A.C. interview, portions of the proffered testimony were, in effect, opinions of E.S.'s guilt or innocence. Credibility determinations are made by the trier of fact. See State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. The testimony would have invaded the province of the fact finder. See Young , 35 So.3d at 1048. Contrary to the E.S.'s argument, the testimony attacked the veracity of the victim based on her age and the lack of brain development, the lack of an ability to sequence and recall events, and high susceptibility to suggestiveness. The exclusion of the challenged testimony did not prevent E.S. from presenting a defense; rather, it merely prevented him from using expert testimony to attack the veracity of the victim. See e.g., State v. Naftzger , 2012-2061 (La. App. 1st Cir. 6/7/13), 2013 WL 2484810, *7 (unpublished), cert. denied, 83 USLW 3185, 135 S.Ct. 61, 190 L.Ed.2d 58 (2014). Defense counsel was afforded the full opportunity to cross-examine the victim and there was no indication that any additional expert assistance was needed in order to effectively do so. The victim was questioned as to whether any suggestions were made to her and as to the veracity of her claims. We find that there was no manifest error in the trial court's exclusion of the challenged expert testimony. Thus, we find that assignment of error number two lacks merit.
ADMISSION OF EXPERT TESTIMONY
In assignment of error number three, E.S. argues that the juvenile court erred in qualifying Dr. Barbara Hebert as an expert witness in child forensic interviewing. He claims that Dr. Hebert lacked the necessary training and experience for the qualification. He notes that while Dr. Hebert was previously the executive director of the C.A.C. in Covington, her role was not as a forensic interviewer. He concludes that based on her remaining education and experience, she was competent to testify as an expert in counseling, but was not competent to testify as an expert in forensic interviewing. In arguing that the admission of Dr. Hebert's testimony was not harmless, E.S. contends that the State's case was built on uncorroborated circumstantial evidence. He further argues that Dr. Hebert's testimony bolstered the victim's credibility and mitigated the use of leading questions. Considering that his own expert was excluded from testifying, he notes that the juvenile court only had the benefit of Dr. Hebert's expert testimony, which he contends partly conflicted with Dr. Salcedo's proffered testimony.
Herein, while defense counsel objected after the juvenile court ruled that Dr. Hebert was qualified to testify as an expert in counseling and forensic interviewing, he did not state any grounds for the objection. The basis or ground for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. Accordingly, this argument was not properly preserved for appellate review. La. C.E. art. 103(A)(1); La. C.Cr.P. art. 841(A); see State v. Deal , 2000-0434 (La. 11/28/01), 802 So.2d 1254, 1262, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002); State v. Young , 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1005; State v. Trahan , 93-1116 (La. App. 1st Cir. 5/20/94), 637 So.2d 694, 704.
Moreover, a court's determination regarding the qualification of an expert witness cannot be disturbed absent an abuse of discretion. A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to demonstrate that that person is an expert; a person may qualify as an expert based upon experience alone. State v. Berry , 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 456, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. According to La. C.E. art. 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
In this case, the juvenile court judge was able to assess Dr. Hebert's testimony regarding her experience in conducting interviews, as well as her explanation as to the pertinent training. In addition to her master's degree and Ph.D. in counselor education, Dr. Hebert testified as to her experience as a licensed professional counselor supervisor, a registered play therapist supervisor, and as the executive director of the C.A.C. in Covington for nearly three years. She further noted her experience in conducting forensic interviews, including a minimum of two-hundred hours under the supervision of a qualified forensic interviewer. In light of La. C.E. art. 702, we find no abuse of discretion in the trial court's ruling. Assignment of error number three lacks merit.
THE LEGALITY AND CONSTITUTIONALITY OF THE DISPOSITION
In assignment of error number four, E.S. argues that the disposition to juvenile life and lifetime sex offender registration is illegal because the State failed to prove that he was fourteen years old at the commission of the offense. He contends that the evidence instead shows that he was thirteen during the alleged time period for the offense.
As we have already indicated, in a second part of assignment of error number one, E.S. asserted that the evidence was insufficient to prove that the allegation occurred when he was fourteen years old. See n.6, supra. Specifically, E.S. claims that law enforcement and members of the victim's family consistently testified that the allegations occurred between November 2015 and March 2016, a time period during which he was thirteen years old. Thus, he suggests that the State did not present any evidence to support a finding that he was fourteen years old at the time of the offense.
Also, in assignment of error number four, E.S. contends that the disposition is excessive. He maintains that the predisposition report indicated that he presented a low safety risk in sixteen areas and a high risk in three areas, consisting of peer rejection, poor coping skills, and stress. He argues that the areas of high risk are attributable to his current legal situation. He notes that at the disposition hearing, his mother, sister, grandfather, friend, and coach all portrayed him as a child who did not cause trouble, respected authority, kept to himself, and was dedicated to baseball. He points out that he had perfect school attendance for two years prior to his arrest and made above average grades. As E.S. further noted, at the hearing he testified that he never used drugs and was active in sports while at the detention center. He argues that considering his "exceptional character in light of the actual harm caused, such an extreme sentence is clearly a shock to the sense of justice." He contends that while the allegation technically fits the statutory definition of first degree rape, it also fits the definition of less serious offenses such as sexual battery and oral sexual battery. He maintains that the gravity of the instant offense does not rise to the level of first degree rape, noting that while the victim stated that E.S. made her "suck his missy[,]" she also stated that his "missy" did not do anything, and that nothing came out of it.
Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A juvenile court judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. See State v. Hurst , 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
After adjudicating a child to be delinquent, a court is required to impose the "least restrictive disposition" authorized by Articles 897 through 900 of the Louisiana Children's Code, "which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society." La. Ch.C. art. 901(B). However, the general disposition guidelines do not apply when a child has been adjudicated a delinquent for the violation of first degree rape. La. Ch.C. art. 901(E). Disposition rules for first degree rape and other enumerated felonies are set forth in Article 897.1 of the Louisiana Children's Code:
A. After adjudication of a felony-grade delinquent act based upon a violation of ... aggravated or first degree rape ... the court shall commit the child who is fourteen years or older at the time of the
commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement until the child attains the age of twenty-one years without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.The purpose of this subsection is to remove the juvenile court's discretion to impose a lesser sentence than juvenile life for the enumerated felonies. State in Interest of T.J.T., 97-0335 (La. App. 4th Cir. 4/9/97), 692 So.2d 1385, 1388 (abrogated on other grounds).
In this case, the petition alleged that on or about November 1, 2015 through December 31, 2016, E.S. committed the delinquent act of first degree rape. E.S. attained the age of fourteen years as of May 26, 2016. The testimony and evidence established that the victim was raped in E.S.'s bedroom many times. The victim repeatedly stated during the C.A.C. interview that it "kept happening" when she would go to E.S.'s home. While defense counsel during the adjudication hearing repeatedly presented the time frame of November 2015 to March 2016 in questioning witnesses, the testimony of the witnesses as a whole did not limit the acts to that time period. For instance, when asked if the victim went to E.S.'s residence before or after the shorter time period, the victim's grandfather stated, "I guarantee she didn't go after [the victim] told me. So I can't tell you when she stopped going." The victim's grandfather first relayed the victim's disclosure to N.H.'s grandmother, who testified that she found out about it in February of 2017. The victim's grandfather then ("that afternoon") relayed the victim's disclosure to his son and the victim's mother, who called the police. The police came out to the victim's residence a "day or two later." This is consistent with Detective Davis's testimony that he received the report in early February of 2017, and immediately scheduled the C.A.C. interview which took place on February 8, 2017. The evidence showed that the offense was repetitive and continuing in nature. See State v. Kiger , 2013-69 (La. App. 5th Cir. 10/30/13), 128 So.3d 552, 560. We find that the evidence was sufficient to support the juvenile court's factual determination that E.S. committed first degree rape when he was fourteen years old. See State ex rel. J.M., 2008-0305 (La. App. 1st Cir. 6/6/08), 2008 WL 2332326, *2 (unpublished). As such, the juvenile court did not err in entering a judgment of disposition under the mandatory provision of Article 897.1(A).
Deborah also recalled the victim visiting E.S.'s residence for the Fourth of July, Thanksgiving, and Christmas holidays in 2016. Further, E.S.'s mother testified that she began working away from home in July of 2016 and that the victim would sometimes be there whenever she returned home from work. E.S. was fourteen years of age as of May 29, 2016, well before July of 2016. Based on the testimony of E.S.'s mother, the victim was still visiting E.S. when he was fourteen years old. The child repeatedly stated that the incidents kept happening when she would visit E.S.'s home.
In Kiger , the defendant alleged that the record did not demonstrate whether the jury found he had committed the aggravated rape before or after his 18th birthday, which would determine his parole eligibility. In affirming the sentence of life imprisonment without the benefit of parole, the appellate court stated, "While Defendant may have been 17 years old when the sexual abuse of J.L. began, his crime was repetitive and continuing in nature into his adulthood. In returning a guilty verdict, the jury inherently found Defendant committed the aggravated rape of J.L. while being an adult." Kiger , 128 So.3d at 560. --------
First degree rape of a person under the age of thirteen is a crime which, when committed by an adult, carries a mandatory life sentence. See La. R.S. 14:42(D)(1); State v. Ford , 2017-0471 (La. App. 1st Cir. 9/27/17), 232 So.3d 576, 588-89. Because E.S. is a juvenile, his mandatory sentence is juvenile life, or approximately six and one-half years from the date of disposition. La. Ch.C. art. 897.1(A). Further, the juvenile shall be subject to the lifelong requirement that he register as a sex offender under La. R.S. 15:542(A)(3)(a) and La. R.S. 15:544(B)(2)(b).
In State v. Dorthey , 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court recognized that if a trial judge determines that the minimal mandated punishment makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he is duty bound to reduce the sentence to one that would not be constitutionally excessive. In State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from mandatory minimum sentences. The court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to "clearly and convincingly" show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.Johnson , 709 So.2d at 676. It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory minimum punishments for criminal offenses. Rather, "the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution." Johnson , 709 So.2d at 677. A juvenile court (in cases involving mandatory minimum sentences) is to consider and impose its disposition according to the criteria set forth in Johnson. See State ex rel. A.A.S., 98-1505 (La. 10/16/98), 726 So.2d 900, 901.
In State in Interest of A.A.S., 30,775 (La. App. 2d Cir. 4/8/98), 711 So.2d 319, writ granted and decision vacated, 98-1505 (La. 10/16/98), 726 So.2d 900, the juvenile was adjudicated delinquent for committing aggravated rape (as the offense was then denoted prior to the legislature renaming the offense first degree rape, as noted in La. R.S. 14:42(E)). The juvenile court sentenced the juvenile to a term less than the mandatory disposition of Article 897.1. On appeal, the second circuit reversed, and remanded the matter for the entry of a judgment of disposition consistent with Article 897.1. State in Interest of A.A.S., 711 So.2d at 324. The Louisiana Supreme Court later vacated the decision of the appellate court and remanded the case to the juvenile court for reconsideration of its disposition according to the criteria set forth in Johnson. A.A.S., 726 So.2d at 901. The decision of the Louisiana Supreme Court in A.A.S. indicates that a juvenile court judge has the authority to deviate below the mandatory minimum disposition set forth in Article 897.1(A) when a juvenile has been adjudicated delinquent of first degree rape. See State ex rel. A.B., 2007-907 (La. App. 5th Cir. 3/25/08), 983 So.2d 934, 942.
Herein, a predisposition report was filed and several witnesses testified at the disposition hearing. Howard "Travis" Bush, the OJJ probation officer, testified that there was insufficient time to obtain a psychosexual evaluation prior to the disposition hearing. He noted that E.S. did not have any criminal history. E.S.'s mother noted that the child has been diagnosed with attention deficit and hyperactivity disorder and received speech therapy for stuttering. She, along with other family members and E.S.'s baseball coach, indicated that he was well-behaved and athletic with a strong support system. E.S. also testified, presenting his report card consisting of mostly above-average grades. He discussed his past participation in sports and indicated that he was not having any problems in custody and got along well with the staff. The victim's mother testified as to the victim's change in behavior prior to her disclosure, stating that she began having nightmares and became distant and defiant. She noted that the victim began undergoing therapy immediately after the disclosure.
The juvenile court judge considered the number of instances that the victim indicated that the incidents occurred and concluded that probation would increase the risk of another crime and deprecate the seriousness of the offense. The judge noted that there was no indication that the victim did anything to encourage the behavior. On the other hand, the judge considered E.S.'s character and the fact that E.S. has no history of prior delinquency. While the judge ordered that E.S. be confined in secure placement until he attains the age of twenty-one years, the judge expressively deviated from the disposition mandated by La. Ch.C. art. 897.1(A), in that he declined to order the confinement be without the benefit of probation, parole, or suspension of sentence. The judge specifically stated that he would "leave open the possibility of modification of sentence if shown that he is not a threat to any other person or a threat to society." The judge added that he hoped that the child could learn a lesson during his period of confinement. After a thorough review of the record, we find no abuse of discretion in the juvenile court's disposition. The juvenile court carefully considered the factors in this case and we do not find anything in the record that warrants any further deviation in disposition. Accordingly, we conclude that the disposition imposed was not excessive. Thus, assignment of error number four is without merit.
For these reasons, we affirm the adjudication and disposition imposed by the juvenile court.
ADJUDICATION AND DISPOSITION AFFIRMED.