State Of Louisiana VS David L. Jenkins
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 0947 STATE OF LOUISIANA VERSUS cJ DAVID LANE JENKINS Judgment Rendered November Appealed from Twenty Second Judicial 2 2007 the District Court In and for the Parish of Washington Louisiana Trial Court Number 05 CR7 92869 Honorable Donald M Fendlason Walter P Reed District Judge Attorneys for State Appellee Attorney Franklinton LA and Kathryn Landry Baton Rouge LA Holli Herrle Castillo Attorney for Marrero LA Defendant Appellant David L Jenkins David L Jenkins In Proper Person Defendant Appellant St Gabriel LA BEFORE g l CARTER J C PETTIGREW AND WELCH JJ e 72iP J WELCH J The defendant David Jenkins of count one 14 42 A 4 aggravated Count 1 14 43 1 all was to charges of guilty of sexual 2 11 and charged by grand jury the minor of sexual ten counts violations of La R S guilty against rape and was Counts 2 11 tried s battery against a a RS the minor E J guilty term of nine years at of sentence suspension or of La not responsive verdict 1 and found the defendant not probation parole denied the defendant violation The jury returned The trial court sentenced the defendant to without benefit of a The defendant entered pleas of by a jury battery on Count RJ indictment with on Counts hard labor The trial post trial motions for new trial verdict of acquittal court arrest of judgment and reconsideration of sentence In this one pro reverse se appeal the defendant raised three counseled assignments assignment of error Because the defendant s conviction with instructions for a new we vacate have found his a sentence of error prejudicial trial error and remand this and we matter trial FACTS Background Nancy and Durwood Jenkins are the parents of R J The defendant is the brother of Durwood Jenkins approximately eleven years old When diagnosed autism with Pervasive as communication and social skills court autism is separate from a with autism have sensory hypersensitive or was At the time of trial two Developmental Disorder Autism is classified accepted by the trial RJ as an mental a and a and E J RJ half years old she commonly referred was was to as spectrum disorder which generally affects According to Rebekka Wascom who was expert in the field of Education Diagnostics disability Wascom explained processing dysfunctions which hyposensitive the victim to certain stimuli 2 means that many that Typically people they people may be with autism have difficulty with As social interactions the Educational familiar with R J both considered autistic in that her processing deficits and sensory and she has familiar environment to rhythm of her speech is Dr an and center difficulty Dr Colomb testified that process do According things distressing they do in a to Dr utilize fast too court as an III psychiatry testified that the symptoms of in social skills with autism particularly verbal communication usually exhibits Colomb autistic children as a method a speaks the of an concrete a struggle socially autistic child to routine is very s get themselves into and Dr Colomb testified that it would be very difficult to coach thought and tend to Because autistic children do not grasp abstract lying from expert Any disruption child or accepted by the trial someone routine to that not Jr RJ Although is is with behavior difficulty transitioning unusual in that it may be too slow child and adolescent around extreme Wascom is Wascom testified R J primary difficulty unfamiliar environment William Colomb psychiatry autism professionally and personally classically to be Diagnostician for Washington Parish out thoughts of situations an autistic child to say to have something had occurred that had not Dr Colomb also testified that sexual matters after thirteen reaching puberty which is usually around the However autistic children any sexual interest Colomb it is normally girls begin typically do they develop tends highly unlikely that be able to fantasize about sexual a an Nancy and Durwood E J he offered to suspicious baby when R J more sit the began to be eleven encounter In late 2002 the defendant who visit to often was or not auto seek out an interest in age of twelve to companionship thus interest According twelve year old autistic to Dr girl would and express such single and lived in Lafayette began As the defendant grew closer to R J to and girls Nancy and Durwood agreed Nancy became exhibit strange behavior 3 not long after the defendant began spending time with her Specifically following defendant watched their children attempting Both to Nancy and Durwood explained to she had learned it get on and play begin was to R J did not good night At other times improper unbuckle her parents belts strange Durwood admitted he was R J asked R J where never as to where this respond would break from the routine of mother would clean her not RJ that this RJ also testified that several times after the defendant had watched her Nancy sticking Nancy and Durwood experienced Nancy testified that when she questioned R J originated daughters Let s parents Although this behavior behavior of the times when the stick her tongue into their mouths when she kissed them R J would tell her and both some and anal genital her butt into the air any bed without defendant the children had Nancy raised her 1 by getting area other off regular on however Durwood dismissed them her hands and knees for a while R J could Nancy testified that other than the sitter that these behaviors concern her back when her on Nancy also testified that taking her pants no laying In speaking were linked with her husband to the defendant that his brother would reasoning never hurt their children Finally a week prior home helping day While the defendant to them prepare for Christmas 2004 the defendant a was family there reunion that was alert the defendant through to the fallen leaves help her feed the horses defendant and I R were Nancy explained regularly cleaned her her to going to Nancy discovered he and house and gone outside between the fence and to was a horse trailer they According the defendant that because RJ were to not wanting walk not quietly walked outside and called to leaning against the bumper still needed assistance with bathroom 4 next R J had left the Nancy when she walked was Jenkins be held the Nancy suspicions and knowing she could where at the to them to where the of the horse hygiene she trailer and R J wrapped result seated was around his the defendant s on lap facing him legs Nancy testified that this Nancy resolved that she would and would decline his offers to gave her bad a with her As feeling leave the defendant and R J alone not legs a again baby sit the girls December 25 2004 incident On Christmas morning of Christmas with R J and E J along with Durwood who father s Nancy and Durwood 2004 approximately were D W Durwood eight and seven years old Ann stepmother s celebrating were and the defendant Around mid morning RJ in the defendant s sat play with her The defendant agreed and the room which was the first room off the two few minutes J Alarmed Nancy Nancy observed was pointing heard R J went up the stairs at the The defendant his pants Nancy RJ was to quietly up the stairs and sat giggling and heard R J make sexual noise a upstairs went see on her hands and knees defendant backing fly spread wide s I and into RJ groin area on and you s s what R J and the the s room landing are 1 am to for a listen watering bedroom the door was her bed with her clothes saying away from R J with the open to R J strange noise that she described a say on to go Because of her After the defendant and R J had been in R J Nancy walked halfway Nancy heard R as doing were got up and top of the staircase suspicions about the defendant Nancy decided defendant and asked him lap You were you open RJ on watering me zipper of his pants down and The defendant looked at Nancy and said I am sorry Nancy grabbed did to not comprehend R J and carried her downstairs that her mother put their children into concerned that Nancy a was separate was to Nancy upset Nancy and her husband room physically According Not knowing what had occurred hurt Ann Jenkins asked 5 were RJ able and Nancy if anything was crotch At that Later that to evening when Nancy following day with R J about what explain to RJ Oh she standing were RJ saw grabbing there with your my zipper wide point Durwood angrily ordered the defendant from the house began clean near her genitals R J The in and said came No you Nancy responded open try The defendant wrong why to clean R J began screaming while her husband as and was at she laid R J on her back to kicking work Nancy tried to speak happened the previous day According to she had been she told R J that the defendant had hurt her crying the day before so and whatever he did to R J Nancy Nancy she tried to he had also done to her Nancy her then asked R J According that Nancy mother s to if she could demonstrate what the defendant did to Nancy she would be R J told R J to mouth asked R J if the defendant put his mouth Nancy near on R J also answered whether the defendant had put his parts that she was R J then pushed her mother down legs apart and placed her that the defendant did pretend asked RJ on her mother her the bed genital spread her area Nancy private parts and RJ responded to yes s the defendant and private parts Nancy on or s questions addressing inside of R J s private if she wanted the defendant to do this and R J said Yes The following day Nancy Brown of the fluids some No Detective Brown also at the Children s bedroom that RJ including Laboratory s s blanket semen was Advocacy Center but 6 so might were detected arranged for RJ referred to Detective Justin Jenkins s home and have the presence of tested on to they could report what went to the Detective Brown items from R J The items Police Crime were Washington Parish Sheriff s Office happened Christmas Day collected and Durwood at bodily the Louisiana State any of the items be interviewed because of by Jo Beth Rickles RJ s problems in communicating there took R J R J and would to the rape crisis they upset not speak Then and began she was statement was no RJ Nancy felt the sessions to Thanksgiving in When Nancy asked worried about Thanksgiving defendant had been alone in her In an if that the room Hospital Center of Children Based was on s a the trial court his review of Dr Weiner neither did child demonstrates exposure to that nor sex in Detective Brown defendant to she upset R J indicated that soothe R J s apprehension good time they had at the When previous Thanksgiving responded He did hurt Nancy Nancy me put his private part into your of this matter Dr Monica Weiner who on January 4 as an s s exam 2005 at Dr Scott Risk Evaluation notes and report Dr expert in pediatric forensic medicine exam there was no physical evidence rare to however Dr Benton testified that the fact her parents is indicative that the child has had act s complaint and investigation of this obtained for the defendant to a crying did not engage in sexual intercourse act to a sex Following the Jenkins was Nancy decided that Audrey Hepburn Children physical findings indicating such would be that help R J revealed that she and the reviewed Dr Weiner Hospital accepted by prove that R J to examined R J Benton the Medical Director of the Benton no Yes replied s effort when the defendant was conjunction with the investigation worked for Children was talk about what to asked R J if the defendant had hurt her R J and R J she why During this interchange previous Thanksgiving In of 2005 while at home R J became RJ to cry private part were with R J about what had occurred just prior then asked R J Nancy testified she also they stopped attending them so Thanksgiving Nancy began over but center RJ given by voluntarily on May made a s arrest 25 The defendant 2005 After being According statement 7 to matter voluntarily a warrant turned himself advised of his the defendant s rights the statement on Christmas her pants 2004 he and R J Day if to as flash him to R J this him and entered the RJ room came over and saw denied any type of sexual The State also to then The defense defendant pulled them hugged dropped his quickly pulled back in At that place Following RJ point pants unzipped smother The defendant E J at trial E J testified that the to R J from Ann Jenkins the to Ann stepmother this situation created great turmoil in their Ann testified that she did not believe the defendant harmed either R J Although Ann Christmas displayed was Day a initially called by the 2004 s behalf at trial Nancy that she believed R J street testify Nancy as never to of the family or E J what she observed on liked the defendant and bad attitude toward him conversation with the State to Ann revealed that Cornelia Holmes the defendant own places and she had witnessed the defendant presented testimony According when R J activity occurred presented testimony from same him the defendant with his defendant had tickled her in the wrong frequently doing the room The defendant admitted he pants down exposing his penis episode in her playing were was 2 daughter in law of Ann Jenkins also testified Holmes testified that she after these charges made autistic Holmes reiterated that also told Holmes that she would Nancy brought were by God was so more wherein a the telephone Nancy stated she could take the defendant off not fond of the defendant get her way by whatever she would say whatever needed to be said because child she had participated in on as means Nancy necessary and that the mother of a handicapped credibility The defendant did not testify at trial SUFFICIENCY OF THE EVIDENCE In his second counseled 2 assignment of error the defendant argues the trial Cornelia Holmes is married to Clark Holmes Ann Jenkins 8 s son from her first marriage erred in failing to grant court raised trial on appeal errors evidence the The entitled to an L Ed 2d 30 light for reason if 1981 most to as sufficiency court a favorable of the evidence and should first determine the v to the was 3 error discharged issues as 99 S Ct 2781 307 prosecution could not is insufficient to as to to that crime Hearold 603 So 2d 731 inadmissible is sufficient to which the proved beyond in that all reasonable a support the conviction the accused are moot State to entirety of the evidence both admissible and support the conviction the accused is court must there has been trial entirety of the evidence accused must receive the court of the trial by 734 La 1992 then consider the determine whether the accused is entitled court determines of the 1979 reasonably conclude would be pure dicta since those issues acquittal and the reviewing error 61 L Ed 2d 560 that crime and any discussion On the other hand when the an sufficiency entirety of the evidence including inadmissible evidence which erroneously admitted must be v When the one or more viewing the evidence in accordance of the essential elements of the offense have been doubt to Louisiana 450 U S 40 101 S Ct 970 67 rational trier of fact 443 U S as are that the accused may be reviewing sufficiency first is under Hudson Virginia v post verdict judgment of acquittal When issues the reviewing acquittal with Jackson the both a a new was error to which sufficient to a new was was assignments of trial trial If the harmless not to reviewing in cases in support the conviction then the trial but is not entitled to admissible evidence considered alone entitled not an acquittal insufficient even Hearold though the 603 So 2d at 734 Thus we must initially determine whether the admissible and inadmissible 3 Alternatively of guilty of a lesser was sufficient the accused could be entitled to included offense a to 9 of the evidence both support the conviction reduction of his conviction to La C CrP art 821 E La 1980 entirety State v Byrd a The judgment 385 So 2d 248 251 defendant was convicted of sexual Louisiana Revised Statute 14 43 1 battery provides in pertinent part A Sexual in any of the following acts with another person where the offender acts without the consent of the victim or where the act is consensual but the other who is is the intentional battery engaging the spouse of the offender has not yet attained fifteen years of age and is at least three years younger than the offender person The 1 not touching offender using offender of the anus of the victim genitals or by the or 2 instrumentality any or any part of the body of 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 The The evidence to bolster the against the defendant credibility of R J and Dr Benton the State one who has consisted of Through the testimony of presented characterization of a difficulty communicating and one Wascom and Dr Colomb testified that in their to coach this type of individual into Wascom and Dr Colomb testified concrete lying is thought an as abstract themselves into or opposed thought out to expert testimony presented as to who a Wascom Dr Colomb typical opinions it would be reporting a fabricated interest in sexual following puberty interest at interest be they develop would be an an encounter auto seek interest autistics have highly unlikely for an eleven sexual world of get of certain situations matters not a process autistic children do not tell lies in order to not sexual partner is Both encounter Dr Colomb added that because thought Colomb stated that autistic children do a very difficult how autistic children operate in abstract as Both struggles socially Dr Colomb further testified that children without autism an autistic child or and express those Dr Benton testified that R J generally develop about age twelve out companionship According to Dr Dr Colomb twelve year old autistic or thirteen Dr and any sexual Colomb seeking opined that it would girl to fantasize about a feelings s mother 10 reported to Dr Weiner that R J had demonstrated what had occurred between she and the defendant Benton in general child who demonstrates a a sexual act Dr According to has had exposure to that sexual act Nancy and Durwood both testified to as behavior after the defendant had become their R I attempting s began he leaned as on 2004 and how it had the R I to unbuckle her bad a s room top of her bed statement parents belt buckles while asking when was s account to R I is not Nancy capable s bedroom on to the open and R I defendant s of lying According to Nancy Thanksgiving R I would that the defendant had respond affirmatively raped RI the credibility could provide a basis for a all fours on and made a to R I s to own the defendant trial testimony hurting every Nancy their home for or s girl RI s a sexual clearly mouth and his apprehension about questions establishing Clearly to battery spoke conclude on this RJ s beyond a testimony bolstering rational trier of fact established that she boy RI as about what had previous Thanksgiving reasonable doubt that the defendant committed s 2004 private parts with his evidence if admissible when considered with the other at groin testimony s genitals Nancy also testified that when addressing present on Nancy testified December 26 indicated that the defendant had touched her RI s of finding the defendant and R I zipper wide pointing Nancy questioned her occurred in R I own R I in the defendant regarding the defendant had been watering her According answers with the defendant At the time R I them feeling Nancy also provided an eyewitness alone in R I kissing of the horse trailer the week before Christmas bumper given her exhibit strange mouths while play Nancy further testified about the incident of finding lap to baby sitter This behavior included stick her tongue in her parents to good night and attempts by to how R I RI with her mother about R I testified that the defendant was Thanksgiving 2004 and also remembered her mother 11 crying RJ at Christmas 2004 years 4 to prior R J Thanksgiving to In specifically reference asked R J her mother he also did to to Christmas on playing two Day game with a what occurred to at if she remembered if her and R J he replied just me We note the See La Thanksgiving the prosecutor then what the defendant did did it at upstairs Christmas at private part inside her and indicated this occurred testimony s his crying was trial R J further testified that she remembered the defendant C Cr P jury returned art 814 A responsive verdict of guilty As 8 the recognized by the Louisiana Supreme Court system of responsive verdicts is Porter 93 1106 p 4 La 7 5 94 a why her mother responded that the defendant had put her made her cry our When asked jury the opportunity to reach the evidence is sufficient to Odom 2003 1772 p 7 La sufficient La to aggravated distinct aspect of 639 2d So 1137 10 8 04 1140 compromise verdict compromise verdict for whatever may return a 2004 1105 a a sustain a reason conviction for the App 1st Cir 4 2 04 883 So 2d 1026 law Such a battery See State they deem fair so charged offense 878 So 2d 582 588 charged a jury long as State v writ denied We find the evidence in this Thus the evidence also supports the v system provides It is well settled that establish that the defendant committed the rape of R J state of sexual case offense of is an compromise verdict of sexual battery Accordingly while the defendant is entitled to because of other trial errors acquittal based insufficiency of the on the an a reversal of the conviction issue discussed hereafter he is not entitled to an overall evidence MOTIONS FOR MISTRIAL In his first counseled 4 There is assignment of error the defendant allegation or evidence of any type of sexual relationship between Nancy and Clearly R J s statement refers to Nancy s attempt to explain that whatever also happened to her no the defendant happened to RJ argues the trial court 12 erred in failing trial of this to grant any of his motions for mistrial At various times during the the defendant moved for mistrial but the trial matter of his motions The defendant admission of hearsay s motions for mistrial were discovery violations statements based court denied all the erroneous on and the admission of evidence of other crimes Admission ofHearsay Testimony In this erred in portion of the assignment denying testimony as to his motions for mistrial based on of Nancy December 26 2004 Nancy testified that she asked the day before in asked R J if she The defendant an attempt thought objected and thus it could not on by RJ s R J if she knew the basis that to was to a first Nancy uses Nancy s s her he did the s the speaking I R Nancy testified she reporting relaying same exception her to 25 incident The hearsay statement to R J that her mother to objection the trial art 801 D l court d as a noted that first report of the situation in that R J is different methods of communication testimony continued with her the conversation with upcoming Thanksgiving rape she described tell her what the defendant did uniqueness demonstrate what the defendant had done describing or admissible under La C E The trial court also noted the autistic and s involving her Nancy had seen the December overruling the defense counsel testimony Nancy why she Nancy had been crying elicit information from to objected actions testimony wherein R J could show her whatever the defendant did Nancy s s the admission of regarding what had occurred the previous day be considered defense counsel also In on what R J told her about the defendant During the portion with R J of error the defendant argues the trial court had occurred on 2005 describing Later I R wherein R J holiday Thanksgiving during Nancy exhibited which lead to R J 2004 13 how she the defendant s got R J to testimony in apprehension about s revelation that the again objected and informed the trial of the jury The trial allowed Nancy Jenkins to was able Although court s that he would like court testimony be heard prior to the defense counsel revealed another crime and counsel did told her not argue just prior his a to the fact the objection for his motion for mistrial Nancy to Nancy being 2005 to Later the defense counsel violation a previous objection right testimony of Ann and Durwood reasons discovery Thanksgiving to and objected or motion outside of the presence the motion entertaining objection a the defendant s continue and the to articulate his to d reserve make to by s testimony seemingly the State the defense testimony about what s violation of the first RJ reporter hearsay exception Under La concerning qualify hearing CE art 80 1 D and be to subject the behavior sexually assaultive for admission under this 1 d initial is considered to be provision the declarant cross examination be consistent with the declarant s 2579 p 9 App 1st Cir La In the instant case 2 23 96 testimony her room 668 So 2d 751 hurting the defendant did not Because testify every boy crying defendant put her on his at the trial Jones v or and the statement State To 94 756 or girl Christmas speaking with According take his pants off when R J remembered her mother reason was testimony victim a nonhearsay R J testified at trial that she remembered her mother about the defendant trial must concerning the statement must of complaint playing to R J s with her in Day and explained the private part inside her and made her cry The prosecutor then asked R J defendant at Thanksgiving to if she remembered which R J prosecutor asked I R if she remembered if he also did RJ replied to you responded Under these circumstances Urn we he just did s with that she remembered what defendant did find R J 14 playing it to trial to your the The mother me testimony to be consistent with Nancy testimony s how she communicates was able inside her mother occurred does the defendant admissible I R was exception to able her mother the basis that E J offense of charged with seventeen at acts objected wrong as a sexual to E J places battery that sexual indicate lustful a considered for its balancing been properly This that constitute or act s a sexual describe what to raped her testimony s was 1 d testimony that she had The defendant objected on other crimes since these The trial battery a sex was a court overruled the responsive verdict to the bearing C E admitted on art using provides that when an offense with a s Thus the the procedure portion of the assignment of 15 acts which subject to the testimony of E J could also have specified error or may be admissible and may be any matter to which it is relevant 403 commission of assaultive behavior toward children accused victim under the age of evidence of the accused involving sexually disposition test of La have her to rape the time of the offense another crime wrong happened not RJ art 801 D Louisiana Code of Evidence article 412 2 A is have of error is without merit R J in the objection reasoning aggravated put his the first statements R J made about under La C E hearsay her i e to that the defendant had testimony improperly referenced actions could be viewed defendant s were that she and Other Crimes Evidence ticlding s to autism affects s testimony properly ruled that Nancy court portion of the assignment the defendant s thing point used by to convey We also note that the defendant seen same understood affect the reference RJ Discovery Violations R J mother and the defendant did actions the trial s as an This s statements to s which private not At trial Because R J Clearly However it is also evident from R J The fact that R J relationship reported that the defendant had done the to convey private what R J to as has no in La C E merit art 412 2 In this erred in comply portion of the assignment of error the defendant grant his motion for mistrial based to failing with its continuing duty to provide discovery argues the State indicated in 2004 how R J described defendant bill of trial the State being raped by was charged with The defendant objected matter on and moved for alleges counsel to specifically on a In the motion filed a the counts 1 2003 and motion for se pro the defendant commission of the offenses for the defendant s mistrial a that the eleven On November 4 2005 the defendant filed 2005 failure Thanksgiving Day committing occurred between January exact date and time of the December 7 s court presented testimony from Nancy particulars and discovery and inspection requested the the State on the defendant the defendant grand jury indictment in this December 25 2004 a at Following this testimony The the trial pretrial discovery that the aggravated rape occurred December 25 2004 however relating asserts motion On charged for discovery requesting this same information The record reflects the State motions for pleadings were aggravated RJ the State a m sets and the defendant Nancy s aggravated In was s and 12 00 p forth only In these at two witnesses answers alleged to the State to as in the State the when these to aggravated s specific charged answer to charge provided that Nancy heard incident would not Clearly despite the fact be alleged as the with committing the motion for mistrial the prosecutor 16 a Count 1 rape during the commission of the offense trial that s be December 25 of the December 25 2004 incident was the defendant indicating forth that Moreover m to pleadings actually signed by sets rape the defendant arguing against the answer description that the State maintained answers file stamp no nor are the State sounds which may have occurred this tracks is the time of the offense rape of R J between 9 00 discovery there filed into the record Nevertheless prosecutor 2004 albeit discovery provided written explained that the grand jury indictment dated all of the offenses the defendant occurring in and that 2003 to R J spoke occurred at the 2004 or Nancy s testimony explained after the Christmas 2004 incident she day another time because of the way R J explained that he provided the defendant with written because he answers was s charged was with that when she thought the rape had expressed it The prosecutor also original trial counsel Chris Richaud unfamiliar with him and that at particular time it was 2004 The prosecutor indicated that when Marion Farmer the defendant counsel the State enrolled Farmer open file before position that the aggravated counsel signed to rape occurred October 25 2005 the prosecutor it on December 25 s he was granted not until trial Mr shortly that he learned that R J indicated the rape had occurred Thanksgiving presenting order According discovery Thanksgiving 2005 the previous be as s as The prosecutor went on to indicate the State would not any evidence that an aggravated rape occurred on December 25 2004 The defense counsel countered that all of the history given indication of a the doctor to Thanksgiving Day defense counsel further been addressed in In a between January incident indicating 1 2003 and December 25 2004 during Nancy deny s The testimony only The trial court noted that the the Court does 2004 statement The trial that the not was the date of the know what the position the mistrial 17 s noted that rape occurred discovery aggravated to occurred rape court also aggravated Regarding the issue of the State that December 25 2004 stated to came Day incident alleged the offenses including the aggravated Thanksgiving Day than Christmas argued that such references of other crimes should have prosecutor argued in his opening court a denying the defendant s motion for mistrial the instrument on to the pretrial hearing charging the related testimony including rape response the trial take in that regard other The articles prejudice that could arise from the defendant order regulating discovery to to prepare properly of the State strength constitute reversible 7 10 94 644 It has 2d So s by the failure State error State s answers they Mann 250 La can of the State 93 1435 Selvage v a to 1086 State an Ford s against him in misapprehension of the 6 p 10 3 262 discovery request actual bill of case may 1st Cir App 650 So 2d 1174 proof at trial 304 La The 1967 makes it particulars La 95 349 So 2d 300 1094 202 So 2d 259 the defendant be considered v s enable fully disclose such prejudice to 750 writ denied 94 2744 La recited in its bill of particulars v strength Discovery procedures been held that the State is limited in its long State the eliminate unwarranted to If a defendant is lulled into case 745 surprise testimony assess his defense intended are by the facts 1977 see nature of the questionable whether Nevertheless the State did represent that it maintained the aggravated rape charge occurred on December 25 2004 Louisiana Code of Criminal Procedure article 729 3 reqUIres promptly notify the other party and the evidence discovered after may compliance with impose sanctions when it is C Cr P art discovery 729 5 A or than dismissal article 729 5 is a drastic granting a its attention that an may be pennissive a order The court party has failed order issued pursuant thereto ordering continuance excluding the evidence discovery or the party ordering entering a to to La permit the mistrial on such other order the other Louisiana Code of Criminal Procedure appropriate and does not mandate any particular remedy Mistrial is remedy which should be granted only when the defendant suffers substantial fair trial as or to party of the existence of additional earlier These sanctions include inspection defendant s motion an to brought comply with discovery and inspection court a such prejudice that he has been deprived of any reasonable expectation of a Failure to comply with discovery 18 merits a mistrial only when the State s conduct affects the defendant substantially Mitchell 412 So 2d 1042 So 2d 688 at 749 50 13 p when it rises or App 2nd Cir La La 5 10 02 815 2d So In Mitchell conduct that case a legal affected the victim and moved for The supreme the letter s 786 So 2d 289 298 defendant might behalf a a defendant s right to prepare his right or Because the State even should have been s a Black 34 v a a defense In that juvenile On the letter written the parents wherein he sought their forgiveness It to prior the to prepare aware a provided the The defendant contents at 1043 44 to court defense and a beginning a defense of his The testimony that the also noted that court of the existence of the letter he may have including failure the supreme to prepare 644 found that if the State had furnished the defendant with have had time s 5 6 v by mistrial Mitchell 412 So 2d a different trial strategy type of evidence State Supreme Court addressed what constituted with indecent behavior with s arguably had the defendant been pursued see writ denied 2001 1781 examination of the defendant that it cross court trial to prior defense defect State defense with notice of the existence of the letter and its objected a 93 1435 at pp Selvage day of trial the prosecutor received until the State not was sent to 1982 the level of 5 9 01 charged was of the second La to prepare 831 substantially defendant and to the Louisiana the defendant morning 1044 45 right s the choice of not abide testifying by its continuing duty to held that the defendant had been mistrial should have been prevented from introducing the letter his own disclose this prejudiced in granted Mitchell on or the State 412 So 2d at 1044 45 In State court 5 was v Smith faced with 489 a or 255 La App 5th Cir 1986 on rehearing the similar situation wherein the State failed The defendant in Mitchell had statements and 2d So sought discovery admissions 19 on any inculpatory to evidence fulfill its confession discovery obligations crime against In that After open file nature that the defendant had made victim The prosecutor defendant s trial The existence of such a substantial failure s Smith In the defend 25 present against 2004 as aggravated allegations of arose on aggravated the ie disclose the to Following right Mitchell the statement his defense to prepare s in was to provided 2004 defend to on Day incident had against from that date he could have called witnesses to alleged an were and had he been Thanksgiving trial the The defendant argues that for the Christmas attempting to December discovery yet asserted at The defendant also maintains that there home for him impossible rape when the State Thanksgiving Day him to offense the Jenkins at duty a the statement at conviction and remanded the matter for further physical evidence found evidentiary value guests s s the defendant argues that it case rape occurred Thanksgiving Day he had molested the 489 So 2d at 264 charge was no indicating disclose the existence of this the date of the offense in response the fact there no the his wife of the defendant The court reversed the defendant proceedings to aggravated granted the prosecutor learned was he discovered it as soon as with charged held that the prosecutor had court right was then allowed to introduce this was fifth circuit held that the State impaired discovery statement to a statement a the defendant case many aware the dispute that charge We agree defendant State was occurred Nancy to s The State s have received a operating during own under actions in this fair trial the testimony it was learned that R J associated the the defendant To the not entirely too prejudicial for the Clearly when this investigation began the theory the December 25 case are that the allegation of aggravated 2004 incident at the Jenkins until just prior to Thanksgiving s home 2005 rape By that she previous Thanksgiving holiday with being raped by contrary the State 20 s written responses to the defendant s discovery requests indicated the rape occurred on December 25 2004 Although the prosecutor maintained that he offered after Mr Farmer discovery no replaced the indication that Mr Farmer State s the bill of to answer 2005 revelation by was defendant original s in was erroneous supplemented its discovery continuing duty was to charge allegedly in light answers one count committed of the other counts attempting to prepare granting a depends 1141 1984 There continuance aggravated 2004 State v 1983 all 106 S Ct 196 constitutes reversible the State in violation of its We note the defendant rape and that victim charge The important more was the only severity of to fashioning cert error By not case See State this State s accused an s 21 failure to a v to a recess or 1985 cert Although the trial of the remedy Knighton 104 S Ct 1330 1309 La changed being 1985 La remedy the propriety a denied 465 U S 1051 offense had by calling 464 So 2d 262 264 88 L Ed 2d 165 Norwood 396 So 2d 1307 alleged the Busby v Under these circumstances the State date of the 729 3 the effect of late disclosure upon the circumstances of the La art change earlier Trial in this that evidence no reflect this to 2004 charged against the defendant makes the See State wide discretion in 1153 is Day s to defense courts may offset denied 474 U S 873 court has a of Christmas against this particular identification of December 25 Trial 2006 on disclose under La C Cr P only charged with offense rape occurred 28 August on claiming was 2004 which contradicted the State raped on Thanksgiving Day began in the R J to her mother allegation that the aggravated matter provided light of the November It is clear that in November 2005 the State learned that R J have been open file trial counsel there is informed that the date ever particulars Mr Farmer 436 So 2d 79 L Ed 725 1981 notify the defendant that the completely infonned that different following holiday the defendant s arrest for the December 25 2004 Thanksgiving Day substantially affected offense he is 2004 incident R J later claimed the rape occurred the defendant It is inherently unfair with occurred charged different date of offense We cannot preparation of his defense revealed cross an of a allegation on to a defendant to how such Thanksgiving Day defense a Moreover trial at not Nancy alleged in the indictment placed the defendant on offense that differed from the date persuaded severity mistrial should have been This assignment and provided by the State was a affect the testimony against a s credibility that the range of dates notice that he would be tried with particular charge differed from the remainder of the bill of indictment in s allege 2004 incident the defendant had not not an occurrence was inform him that the could an error The record indicates that until we are This present examined any of the witnesses the State used to bolster R J about such an to specific date then a see right s on s discovery counts responses contained in the different victim Accordingly a granted of error has merit PRO SE ASSIGNMENT OF ERROR The defendant filed a pro se brief raising in assign appropriate responsive verdicts 814 A 8 1 asserts the we we have In with this assignment of court with La accordance error already addressed the sufficiency of the evidence only objection that the trial court made by remainder of the disputed portion charge is erroneous on the C Cr P reference to art We note that in this matter to grounds of an However jury charges clothing objection was overruled by the trial A conviction will not be overturned unless the a failed the defendant also the defense counsel to the unnecessarily inserted definition of sexual battery which charge that the trial sufficiency of the evidence used to support his conviction note that the was conjunction as error in the court erroneous jury when considered in connection with the and 22 prejudicial An erroneous instruction is subject harmless to counsel claim The review error error is instruction did unimportant in the record harmless it appears charge State 199 200 stated earlier evidence contribute in relation to is whether the error So 2d 194 not the thus v the jury the guilty verdict Cooper find any error was prejudiced by the reasonable doubt a finding of guilt or the jury considered surely was 2005 2070 verdict of s s ineffective assistance of an error that the whether the revealed as appropriate standard for determining p writ denied 2006 1314 jury we to beyond everything else Stated another way error of case analysis of whether the defendant an question becomes whether erroneous in the or 9 La regarding App 18t Cir La 11 22 06 of sexual guilty unattributable to the jury 5 5 06 935 942 So 2d 554 battery As is the supported by the definition of sexual battery be to harmless This is not the only error that the defendant noted above he raised the issue of the C Cr P art considered 801 A 814 A on appeal and 841 defendant has This not 8 1 6 a jury charge contemporaneous objection 2005 2070 at p Cooper preserved As complains of on appeal appropriate responsive verdicts under A claim that ifno now was was improper made not be La C CrP arts 8 935 So 2d at 199 any other issue for review will La Accordingly the regarding the jury charges assignment of error lacks merit CONCLUSION In reversmg the defendant s remand this matter for a charged with of jury returned one a count new error We note that the defendant trial aggravated rape against RI In his 5 La This list of responsive verdicts was n 14 5 02 817 So 2d 16 21 was we originally n In State 23 v 5 the Louisiana added in 2006 and took effect less than two weeks to the instant trial must previous trial the responsive verdict of guilty of sexual battery Simmons 2001 0293 p 7 6 conviction because of trial prior Supreme Court noted that under La offense is an could be retried not when the acquittal jury returned erred in refusing of criminal trespass charge a a an charged charge on a unauthorized entry of court of the C Cr P offense 598 art of unauthorized entry of inhabited dwelling the defendant s request inhabited an The supreme to inhabited the lesser crime of court case dwelling attempted found the trial instruct the jury that the offense misdemeanor offense would be an lesser a Therefore the defendant in that responsive verdict of of unauthorized entry of conviction of a a responsive verdict to the dwelling Louisiana Code of Criminal Procedure article 598 A states guilty of a lesser degree of the offense charged the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot When a person is found thereafter be tried for those offenses The Louisiana because under La C Cr P a the defendant having been greater offense with which he art 598 A he was can only be acquitted of retried for the offense of sexual aggravated rape because the sentence battery against returned jury a RI responsive charge third counseled F or the above and his originally charged acquitted of that charge when the Because of the result achieved in this matter s was responsive verdict of a lesser charge Likewise in the present case verdict of a lesser defendant trial Supreme Court in Simmons reasoned that the defendant could not be retried for the jury returned on a new pretermit discussion of the assignment of error regarding his foregoing vacated and this consistent with the views we reasons matter expressed the defendant is remanded for in this s a new sentence conviction is reversed trial on sexual battery opinion CONVICTION REVERSED SENTENCE VACATED REMANDED FOR NEW TRIAL 24
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