State Of Louisiana VS Dallas Trahan, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 2077 STATE OF LOUISIANA VERSUS DALLAS TRAHAN JR Judgment Rendered G UN 0 4 2010 Appealed from the Second Thirty Judicial District Court In and for the Parish of Tenebonne State of Louisiana Case Number 464 472 Honorable Randall L Bethancourt Presiding Joseph L Waitz Jr Counsel for Appellee District Attorney Ellen Daigle Doskey Assistant District Attorney State of Louisiana Houma LA Margaret S Sollars Counsel for Louisiana DefendanUAppellant Appellate Project Thibodaux LA Dallas Trahan Jr BEFORE CARTER C GUIDRY AND PETTIGREW JJ J l C tN GUIDRY J The defendant Dallas Trahan Jr was charged by grand jury indictment with two counts of aggravated rape violations of La R S defendant entered a plea of not guilty 4 42A 14 The After a trial by jury the defendant was found guilty as charged on both counts The defendant was sentenced to life imprisonment at hard labor without the benefit of probation or suspension of sentence on both counts to be served consecutively The defendant now appeals assigning as error the trial court denial of his challenges for cause of prospective s jurors Mark Marchand Faye Daigle Sherri Roach and Amy Billiot and the admission of other crimes evidence The defendant filed a pro se supplemental brief wherein he argues that the trial court erred in denying his motion to suppress evidence For the following reasons we affirin the convictions and sentences STATEMENT OF FACT5 While the specific dates are uncertain the instant offenses were alleged to have occurred between January 1 2003 and January 31 2006 in Terrebonne Parish The defendant is the father of the child victims in this case H and K T T as a result of his relationship with and marriage to his second wife K the D victims mother divorced The defendant obtained custody of the victims afrer he and K D T K is the defendant biological child while the defendant adopted s T H who was six months old when the defendant met K H date of birth is D T s July 4 1996 and she was eleven years old and in the fifth grade at the time of trial February 22 19 2008 During her trial testimony H recalled watching T pornographic movies with the defendant and her younger sister K T T H testified that one night after watching such movies the defendant removed all of her clothing She also stated h tried putting stuff in me and he e Herein we refer to the victims by initials only See La R 46 S 1844W 3 2 started rubbing against me The defendant was not wearing any clothes at the time H further indicated that the defendant rubbed her private part with his T private part and put his private part in her private part She stated that the defendant was lying on top of her at the time and that his private part did not go all the way in H stated that the defendant did the same thing to K as he did to T T her T ed H recal an episode wherein the defendant started moving his private up and down real fast and something came out She stated that the defendant made her and K lick and swallow the white stuff from his private part H T T also testified that the defendant took nude photographs of her and K as well as T a picture ofhis private part on top ofher private part T K was ten years of age at the time of the trial and her date of birth is October 31 1997 K remembered an occasion when the defendant had a fight T with his fiancée Sherry Rodrigue who was living with them but had left the house after the fight The defendant told K and H to take their clothes off T T and lie on his bed K testified that the defendant was not wearing any clothes T when he started touching K and her sister in their private parts with h T is private part She stated h tried to stick his private part in mine adding i e t hurt K told the defendant to stop and he complied She also testified that the T defendant made her touch his private part with her mouth and made her sister lick something white that came out of his private part The defendant also wanted her to lick the substance but she refused She saw the white substance come from the s defendant private part and watched her sister lick it T K further testified that during one incident the defendant attempted to put his private part in her buttocks while she was in the bathroom Specifically the defendant to her to go into the d bathroom and further instructed her to lie over the side of the bathtub defendant stood behind her and tried to put his private part in her buttocks 3 The COUNSELED ASSIGNMENT OF ERROR NUMBER ONE In his first counseled assignment of error the defendant contends that the trial court should have granted his challenges for cause of prospective jurors Mark Marchand Faye Daigle Sherri Roach Stacey Bauer and Amy Billiot The defendant notes that he asked that these jurors be excused because they could not follow the law and orthey were incapable of giving their full attention to the case As to Marchand the defendant specifically notes that he knew the prosecutor and several police officers The defendant further notes that Marchand was self and was concerned that serving on a jury would cause him employed financial loss Marchand also expressed his dislike of defense attorneys The defendant notes that Daigle was challenged because she remotely knew the prosecutor and was related to an assistant district attorney and a sheriffs deputy The defendant further notes that Daigle store had been broken into and s she was pleased with the way the police handled it Further Daigle served on the board of a local domestic violence shelter as a fundraiser As to prospective juror Roach the defendant notes that she had a professional relationship with the district attorney investigator believed that s inconsistencies in the victims testimony did not negate the possibility of some level of truthfulness and that she would hold the defense to a higher burden of proof because children were involved The defendant notes that Bauer had concerns about obtaining a babysitter and that she believed the defendant had to prove he was innocent because she sided with children The defendant further notes that upon reBauer questioning stated that she believed the defendant was more guilty than not She also stated that it would be difficult to put her feelings aside but she would accept the law Billiot said Dr Sangisetty a potential witness was her children s pediatrician and Billiot described her as an excellent doctor 4 Further Billiot s brother had been molested as a child Billiot also had babysitter concerns She stated that she could put her brother molestation aside and decide the case based s on the testimony but indicated that she may require the defense to prove the s defendant innocence The defendant argues that the trial court committed reversible error in not excusing the above challenged prospective jurors The defendant contends listed that none of these jurors were qualified to serve in this case because they all expressed sincere negative opinions and doubts as to their ability to follow the or law and to be fair The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial whatever the cause of his partiality or on the ground that the juror will not accept the law as given to him by the court La C Cr P art 2 797 4 797 For a defendant to prove reversible error warranting reversal of both his conviction and sentence he need only show the following 1 erroneous denial of a challenge for cause and 2 use of all his peremptory challenges Prejudice is presumed when a defendant challenge far cause is erroneously s denied and the defendant exhausts all his peremptory challenges An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error State v Taylor 03 pp 5 La 1834 6 04 25 5 875 So 2d 58 62 A challenge for cause should be granted even when a prospective juror declares his ability to remain impartial if the prospective juror responses as a s whole reveal facts from which bias prejudice or inability to render judgment The rule is now different at the federal level See U v MarCinez 28 U 304 317 S Salazar S 120 S 774 782 145 L 792 2000 exhaustion of peremptory challenges does not Ct 2d Ed trigger automatic presumption of prejudice arising from trial court enoneous denial of a cause s challenge 5 according to the law may reasonably be inferred However the trial court is vested with broad discretion in ruling on a challenge for cause its ruling will noY be disturbed on appeal absent a showing of an abuse of discretion State v Henderson 99 p 9 App lst Cir 6 762 So 2d 747 754 writ 1945 La 00 23 denied 00 La 6 793 So 2d 1235 A trial judge refusal to excuse a 2223 O1 15 s prospective juror for cause is not an abuse of his discretion notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense when subsequently on further inquiry or instruction he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence State v Tavlor 03 atp 6 875 So at 63 1834 2d In accordance with La C Cr P art 799 the defendant was entitled to twelve peremptory challenges In this case the defendant exhausted his peremptory challenges Thus an erroneous denial of a challenge far cause in this case is presumptively prejudicial As noted by the defendant prospective juror Marchand raised his hand to indicate that he knew the Assistant District Attorney Bud Barnes because he represented Marchand for a traffic violation about fifteen years before the trial Marchand added that Barnes did a good job When asked if he thought this would cause him to be biased in favor of the State Marchand stated it would not Marchand also stated that he thought he could be fair and impartial but added that he knew the defendant because he dated one of Marchand cousins s Marchand further knew Corey Johnson a police officer with the Houma Police Department and Kerry Bergeron with the Terrebonne Parish Sheriffs Office He stated that he was friends with several police officers and that it might cause him a problem He saw them once or twice a month and some of them weekly or every two or three days Marchand stated that he did not think he would be subject to ridicule if he sided with the defense and that he would not 6 automatically side with the State because of his friendships He stated that he heard about other cases where people get off for a technicality but confirmed that he had not read anything about the instant case When asked if he could decide the case based not on preconceived notions but on the evidence and be fair and impartial he stated Yes I guess I could t not sure it depends on what the m evidence would show and all but The trial judge then abruptly stated Faii enough When the trial court asked the prospective jurors to indicate any personal or business concerns Marchand stated that he was self and employed would not be paid ifhe did not work When Barnes the State began addressing the prospective jurors he presented lengthy commentary regarding Marchand relationship with members of s law enforcement and the duty of prospective jurors to put aside sympathies and base their decision on the evidence Barnes commended Marchand response s quoted above wherein he stated it depends on the evidence reiterating that it was the correct basis for a decision Marchand confirmed that he could follow the law When the defense attorney addressed the prospective juror Marchand in pertinent part statEd I think that I can look at the evidence and see what the evidence states and see if he is guilty or if he is innocent but I can tstand when a little technicality comes about there all kind of evidence on the s board and a defense lawyer comes up with some kind of stupid technicality and a man geYs off for doing a crime like that Marchand added that he did not mean for the defense attorney to take his comment personally but that is how he feels about defense lawyers When asked about his work concems Marchand confirmed that an extended trial would cause him financial burden Daigle indicated she knew Barnes only in passing as they both worked downtown but that this would not cause her a problem in being fair and impartial 7 She saw and had contact with police officers on a regular basis and had friends or in various police departments She specifically stated that would not influence my decisions of what I make in this courtroom Daigle also stated that Assistant District Attorney Ellen Doskey is her husband first cousin that she had not seen s her in a month or talked about the case with her and that the relationship would not cause her problems in being fair ar in having any discussions about the case When questioned in regard to relatives in the law enforcement agencies Daigle stated that her nephew Carey Voisin worked for the sheriffs office that she did not see him often and that it would not cause her to be unfair She repeatedly indicated that she could be fair and impartial Also Daigle store was vandalized s and she was happy with the way the case was handled She stated that it did not pertain to anything in this case and responded negatively when asked if it would sway her Daigle also informed the court that she knew the defense paralegal or investigator as a customer but that it was inconsequential as it would not change anything Finally Daigle stated that her position as a fundraiser on a domestic violence shelter board held five years befare the trial would not influence her decision and that she did not have any personal contact with the victims during her service on the board Daigle also stated as follows I would be very fair Just because I know a lot of legal people doesn tmean I wouldn tbe totally open minded to what going on in this courtroom s Roach stated that she knew Dana Davis a potential witness on a professional level but added that she would not be persuaded She specifically stated that she could listen to her testimony and make a decision She did not think she would be influenced by the fact that she knew Davis When the defense asked the prospective jurors if they would hold it against him if he had to cross examine a child Roach stated 8 You said and I don know if that something we supposed t s re to discuss or anything earlier talking about inconsistencies I have no idea how old these children are but that would be a factor I don t know how long ago this happened That also would be a factor I maybe re just because what they saying is inconsistent there are some inconsistencies doesn mean that maybe there not t s think that some truth there sa The defense attorney acknowledged that he would not be asking the jury to find the defendant not guilty solely based on inconsistencies but to consider them in assessing the weight of the evidence for a finding of proof beyond a reasonable doubt Roach stated y she would be able to do so adding that the es involvement of children was a bigger burden on the defense than the State All of the jurars ageed that their decisions would not be based on sympathy or prejudice When the second panel was questioned regarding personal or business concerns Bauer indicated that her only concern was that she did not have a back up babysitter to relieve her mother if her mother had to tend to another family member Regarding the burden of proof Bauer stated I do believe that you would have to prove it more that he innocent s than what the State is going to prove him as guilty Just because of having a daughter I side more with the child than what I going to m side with the guy that you going to try to defend re The defense attorney then provided a lengthy commentary including the burden of proof applied to the State evidence and that the defense need not prove anything s After the defense challenged Bauer the State argued that she may have been confused when she gave the response in question noting that prospective jurors are not lawyers The trial court brought Bauer back far further questioning Bauer initially repeated her above quoted sentiment After further questioning by the Yrial court as to whether she would hold the defendant guilty or innocent before the State presented any evidence she stated w hearing anything Pm going to have ithout to say not guilty I haven theard anything Bauer also stated I sure there m s 9 going to be probably graphic evidence that going to make me sick to my s stomach She again stated that she would require the defendant to prove his innocence and that it would be hard to be completely impartial She conceded that she would try to be impartial would base her decision on the evidence alone and would accept the law including the fact that the defendant did not have the burden of proving anything and would not hold it against the defendant if he did not testify Upon questioning by the State Bauer confirmed that she could put her feelings aside regarding children and base her decision on the evidence She indicated that she would have a problem with the evidence if it did not convince her of guilt beyond a reasonable doubt and would make a decision on that basis and not on sympathy The State reiterated that it was its burden to prove the defendant guilty and that the defendant was not required by law to prove his innocence and Bauer indicated that she understood and could follow the law When the defense questioned Bauer she stated in pertinent part Right now what Ibe come to is I have to put my personal feeling of this aside and go by whatever is presented as far as evidence to decide guilty or not guilty Upon further questioning by the defense attarney she stated that she had been instructed to put sympathy aside adding that what I have to do s As noted by the defendant Billiot stated that she knew a potential wiYness Dr Sangisetty her children pediatrician She indicated that she would not have s any preconceived notions regarding the doctor testimony and would decide the s case based on the testimony Billiot responded negatively when asked if the molestation of her brother when he was younger would cause her problems in this case She confirmed that she could put that instance aside and base her decision on the evidence presented She also stated that she had concerns about her children after school care but stated that she would try to make arrangements for childcare 10 Billiot was further questioned by the defense regarding the affect of her s brother molestation She indicated that it was difficult to make a prediction but she did not think it would cause problems with this case She noted that she had children and confirmed that she wanted the defense to prove the defendant innocent when specifically asked by the defense counsel s do you think o because of that and your life experiences that you would in your heart of hearts really want me to prove to you that Dallas did not do it After the defense stated the law as to the State sburden and the defendant slack of a burden Billiot stated Pd like to think that I could put the things aside and you know innocent unril proven guilty The defense attorney discussed the order of the trial and noted that people are going to stick to their stories The defense attorney then asked if he would be held to a burden of proving the defendanYs innocence and Billiot responded Yes When the defense challenged Billiot for cause the State argued that her second response regarding the burden was a result of the framing of the s defense question The trial court stated she seemed clear and articulate and did not dismiss her for cause Based on our thorough review of the responses at issue we find that the trial court did not abuse its broad discretion in denying the challenges for cause at issue The potential jurors at issue were very open and forthcoming with any information that they thought may be noteworthy Despite the concern raised by some responses these prospective jurors demonstrated a willingness and ability to decide the case impartially according to the law and the evidence Specifically Marchand indicated that he would base his decision on the evidence and did not state that his financial concerns would cause him to disregard the law or evidence confidently and repeatedly conveyed her ability to be fair and thorough measures Bauer was successfully rehabilitated she stated that the defendant was innocent 11 Daigle impartial By In Billiot own words s until proven guilty After this response the defense re the question and obtained a positive response as to framed whether the defendant had to prove he was innocent after the State presented its witnesses Nevertheless based on Billiot responses as a whole we are convinced s that she would follow the law as instructed and not hold the defendant to a burden of proo We find that the responses of the prospective jurors in question when considered as a whole did not reveal facts from which bias prejudice or inability to render judgment according to the law could reasonably be inferred This assignment of error lacks merit COUNSELED ASSIGNMENT OF ERROR NUMBER TWO In the second counseled assignment of error the defendant contends that the trial court failed to weigh or test other alleged acts of sexual misconduct offered by the State before admitting the evidence The defendant argues that the evidence consisted of supposition and unproven contentions and did not support the State s claims Detective Robert Moore testified about a compiaint he investigated that was made against the defendant in Lafayette in 2003 The defendant gave a statement during the investigation denying molesting his stepdaughter S but added that if anything happened it was because he was on medications The defendant notes at tt this alleged incident was not related to the instant offenses and that no prosecution resulted from that investigation Regarding the complaint the defendant notes that S was allowed to testify that the defendant touched her inappropriately underneath her clothing when she was about eleven years old although she previously recanted the allegation more than once The defendant further notes that the State was allowed to introduce testimony regarding a pornographic picture of an alleged pre girl between eight and ten years pubescent old that was placed on the internet and found in the defendant computer s although the investigator who identified the girl Detective Thomas Conner did 12 not know how many times the picture was downloaded or if the defendant had any contact with the victim Finally the defendant notes that the State introduced testimony by Rebecca Hyson about her consensual sexual relationship Simpkins with the defendant many years earlier when she was fifteen years of age and the defendant was twenty years of age The defendant contends that the consensual sex with Hyson Simpkins occurred in 1988 before La C art 412 was enacted in 200L E 2 Thus the defendant argues that the evidence presented by Hyson should have been Simpkins barred because the application of Article 412 is prohibited by the ex post facto 2 clauses of the Louisiana and United States Constitutions The defendant further argues that half of the evidence presented was not relevant to the instant offenses and was never subjected to any burden of proof The defendant contends that the evidence was an assault on his character The defendant alternatively argues that the law does not mandate such inflammatory and emotional evidence go before a jury noting that Article 412 says that certain 2 evidence may be admissible The defendant also notes that pursuant to La C E art 403 the evidence must be relevant and probative The defendant argues that the mass and variety of the other crimes evidence created a substantial if not definite risk of luring jurors into deciding the case based on the defendant criminal disposition as opposed to specific evidence of s the instant offenses Contending that the evidence was speculative uncorroborated and more sensational than factual the defendant concludes that the weight and relevance of the evidence at issue did not support its admissibility The defendant concludes that the evidence at issue was not proven clearly and convincingly and that the presentation of the evidence of alleged other crimes denied him a fair trial 13 Evidence of other crimes wrongs or acts is generally inadmissible to impeach the character of the accused La C art 404B see State v Talbert 4l6 E So 2d 97 99 La 1982 State v Prieur 277 So 2d 126 128 La 1973 However such evidence may be admissible to prove motive opportunity intent preparation plan knowledge identity absence of mistake or accident La C E art 404B The State bears the burden of proving that the defendant committed 1 the other crimes wrongs or acts State v Rose 06 p 12 La 2949 0402 07 22 So 2d 1236 1243 Louisiana Code of Evidence article 412 2provides A When an accused is charged with a crime involving sexually assaultive behavior or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense evidence of the accused commission of another crime s wrong or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403 B In a case in which the state intends to offer evidence under the provisions of this Article the prosecution shall upon request of the accused provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such puiposes C This Article shall not be construed to limit the admission or consideration of evidence under any other rule To the extent that the defendant argues that the admissibility of the evidence should have been determined after a pretrial hearing we note that Article 412 2 does not require the trial court to hold a pretrial hearing prior to admitting the evidence State v Williams 02 p 6 l0 830 So 2d 984 987 1030 La 15 02 3 The burden of proof in a pretrial hearing held in accordance with Prieur shall be identical to the burden of proof required by Federal Rules of Evidence Article IV Rule 404 La C art 1104 E The burden of proof required by Federal Rules of Evidence Article IV Rule 404 is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime wrong or act See Huddleston v U 485 U 681 685 108 S S S Ct 1446 1499 99 L 771 Q988 The Louisiana Supreme Court has yet to address the issue 2d Ed of the burden of proof required far the admission of other crimes evidence in liof the repeal ht of La C art 1103 and the addition of La C art 1104 E E However numerous Louisiana appellate courts including this court have held that the burden of proof is now less than clear and convincing See State v Williams 99 p 7 n La App lst Cir 9 769 So 2576 4 00 22 2d 730 734 n 4 14 The only requirement contained within the statute is that the evidence be deemed admissible pursuant to Article 403 In accordance with Article 403 relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury or by considerations ofundue delay or waste of time Article 412 was a legislative response to earlier decisions from the 2 Louisiana Supreme Court refusing to recognize a disposition exception to lustful the prohibition of other crimes evidence under La C art 404 The language of E Article 2 412 closely follows Fed R Evid 413 Thus the jurisprudence interpreting the federal rule is highly instructive See State v Wright 98 p 0601 La 7 App lst Cir 2 730 So 2d 485 489 writs denied 99 La 99 19 0802 99 29 10 748 So 2d 1157 0895 00 La 11 773 So 2d 732 00 17 The federal courts have determined that Fed R Evid 413 is based upon the premise that evidence of other sexual assaults is highly relevant to prove the propensity to commit like crimes and often justifies the risk of unfair prejudice See U v S Guardia 135 F 1326 1328 lOth Cir 1998 Generally a trial court ruling 3d 30 s on the admissibility of evidence of other crimes will not be overturned abserit an abuse of discretion State v Galliano 02 pp 3 La 1 839 So 2d 2849 4 03 l0 932 934 per curiam Article I 10 of the United States Constitution and La Const at I 23 prohibit ex post facto application of the criminal law by the State State v Everett 2998 00 p 13 La 5 816 So 2d 1272 1280 The United States Supreme 14l02 Court has identified four categories of law that violate the ex post facto prohibitiQn 1 any law that makes an action criminal that was innocent when done before the passing of the law 2 any law that aggravates a crime or makes it greater than it was when committed 3 any law that changes the punishment and inflicts greater punishment than the law provided when the crime was committed 15 and 4 any law that alters the legal rules of evidence and requires less or different testimony than was required at the Yime the offense was committed in order to obtain a conviction ers Ro v Tennessee 532 U 451 456 121 S 1693 S Ct 1697 49 L 697 2001 In State eX rel Olivieri v State 00 pp 14 2d Ed 0172 16 La 2 779 So 2d 735 744 cert denied 533 U 936 121 S 2566 O1 2l S Ct 150 L 730 2001 the Louisiana Supreme Court held that in determining 2d Ed whether there has been an ex post facto violation the analysis should focus on whether the new law redefines criminal conduct ar increases the penalty by which the conduct is punished and not whether the defendant has simply been disadvantaged The Louisiana Supreme Court has not decided whether the retroactive application of Article 412 is a violation of the ex post facto clause In footnote 2 two of State v MarQan 02 La 1 863 So 2d 520 per curiam the 3196 04 21 Supreme Court noted that the retroactive applicability of Article 412 remains an 2 open question Mor 02 at p 2 n 863 So 2d at 521 n The third an 3196 2 22 2 circuit has held that its retroactive application does not constitute an ex post facto violation State v Willis OS p 22 La App 3d Cir 11 915 So 2d 218 OS 2 365 383 writ denied 06 La 6 930 So 2d 973 cert denied 549 0186 06 23 S U 1052 127 S 668 166 L 5 2006 The third circuit found that Ct 2d Ed 14 Article 412 does not alter the amount of proof required in the defendant 2 scase as it merely pertains to the type of evidence that may be introduced Citing Willis the fifth circuit ruled similarly in State v Greene 06 pp 7 La App Sth 667 8 Cir 1 951 So 2d 1226 1231 writ denied 07 La 10 966 07 30 32 0546 07 26 So 2d 571 Prior to the enactment of Article 412 the type of evidence at issue 2 was admissible if it feli within an exception under La C art 404B Article E 2 412 removed that restriction Willis OS at p 22 915 So 2d at 383 218 16 Likewise we find that the fact the past sexual act occurred prior to the effective date of Article 412 is inconsequential Article 412 expanded the type 2 2 of evidence that may be introduced in the prosecution of certain sex offenses without altering the quantum of evidence required for a conviction The article does not redefine criminal conduct or increase the penalty by which it is punished Thus the ex post facto laws would not prohibit the application of Article 412 2to the presentcase In State v Buckenber 07 pp 10 La App lst Cir 2 984 er 1422 11 08 8 So 2d 751 757 writ denied 08 La ll 996 So 2d 1104 the 7 08 21 defendant was convicted of attempted second degree murder attempted forcible rape second degree kidnapping and two counts of public intimidation for attempting to run over the victim with his car and attempting to rape her in his car This court found that evidence of the defendant commission of other crimes s involving sexually assaultive behavior against two prior victims was admissible as the high probative value of the evidence regarding defendanYs propensity to use force to rape women in and near vehicles was not substantialty outweighed by the danger of unfair prejudice confusion of the issues ar misleading the jury or by considerations ofundue delay or waste of time Similarly in the instant case we find that the evidence of the defendant s commission of crimes involving sexually assaultive behavior against his stepdaughter against Hyson who was a minor while the defendant was Simpkins a twenty adult at the tirae of his admitted seXUal relationship with her old year and evidence of the defendant possession of a photograph consisting of child s pornography on his computer was admissible at trial The highly probative value of the evidence in regard to the defendant propensity to indulge in inappropriate s sexual behavior regarding children substantially outweighed the danger of unfair prejudice confusion of the issues misleading the jury or considerations of undue 17 delay or waste of time We further find that the evidence of the other acts was clear and convincing Based on the foregoing assessment the trial court did not err in admitting the testimony and evidence in question Assignment of error number two is without merit PRO SE ASSIGNMENT OF ERROR In the sole pro se assignment of error the defendant contends that the trial court erred in denying his motion to suppress evidence seized in violation of his constitutional rights The defendant notes that one computer was seized from his person and three home computers were voluntarily transferred to the police by his girlfriend Rodrigue The defendant specifically contends that computers were illegally seized without valid consent from his person and home and that the fruits of the search of those computers should have been suppressed The defendant contends that the subsequent acquisition of a warrant to search the computers did not cure the illegal seizure of them The defendant specifically notes that Rodrigue did not purchase or own the computers and did not have the right or consent to transfer possession of them The defendant also notes that Detective Cher Pitre was informed that only the desktop computer possibly belonged to Rodrigue and that the rest of the computers belonged to the defendant The defendant argues that Detective Pitre had notice that the defendant had an expectation of privacy in the computers and that seizure of them required a valid warrant The defendant further argues that consent to search from Rodrigue does not curtail his right to object to and challenge the legality of the search and seizure of his computers from his residence and person The defendant contends that Detective Pitre could not have reasonably believed that Rodrigue had authority to consent to the search and seizure of his computers merely because she lived at the residence 18 The Fourth Amendment to the United States Constitution and Article I of the Louisiana Constitution prohibit unreasonable searches and seizures 5 It is well settled that a search warrant is required unless one of the narrowly drawn exceptions to that requirement is present A valid consent to search is such an exception U v Matlock 415 U 164 171 94 S 988 993 39 L 242 S 5 Ct 2d Ed 197a The consent to search is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects soughC to be inspected Common autharity is based on mutual use of the property by persons generally having joint access or control for most purposes Matlock 415 U at 171 n 94 S at 993 n S 7 Ct 7 A warrantless search may be valid even if consent was given by one without authority if facts available to officers at the time of entry justified the officers reasonable albeit erroneous belief that the one consenting to the search had authority over the premises Illinois v Rodriguez 497 U 177 185 ll0 S 2793 2799 S 89 Ct 2802 111 L 148 1990 The trial court ruling on a morion to suppress is entitled 2d Ed s to great weight State v Horton 01 p 9 6 820 So 2d 556 562 2529 La 21 02 To determine whether the trial court denial of the motion to suppress is correct s the appellate court may consider evidence adduced at the suppression hearing as well as evidence presented at trial State v Le OS p 10 La 7 er 0011 10i06 936 So 2d 108 122 cert denied 549 U 1221 127 S 1279 167 L 100 S Ct 2d Ed 2007 At the motion to suppress hearing herein the defendant argued as on appeal that the evidence in question was illegally seized and that the subsequent search was fruit of a poisonous tree The State argued that the computers were not seized as Rodrigue presuming that she was in control of the property at the time voluntarily relinquished the computers to the police The State further noted that the police subsequently obtained a warrant to search the computers 19 Detective Pitre testified that Rodrigue relinquished three computers to the police consisting of a desktop and two laptops Another laptop was obtained from the defendant at the time of his arrest pursuant to an outstanding arrest warrant Detective Pitre testified that Rodrigue lived at the residence had control over the computers and voluntarily consented to the transfer The computer obtained at the s defendant arrest was located in his knapsack pursuant to a search of the bag for weapons upon the defendant arrest Detective Pitre testified that the defendant s consented to the transfer of possession and signed an evidence release form dated February 3 2006 On March 3 2006 Detective Pitre obtained a search warrant for all of the computers The defendant testified at the hearing He stated that he was working offshore at the time of his arrest Two officers arrived by helicopter and entered his office The defendant stated that he was informed that he was being brought in and that the officers also needed to bring his girlfriend computer camera and s any other electronic device The defendant further stated that an ofticer packed his computer and camera into his bag and searched his person before handcuffing him and escorting him to the helicopter The defendant stated that when he signed the evidence release form he thought it was an inventory list and that he did not voluntarily consent to the seizure of the items The defendant further testified that he purchased ali of the computers The defendant stated that one of the home computers was being repaired by the manufacturer when the police collected the others Rodrigue took the computer to the police after it was returned from the manufacturer The defendant stated that he purchased the desktop computer for business purposes The defendant admitted that Rodrigue had access to the desktop for her personal use but reiterated that it was not her computer The defendant stated that Rodrigue did not have the right to transfer possession of the computers 20 In denying the motion to suppress the trial court found that after the computers were in police custody a search warrant was properly obtained and executed The trial court concluded that the defendant rights were not violated s before the search warrant was obtained and validly executed During the trial Rodrigue testified that she and the defendant were engaged Yo be married and living together at the time of the offenses and that the defendant was the sole financial provider for the household The defendant and Rodrigue shared a joint bank account wherein the defendant spayroll checks were deposited and while the defendant worked she paid the bills from the joint account Rodrigue also testified that she often used the computer when the defendant was away at work When questioned regarding the computers that the couple owned Rodrigue stated he had his Alienware I had a desktop And we had two HP laptops The defendant left one of the laptops in the home for her use when he purchased an upgraded laptop He later purchased the desktop as a gift to Rodrigue Rodrigue further testified that she voluntarily consented to the search of the home and the seizure of the computers and vo delivered the computer untarily that was being repaired to the police Rodrigue further testified that she considered everything they owned to be their property together She further concluded that she had control and access over the computers that she released to the police Detective Pitre trial testimony consistent with her testimony at the motion s to suppress hearing indicated that the defendant was in possession of a knapsack at the time of his arrest The knapsack was searched for weapons The computer was inside the knapsack at the time She further testified that the defendant consented to the seizure of the computer and the other items in the knapsack and signed an evidence release form The computers were searched after the search warrant was obtained 21 Based on her testimony Rodrigue had access to the computers in question Rodrigue had common authority to consent to the search and seizure of the computers based on joint access or control See U v Richard 994 F 244 S 2d 250 Sth Cir 1993 We find that the defendant failed to rebut the valid consent to the search given by a person the detectives reasonably believed had authority to permit the search and seizure Regarding the computer seized from the defendant at the time of the arrest the evidence presented by the State indicated that the evidence was seized pursuant to a lawful search incident to an arrest on the outstanding arrest warrant See State v Hill 97 p 8 l lJbi98 725 So 2551 La 2d 1282 1286 searching The officers herein obtained a valid search warrant before the computers in question for evidence Based on the foregoing circumstances we find no abuse of discretion in the trial court denial of the s motion to suppress evidence This sole pro se assignment of error lacks merit CONCLUSION Based on our review of the proceedings and evidence presented we find no error in the trial court rulings regarding the jury selection the admissibility of s other crimes evidence and the denial of the motion to suppress Accordingly we affirm defendant convictions of two counts of aggravated rape and the related s sentences CONVICTIONS AND SENTENCES AFFIRMED Based on our review of the record the evidence wnsisting of pornographic images ultimately admitted during the trial was extracted from the HP Pavilion laptop computer that was seized from the defendant at the time of his arrest The computer had three user account names Da11as Dave and Sherry Trahan The images were found under the password protected Dallas account recycle bin and temporary internet files 22
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