State Of Louisiana VS Roy L. Estep
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NOT DESIGNATED FOR PUBLICATION STATE OF QLiISIANA CJiJR'I OF APPEA.L ItIRST (,'IRCL? IT NO. 2013 k o)/ / 06? ryv J/ STATE OF LOUISIANA VERSUS ROY L. ESTEP Judgment Rendered: 1 8 Z' On Appeal from the 22°a Judicial District Court, In and for the Parish of St. Tammany, State of Louisiana Trial Court No. 465865 The Honorable William J. Burris, Judge Presiding Walter P. Reed, Attorneys for Plaintiff/Appellee, District State of Louisiana Attorney Covington, Louisiana and Kathryn W. Landry Baton Rouge, Louisiana Ho11i. Herrle- Castillo Marrero, Louisiana Attorney foz Defendant/Appellant, Roy L. Estep BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. CRAIN, J. The defendant, Roy L. Est:.p, was charg a by grand jurv indictment with aggravated incest, a violation oY Louisiana Revised Statute 14: 781. He pled not guilty. After a trial by jury, he was found guilty as charged. The trial cotut denied the defendant' s motion fox postverdict judgment of acquittal and motion for new trial, and sentenced him to sever years im ri onment at hard labar. l The defendant appeals challenging the suf ciency f the evidence and claiming that the trial court erred in admitting other crimes evidence, denying the motion to continue, admitting hearsay evidence, and excluding evidence of priar molestation allegations by the victim and her family. We affirm the conviction and sentence. STATEMENT OF FACTS The defendant is the step- great- grandfather of the victim, M.G.2 When M.G. was nine years old and in the second grade, the defendant began touching her inappropriately. The incidents of abuse took place in the basement-like area in the defendant' s home and in his bedroom. The first incident occurred when M.G. and the defendant were talking and he grabbed her, unbuttoned her pants, pulled down her zipper, put his hand underneath her underwear, and touched the outside and inside of her vagina with his fingers. The same behavior occurred during the other incidents of abuse. M.G. indicated that the defendant committed the acts when they were alone, and that her great-grandmother, who had limited mobility and was confined to a wheelchair, was unaware of the incidents. After watching a video at school about inappropriate touching, M.G. disclosed the abuse to V.G., her younger sister. V.G. then disclosed the abuse to their parents. Two days later, The minutes indicate that the sentence was imposed without the benefit of probation, parole, ar suspension of sentence. However, the sentencing transcript reflects that the trial court imposed the sentence without restricting parole eligibility. Where a discrepancy exists between the minutes and the txanscript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). 2 M.G. was interviewed by forensic interviewer Jo Beth Richols of the Children' s Advocacy Center ( CAC), arzd wa thexi exarnined a? Children' s Hospital, both times describing the abuse by th defendarit. fJF THE EVIDENCE SUFFICIEN' The defen.dant argues hat no rataor a: ur r could hav.° found beyond a reasonable doubt that the St te ro d alfl z,f th2 elements of the crime of aggravated incest. Specifically, the defendant eontends his conviction was based on the uncorroborated word of a child from a troubled household and a troubled extended family, and there was no physical evidence to support the allegations of sexual abuse. The defendant claims that M.G.' s story changed regarding the number of fingers he allegedly used to digitally penetrate her, that M.G. gave varying accounts to her examining doctor, stating that it was anywhere from one to four fingers, and then at trial denied making such a statement. Thus, the defendant argues that M.G.' s statements were inconsistent and that the inconsistency is relevant to M.G.' s credibility. Additionally, he theorizes that M.G. may have been suffering from post-traumatic stress disorder after witnessing her father hold a gun to his head and threaten to kill himsel£ He further argues that he was seventy- six years old when he was accused of the instant offense, he had no prior sex- crime accusations, he had only one prior felony cor_ viction, for burglary, which occurred more than fifty years previous, and that another great- granddaughter who spent more time with him testified that he never did anything inappropriate with her. The defendant also clairns the foll.owing hypotheses of innocence; ( 1) M.G. may have rnade up the sexual abuse allegations as a ploy to keep her parents together, to get attention from her troubled parents, or to offer an explanation for abnormal behaviar that was actually the result Z f her parents' troubled marriage; Initials will be used to ldentify the victim and her immediate famiiy. See La. R.S. 46: 1844(. 3 2) M.G. may have been molested by someone el_ and simply blamed the se defendant; or ( 3j M.G. znay have m mici d anothEr sexua! abuse situa ion in her The defendant argues that he State failed io exclude these reasonable family. hypotheses of innocence nd that no rational juror could have believed that he committed the offense based on the evidencE pr sented. A conviction based on insufficient evidence cannot stand, as it violates Due Process. See U. S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. .Iackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 ( 1979). See La. Code Crim, Pro. art, 821( B); State v. Ov dodi, 06 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La. 1988). The Jackson standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statute 15: 438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 01- 2585 ( La. App. 1 Cir. 6/ 21102), 8B2 So. 2d 141, 144. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant' s own testimony, that hypothesis falls, and tfie defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 48 So. 2d 676, 680 ( La. 1984). A reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally 4 rejected by, the fact finder. See State u. Callaway, 07- 2306 (La. 1/ 21/ 09), 1 So. 3d 417, 418 (per curiam). Aggravated incest is defined In I,quisiana Revised Statute 14: 78. 1, which pertinently provides: A. Aggravated incest zs th e n aging in ny prohpbited act enumerated in Subsec[ iora I with a person whp is under eight en years of a e and vaho is known to the offender to be related to the offetider as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece. B. The following are prohibited acts under this Section: 1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelry to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituring a crime under the laws of this state. 2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both. Thus, to establish the offense of aggravated incest, the State nnust show: ( 1) that the victim was less than eighteen years of age, ( 2) that the offender Irnew that the victim was related to him within tbe specified degrees, and ( 3) that the defendant has engaged in one of the prohibited acts with the victim. State v. Flores, 27, 736 La. App. 2 Cir. 2/ 28/ 96), 66 So. 2d 646, 650. The victim was less than eighteen years of age M.G.' s date of birth is May 2, 1998. Sfie was fourteen years old when she testified at the trial. Her CAC interview took place when she was a ten-year- old third grader. Accarding to the CAC interviaw and M.G.' s trial testimony, the incidents of abuse occurred when she was in the second gade. We find that the State established beyond a reasonable doubt that M.G. was below the age of eighteen at the time the sexual abuse occurred. 5 T e defendant knew that the victim was relr ted tu hem withzn t z specified degrees The defendant r: arri d M.G.' s paterrflal great-ga andmother, W.E., several decades before M, G. grandfather or " was Paw- Paw." Qnn, and M,G. cornmonly referred to him as her In reeallin tihe s etails of M.G.' s dASClosure of abuse by the defendant, M.G.' s mothex, S. G., sai her younger daughter ran in her bedroom and stated that " Pa%paw" was touchin which grandfather was touching her, she said " M.G. Pawpaw When S. G. asked M.G. Roy". We find that the State established beyond a reasonable doubt that the defendant knew that he was the step- great-grandfather of M.G., and, therefare, the requirements of Louisiana Revised Statute 14: 78. 1A were satisfied. The defent ant engaged in prohibited acts with the victim M.G. testified that during ovemight visits, vvhen she was in the second grade, the defendant touched her " private." The defendant touched the inside and outside of her " private" or `bagina," digitally penetrating her during each incident. M.G. testified that it hurt during and after each incident. The incidents occurred in the basement- like area and back bedroom of the defendant' s home. The defendant told M.G. not to tell anyone about the incidents. M.G. finally revealed the abuse after seeing an educational video about inappropriate touching. She disclosed the behavior to her sister, knowing her sister would tell their parents. She said tk ere was no doubt or confusion in her mind as to the incidents of abuse committed by the defendant. Describing the abuse in her CAC interview, M.G. stated thaY the defendant used one finger, sometimes two fingers, and used his whole hand in a wiping motion. At trial she testified that she told the police that the defendant put the tip of h.is finger in her vagina, and that she told the CAC interviewer that the defendant inserted one or two fingers into her 6 vagina. She denied telling Dr. Yamika Head, who examined h r t ; hzl.dren' s F aspital, it could have been one, two, three or four fingers that the defendarqt put in l er vagina. M.G. was also questioned about her father' s mistr ss nd confirmed ttzat she was initially upset about that relation. ip. M.U. c n rmer that sk e reported suicidal thoughts based on all tre thin s sh;. had been thrQU a. S. Cz. ( M.G.' other) t ti ied t iat b foi I I.. discZoseci t sexual abuse, M.G. occasionally spent nights with her great-grandparents without her parents being present. S. G. never wimessed ar.y inappropriate behavior by the defendant, but the defendant used to put money in S. G,' s back pocket and bra which made her feel She believed her daughter' s allegations against the defendant, ashamed. which never' wavered. M.G.' s behavior changed after the disclosure in that she seemed to have relief or acted as if she had unburdened herself. S. G. testified that she and M.G.' s father were separated for a period of time but that their e marriage had been solid since around 2006. She said any issues ibited by M.G, based on the marital issues improved with the strengthening of the marriage. M.G. began to e prior to the attempted disclosure), ibit new behavioral issues around 2008 ( the year becoming withdrawn and wetting the bed, azid she self strangulation by squeezing her neck with her hands. S. G. also acknowledged that M.G. was noticeably or overly sea uaL Dr. Scott Benton testi ied as an expert ir the field of pediatric forensic medicine. . r: Benton explained that he trained Dr. Head and described Dr. Head' s D interview as consistent with his own procedure and methods. Based on his review of Dr. Head' s report, Dr, Benton testified that M.G. never wavered in her identification of the defendant as her sexual abuser. He described the factors that generally contribute to a child delaying disclosure of abuse such as naivety, psychological issues, external factors such as tfireazs or bribery of the child or people around the ehild, or the chzld' s confusion as to her role or fault. Delayed 7 disclosure is further more explained when the p rpet commoxi conc.? Accommodation Syndrom iike ts r i: ? Uhich agcr rning is related and to the Child ehildren ii the pro,;es victim. Sexual He Abuse s f being seduced acquiesce in order to avoid ge ng anyone in trouble and to avoid further tcrb exgsl ined uvhy c iidren go back to the abusers disruption ir their lives. Dr. $ during the proces of seduction, . ncluding misc. race tions that the abuse will cease, or benefits that the chiid receives from other aspects of the relationship separate from the abhorrent ar immaral aspect. He explained that there is a temporal association between displays of relief subsequent to disclosure, noting that the elimination of contact with the alleged abuser would be significant. Dr. Benton testified that in the vast majority of cases involving claims of digital fondling, there is no evidence of trauma, particularly if the timing of the examination is distant from the e He testifiad that most girls e ent. erience puberty at age eight or nine, which,results in a decreasa in the likelihood of injury and increase zn the likelihood of healing from any injury Chat did occur, and that M.G. had gone thraugh puberty by the time of her examination. Dr. Benton testified that the history given in M.G.' s medical records did not conflict with the accusations of abuse. He acknowledged that he did not personally examine or speak to M.G., and his knowledge as to her feelin s was solely based on her communication with Dr. Head. N.E., the defendant' s biological great- granddaughter, also testified. She was eleven years old at the time af the trial. She s+ ent a lot of time with the defendant and was often present when M.G. was xhere. Slae and the defendant wrestled a lot but he never touched the privatz area of her body. M,G, and her sister; V.G., did not want to wrestle with the defendant, but N.E. did not know why. N.E, testified that the defendant' s bedroom door was always kept open. The children would spend tinne in the basement- like area, but she denied that the defendant would 8 remain there informed alo wit e I'. E. conx, raed that 5he and ] 1. G. had been i M.U: x offenders and about s ere zr sUructed to report inci lents of improper touching. The defendant police. maint He alsp testif ed at ined his ina ce. ce hen he was interviewed by the at 1VI, U. and b.er sister only spent tl e night at his triaY home a couple of tirnes and ihey- onlv wante to ; ome ivl-en 1V'. E. was there so they could play with her. N.E. v as the only one f th three children with whom he had much interaction. He testified that he was never alone with M.G. and never molested her. He said he never took M.G.. to the back bedroom, but said he watched hunting shows in the back bedroom and that M.G. would sometimes come into the bedroom. When asked if he ever wrestled with the girls where one girl would be on the bottom, the defendant on top, and another child on his back, he said he did so only once and the girls wanted to engage in the act and called it making a " pancake." The testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introdace medical, scientific, or physical evidence 2079 ( La. to prove the commission of 1 Cir. 5/ 9/ 03), App. the offense. State v. . Iames, 02 849 So. 2d 574, 581. In this case, the jury apparentl- fr und M.G. to be more credible than the defendanY. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness, and where there is conflicting testimoriy about factual rnatters, the resolution of which depends upon a determination of the credibilit of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So. 2d 31, 38 ( La. App. given evidence 1 Cir. 1984), is not The trier of fact' s determination of the weight to be subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder' s detezmination of guilt. State v. Taylor, 97- 2261 ( La. App. 1 Cir, 9!25/ 98), 721 So, 2d 929, 932. 9 The defendant asserts tkat 1VI U,' s accaunt of sexual abuse was inconsistent Witr. reat detaifl : I.Ci. described sexual acts by the and, therefore, r et credihl. defendant on several occasions that ir luded digital pe etration and fondling. In reviewing the evidence, we canr ot say that th; ury' s dete:mination under the facts and as irrational ir u istanc s presented tca them. See C3rdoc ie, 946 So. 2d at 662. The evidence, in uding the CA.0 inter% iev and M.G.' s irial testimony, was sufficien? to support the verdict of guilty of aggra ated incest. Considering the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of aggravated incest proven beyond a reasonable doubt, and to the exclusion of the hypotheses of innocence suggested by the defense. The defendant' s fourth assignment of error is without merit. DENIAL OF MOTION TO CONTINUE - HEARSAY In assignment of error number two, the defendant contends that the trial court erred in denying his motion to continue the trial. In his motion, the defendant asserted that the State intended to present evidence of the post-offense physical examination of the victim, including dialogue between the victim and Dr. Head that was testimonial in nature. He further asserted that the State would be unable to produce the testimony of Dr. Head, and instead planned to produce the testimony of another physician, Dr. Benton, who would testify from Dr. Head' s 3 report. The defendant argued that a continuance was necessary because proceeding to trial would inevitably violate his constitutional right to confront his accusers. The trial court has great discreti n in decidirig whether to grant a continuance, and its ruling wilI not be overturned absent an abuse of discretion. See La. Code Crim. Pro. art. 712; State v. SPrickland, 94- 0025 ( La. 11/ 1/ 96), 683 3 We note that durin g closin g ar gumenYs, he S±ate indicated that Dr. Head was unavailable because of a conflicting trial setting. 10 So. 2d 218, 229. motion to conti We find a L us of he rxia c urt' s discretion in denying the Dr. TH[ ead ue. u: s nut ubpoen,aed r the tz al by the defense. ? Rather, the d feradant sought a cc ntini a:-ie ar aing that Dr. Head would not be present to testify on behulf of the State. He did not, and does not no, suggest that the continua ic was necessary so tk at Dr. Head c: uld 1 e called to testify on behalf of the defense. The State had the burden at trial of proving the defendant' s guilt beyond a reasonable doubt. The decisions the State made relative to who would be called to testify in support of the prosecution involved stirategies that were properly left to the State' s discretion. If, at trial, those d cicions proved to be legally deficient, then the prosecution risked failing. Nevertheless, the defendant has cited no legal authority for granting the defendant a trial continuance so that the State could be compelled to present State witnesses that the defendant deemed necessary. Furthermore, a conviction generally will not be reversed due to an improper ruling on a motion to continue unless there is a showing of specific prejudice to the defendant as a result of the denial of the continuance. Strickland, 683 So. 2d at 229. The defendant has not shown specific rejudice. He argues that by denying the continuance, the trial court failed tio protect his constitutional right to confront his accuser. However, the argament is misguided gn its focus. Through its ruling on the requested continuance, the trial eourt conecfly focused on protecting the defendant' s confrontation rights in the ever g that the expert witness, Dr. Benton, was actually called by the State Lo testify, not on vhether the defendant could compel the State to call Dr. Head. In anticipation of the State calling the expert witness, the trial court used available procedures to safeguard defendant' the s confrontation rights. For example, the defendant made an oral motion in limine to exclude Dr. Head' s report, That report included a transcript creat;,d at the time of M.G,' s physical 11 examination, which was described as a verbatim transcription of questions by Dr. Head as well as M:G.' The s answers. m tior s granted and Dr. Head' s report was not received as evidence. The trial court explaine ttaat uuring Dr. Benton' s expert testimony, the State ivo ald he allowed o question I r. Benton regarding certain informati n in the transcrig, u ith he defendant having the rightto object as the testimonv During roceed d. Th defendamt d',d not c? bject to this procedure. the trial, the State Dr. $ enton as an expert and the defendant called objected to portions of his testimony. When the State asked Dr. Benton if M.G. confirmed that the abuse began when she was nine, and ended when she was ten, the defendant objected, claiming the State' s attorney was reading from the transcript. The trial court overruled the objection; however, after that ruling, Dr. Benton was asked a different question and never answered the objected to question. The defendant also objected to Dr. Benton " rambling on about theories." The trial court ruled that as an expert Dr. Benton could testify about " concepts and things like that." But, the objection was partially sustained because Dr. Benton had not been asked nonresponsive asked and about to the the State' answered eoncept s question. without being explained, so his answer was The question was rephrased, and then was abjection. The trial courY also overruled the defendant' s objection to the State asking Ieading questions to Dr. Benton, a qualified expert. Based upon our review of the record, the trial court' s denial of the motion to continue did not prejudice the defendant. The defendant also contends that information contained in Dr. Head' s report should have been excluded at ±rial because it did not fall within a hearsay exception or violated his right to confront his accuser. Specifically, the objectionable information was described Yn the following argument presented on appeaL ¢ 12 Dr. Benton was alYo Fed t testif as to certain portions of a transcribed stat ment, aarls of Dr. Head' s nter ie v with M.G. where M.G, answered que tians r garding che irAcidents. This is where the proble:n witl: admitting statem nts comes in. the ! ears} Dr Head took statements froria 1 ¢ 1. G. ti h re M.G. claimed that the appeliant inserted antiti h r vagina. frorra one to Four fingers into her While M.G. was subject tca cross examination herself as to ing it. Dr. Head, who took the statement, could not be q estion d as tc this sYater ent, nor any other this statement, she denied ever sa; statem.ents made bv M.G. Dr. Benton was not able to testify as to M.G.' s demeanor ar credibility when she mad:: the statements because he was not the one who took the This is not a case where the statement statements. provided was cumulative of other statements, but was a statement the victim denied ever making. A contemporaneous objection is required to preserve an errar for appellate review. La. Code Evid. art. 103A( 1); La. Code Crim. Pro. art. 841A. An obJection to the information described in the above argument was not raised at trial. In fact, the detailed information about which the defendant complains was introduced at the trial by the defense. Moreover, the Confrontation Clause of the Sixth Amendment to the United States Constitution enjoy the provides right . . . to be that "[ i] n all eriminal prosecutions, th confronted with the witnesses against accused shall him." This provides a criminal defer.dant with the right to physically faee those who testify against him, t anc' the right to conduct cross- xamin tic n. eoy v. Iowa, 4$% U.S. 1012, 1017, 108 S. Ct. 2798, 2801, 101 L.Ed.2d 57 ( 198 8); State v. Welch, 99- 1283 ( I,a. 4/ 11/ 00), 760 So. 2d 317; 320. The basic objectiive ot the Confrontation Clause " is to prevent the accused frorri being deprived of Yhe opportunity to cross- ex nine the declarant about statements taken far use at 131 S. Ct. 1143, 1155, 179 L.Ed.2d 93. trial." Michigan v. Bryant, _ U.S. ._, Simpiy stated, the Confrontation Clause requires the State to present its witnesses, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S. Ct. 2527, 2540, 174 L.Ed.2d 314 ( 2009). t3 M.G. testified at trial and w s, subject to crass- examination. During crossexamination, defense counsel asked he* if she rr ade a specific statement to Dr. Head about the number ot fngers t e defendanY used to digitally penetrate her. The purpose of the question tuas tc revzal trial testimo ni and what che told Dr. H tesumabl; a confli t b tween M.G.' s ade g-iou ¢ ea r, this specific line of questioning was not presented in the S?ate' s a reet zxamina ior of M.G., and was raised for the first time by the defense on cross- examination. M.G. denied making that statement. Dr. Benton then testif ed. Again, on cross- examination the defense elicited further testimony regarding M.G.' s alleged statement to Dr. Head regarding the number of fingers the defendant used to digitally penetrate her. Having elicited this testimony from both the victim and Dr. Benton, the defendant now argues that he was prejudiced in his inability to challenge M.G.' s veracity by cross- examining Dr. Head at trial. He does not argue that the State failed to present Dr. Head as a witness against him. Kather, the defendant argues that the State failed to produce Dr. Head so that the defense could cross- examine him for the purpose of attacking the credibility of M.G. We find that this does not raise an issue under the Confrontation Clause. The defendant' s confrontation rights were not violated. This assignment of error is without merit. OTHER CRIMES EVIDENCE In assignment of error number one, the defendant contends that evidence of a previous inciderit where the defendant allegedly molested M.G. during a family vacation in Gatlinburg Tennessee should not have been presented to the iury. The defendant argues` that this evidence was inadmissible because it involved an alleged crime that oceurred in another jurisdiction, the State did not designate an applicable provision of Louisiana Code of Evidence article 404, and there was no hearing on th.e issue. The defendant contends that the admission of the Tennessee 14 allegation confused the jury na tYsat the guzl v ve ict tiva pQSaibly based solely on the Tennesse afllegatior. This issue was raised ior he zirst time in defendan' s tnoiion fox new trial. The eviden t given a the e j ry s nc t ob ecYe; relative t o e tc> th_ asin t i tria: an 7t a r cr: ae: : ny linli± in; in truction was v:dence. I wev r. th. deiFendant argues that an preelusion of re iew c n ap e l sh uld result in on.sideration of the issue as an ineffective assistance of counsel cl aim. He contends that had either the other crimes evidence been excluded or a lirzaiting instruction been given, there is a likelihood that the jury would have returned a not guilty verdict. The defendant concludes that his conviction was likely due to his attorney' s non- strategic failare to request a hearing and lim;ting jury instruction relative to the other crimes evidence. We reiterate that a eontemporaneous objection is required to preserve a, error for 841A. appellate review. La. Code Evid. art, 103A( 1); La, Code Crim. Pro. art. However, while a claim of ineffectiveness is generally relegated to postconviction proceedings, it can be considered o a appeal when the record permits a detinitive resolution of t1Ye issue. St t x Miller, 99- OI92 ( La. 9/ 6/ 00), 776 So. 2d 396, 411, ce- t. denied, 531 U.S. 1194, 121 S. Ct. 1196, 149 L.Ed.2d 111 2001). We find that the record antains the evid nce necessary to definitively resolve the ineffective assistance of counseI issue on appeal. A defendarrt is entitled to effective assistar ce of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana C nstitution. In assessing a cl im of' ineffectiveness, a turo- pronged test is employed. The defend r t must show that ( 1) his ttorneyys erformance was deficienf, and ( 2) the defici ncy pre udiced him. Strickland v. Washington, 466 U. S. 668; 687, 104 S. Gt. 2052, 2064, 80 L. Ed.?d 674 ( 1984). The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or " a trial IS whose result is reliable." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In order to show prejudice, the defendant must demonstrate that there is a reasonable probability that, but for counsePs unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; State v. Thomas, 12- 1410 ( La. 9/ 4/ 13), 124 So. 3d 1049, 1053. When asked by the State whether the type of incidents that she described had ever occurred any place other than in the basement- like area and the back bedroom of the Estep home, M.G. said it also occurred during a family vacation in Tennessee. We find that, under the circumstances of this case, that answer constitutes evidence of other se ally assaultive behavior that was elicited by the State. Louisiana Code of Evidence article 412. 2 provides: 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' s commission of another crime, 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 purposes. C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule. The evidence of sexually assaultive behavior committed by the defendant in Tennessee was admissible under Article 412. 2 to show the defendant' s lustful disposition toward young children. See State v. Buckenberger, 07- 1422 ( La. App. 1 Cir. 2/ 8/ 08), 984 So. 2d 751, 757, writ denied, 08- 0877 ( La. 11/ 21/ 08), 996 So. 2d 1104. Where the complained of evidence is in fact admissible, there is no deficiency in the performance of defense counsel in not objecting to the admission 16 of the evidence. See State v. Williams, 632 Sa 2d 351, 362 ( I,a. App. 1 Cir. 1993), writ denied, 643 So. 2d 139 ( La. 1994). Accordingly, the defendant was not prejudiced by his attorney' s failure to request a limiting instruction and the trial court' s failure to hold a hearing. See La. Code Evid. art. 412. 2; State v. Williams, 02- 1030 ( La. 10/ 15/ 02), 830 So. 2d 984, 987. Assignment of error number one lacks merit. EXCLUSION OF EVIDENCE In assignment of error number tl ree, the defendant contends that t1 e trial court erred in excluding evidence that M.G.' s grandmother, D.G., had a history of making false accusations and causing others to make false accusations of sexual abuse. He argues that D.G. accused her first husband of child molestation, accused her mother, W.E., of masturbating in front of children, accused her daughter' s boyfriend of raping her daughter, and accused her son of molesting his daughter. The defendant further argues that D.G. has been hospitalized at least three times for mental illness and a suicide attempt and that the Office of Child Services placed two of D.G.' s children in the defendant' s custody because D.G.' s daughter was molested by D.G.' s second husband. The defendant theorizes that D.G. made up allegations of sexual abuse whenever things did not go her way or in order to seek revenge, and that the instant allegations stemmed from the announcement that W.E. was cutting D. G. out of her will. The defendant argues that the family history or pattern of filing false sexual abuse charges is relevant to show that M.G. learned this behavior. A criminal defendant' s right to present a defense is guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution. However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So. 2d 443, 17 449 ( La. 1976). " Relevant evidence" is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. La. Code Evid. art. 401. The trial judge, in deciding the issue of relevancy, must determine whether the evidence bears rational connection to ! the fact in issue in the case. State v. Williams, 341 So. 2d 3Z0, 374 ( La. 197f); State v. Harris, 11- 0779 ( La. App. 1 Cir. 11/ 9/ 11), 79 So. 3d 1037, 1046. Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. La. Code Evid. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, risk of misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403. Ultimately, questions of relevancy and admissibility are within the discretion of the trial court, and its determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of that discretion. State v. Duncan, 98- 1730 ( La. App. 1 Cir. 6/ 25/ 99), 738 So. 2d 706, 712- 713. The defendant filed a pre- trial notice of his intent to introduce the sexual abuse accusation evidence and a hearing was held to determine its admissibiliry. At the hearing, D.G. testified that she accused her first husband of abusing her children and that the charges against him " expired." She further confirmed that her other husband was charged with the molestation of her daughter and pled guilty. She denied being involved in other sexual abuse allegations raised within her family. The trial court ruled the evidence was not relevant and was therefare inadmissible. We find the trial court did not abuse its discretion in excluding this evidence. Assignment of error number three lacks merit. CONVICTION AND SENTENCE AFFIRMED. 18
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