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AFROM THE APPEAL TWENTY- SECOND JUD* DISTRICT COURT,§DIVISIONE 2: AND FOR THE PARISH e2 2? ? « © f»< T A: STATE O, LOUISIANA DOCKET NUMBER 3182- F- 2019 f 2 yw: 2 ;. 1- » 2. 2. - \$ »\

Gwendolyn K. Brown Attorneys for D ,,,- 4

Louisiana f k- Project Charles 2 ,- a J. II Baton Rouge, .,\?.°+

1,larren L. Montgomery t20» f:< 6 *,- -

District Attorney zz o . 0.

Matthew Caplan

Covington, Louisiana RiaggUM row

with three counts of aggravated/ first degree rape of a victim under the age of thirteEl years ( counts one, three, and five), violations of L. R. S. 14: 42( A)( 4); five counts of

molestation of a juvenile under the age of thirteen years when the incidents of

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I Regarding counts one, three, and five, the Louisiana Legislature renamed the offense of aggravated rape to "first degree rape" without any material alteration of the substance of the crime. See La. R. S. 14: 42( E); 2015 La. Acts Nos. 184, § 1& 256, § 1. As the offenses herein occurred both before and after the amendment, we shall reference those offenses as aggravated/ first degree rape.

2 As to count ten, we note the minutes incorrectly state the charge to which the defendant pled not guilty and with which he was convicted. However, the transcript reflects the correct charge. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). This issue will be discussed below in the patent error section.

K a period of more than one year), to forty years imprisonment without benefit of parol(I probation, or suspension of sentence, with each sentence to be served consecutively.

defendant's convictions. We affirm the sentences on counts one, two, three, four, and five. We affirm the sentence on count ten and remand with instructions for correction of

minutes. We amend the sentences on counts six, seven, eight, and nine, and affirm as

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by the defendant since she was seven years old. M. F., S. I., and L. W. ( M. I. and 1liffiRliffillifflil!

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Following the girls' interviews at the Children' s Advocacy Center ( CAC}, officers learned sex toys were used on the children. While executing a search warrant at tj defendant's residence, officers confiscated several items matching the girls' descriptions.

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ultimately charged with the instant offenses.

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overruled his objections during the States closing argument, which he contencE

I Although the minutes indicate the sentences on counts six, seven, eight, and nine were imposed at hard labor, the sentencing transcript reveals the trial court did not order, as statutorily required, those sentences to be served at hard labor. When there is a discrepancy between the minutes and the transcript, the transcript prevails. Lynch, 441 So. 2d at 734. This issue will be discussed below in the patent error section.

4 Because these charges involve sex offenses, we reference the victims and their immediate family members by their initials. See La. R. S. 46: 1844( W) improperly vouched for the victims' credibility. In his second assignment of error, he contends the trial court erroneously denied his motion for mistrial after the State improperly referenced the defendant"s failure to testify in its closing argument.

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377 ( 2007). The trial judge has broad discretion in controlling the scope of closing IM M

argument unless thoroughly convinced the remarks influenced the jury and contributed I ' IIIIIIIIIIIII I 1Z I I E11111111 i Ii , Ii I 11111111111222MI Wof MIIM'

During its closing remarks, the State discussed the evidence presented at trial; namely, the victims' testimony and CAC interviews. The State recounted a statement in both M. F.' s and M. J.' s interviews, in which they each stated the defendant told them they Pllliii liiliil;% I gilp

following comments: Are they to be believed? Are they credible? Are they consistent? [ M. F.], M. 3.], [ 3. 3.], [ S. 3.], [ L. W.], y'all are believed.

times it was their duty to assess the credibility of the witnesses. The trial court overruled

M specified that closing statements are argument by counsel, not evidence. The court

It is reversible error for the State to express its belief in the guilt of the accused,

i 01R I M I TO I! I FIVE 2= appear in the record. State v. Sayles, 395 So. 2d 695, 697 ( La. 1981); State v.

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prejudice or otherwise improper. See Deckellman, 2011 WL 4436529 at * 10.

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failure to testify within the hearing of the jury, during trial or in argument. Where the

reference is indirect, the reviewing court must inquire into the remark's intended effect

A Herein, defense counsel' s closing argument focused on the inconsistencies in the I III 1 • 111 MMIlli Iiiii Ili INS! MORRIS li III j I:' Jil

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Defense counsel] is right. The expert can't tell you where that DNA is coming from. How it got on [ the objects]. They can tell you who it belongs to. They can' t tell you how it got on

Who told you where that DNA came from? [ M. F.] She took the stand.

Who told, who took this stand? Who sal; She was in those [ CAC] videos. in the chair, looked you dead in the eye, and said that DNA came from any other place, under any other circumstance, other than the defendant taking those [ objects] and sticking them in his . . . daughter's vagina and anus?

Nobody. There's nothing to refute what [ M. F.] told you.

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focuses the jury's attention on the defendant' s failure to testify and mandates a mistrial. imp

M In Johnson, three State witnesses testified the defendant confessed to them. Id.

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constituted an indirect reference to the defendant's failure to testify at trial. See State

lit' lliF On" La. 1992). Therein, the victim testified the defendants raped her with their penises;

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were an indirect reference to the defendant's failure to testify. See State v. Larnark,

La ark, the victim testified she was raped by the defendant, and they were the only I I or: K I 1 1 Ii 1 i MOWS 4= 1

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are similar to those at issue in Johnson, Moser, and Lamark. In the instant case, the 1I I Iiiiiiiii1illilli PRIEM! 1 on the sex toys. M. F. testified at trial and in her CAC statement that she and the 11111111 ; Ili I I 1 11111 11 111 Hill I

this defense.

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defendant's biological paternal lineage was present, and the defendant could not I excluded from that group. However, she could not affirmatively include or exclude the

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5 While both L.W. and M. F. testified they were abused together while in the same room, neither of them testified such incidents included the use of sex toys. l I 1 Ill

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Although Article 770 is couched in mandatory terms, it is a rule for trial 111! 9 1 1 1 1 1 1 1 1 1 1 1 1; 1 1 1 1 11111il

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in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U. S. 275, 1111 0 00

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133.

Herein, we find the trial court's error in denying the motion for mistrial was I I IlIql1lip

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defendant' s guilt at trial. Considering the victims' testimony and CAC interviews, which detailed the chronic sexual abuse the victims endured, we conclude the jury's verdicts

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After a careful review of the record, we have found three patent errors.

was subject to imprisonment at hard labor only. 5ge La. R. S. 14: 42( D)( 1) ari 14: 43. 1( 0)( 2). Thus, the sentences imposed on these counts are illegally lenient. An I' l ISM R I ICII MI 11 1111

1174. Accordingly, we correct the sentences on counts six, seven, eight, and nine by

sentencing minutes reflect this incorrect offense. However, the sentencing transcript reflects the correct offense of molestation of a juvenile when the incidents of molestation liillllq 111111 I 111, 1111i ; 1111111l ; Illl! ! Ill HE=

6 We note the minute entry detailing the jury's verdicts lists the correct offense.

W11 minute entry and the transcript, the transcript prevails, Lynch, 441 So. 2d at 734.

instruct the trial court to amend the minute entries to accurately reflect the defendant's ; 111 IIIIIIII; Ijjjj I A

Finally, after the trial court imposed the sentences herein, it failed to advise the

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and is not grounds to reverse the sentence or remand for resentencing. Further, thM I 111 1111111111 ; I 11111 I I II1p; I I A RIPIR R. I!

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with instructions to amend the minute entries. We amend the sentences on counts six,

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