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State v. Luckey

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

STATE OF LOUISIANA
v.
JOSHUA LUCKEY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-751, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Shannon K. Swaim, Sloan Abernathy

          COUNSEL FOR DEFENDANT/APPELLANT, JOSHUA LUCKEY Bruce G. Whittaker

          DEFENDANT/APPELLANT, JOSHUA LUCKEY In Proper Person

          Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

         AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

         FHW

         JGG

         HJL

          FREDERICKA HOMBERG WICKER JUDGE

         Defendant, Joshua Luckey, appeals his convictions and sentences for two counts of sexual battery upon a known juvenile under the age of thirteen, in violation of La. R.S. 14:43.1. The district court granted defendant's motion for appeal, and defendant's appeal followed. Defendant has also filed a pro se supplemental brief. For the following reasons, we affirm defendant's convictions and his sentences. Finding two errors patent reflected in defendant's commitment order, we remand for correction of the commitment.

         STATEMENT OF THE CASE

         On April 3, 2013, the State charged defendant by bill of information with the sexual battery of a known juvenile, E.D. (D.O.B. 9/22/2005), in violation of La. R.S.14:43.1 (count 1) and with the sexual battery of a known juvenile, A.B. (D.O.B. 7/18/2008), in violation of La. R.S. 14:43.1 (count 2). The bill of information alleged that defendant committed both offenses on or between November 1, 2011 and February 3, 2013, when the juveniles were, at most, seven years old and four years old, respectively. Defendant was arraigned on these charges and entered a single plea of not guilty. Following a jury trial, the jury rendered a verdict of guilty on both counts on November 14, 2014. On February 9, 2015, the district court sentenced defendant to "[twenty-five] years on each count, those sentences to run consecutive to each other."

         On March 6, 2015, defendant filed a "notice of appeal" "from the final judgment entered by this Court on February 9th, 2015 [sic], " the date of defendant's sentencing. Defendant did not indicate that he sought to appeal his conviction, which occurred on November 14, 2014. Several months later, defendant filed a pro se writ of mandamus with this Court because the district court had not yet granted him an appeal. This Court granted defendant's writ of mandamus and instructed the district court to enter an order granting defendant an appeal. The district court's subsequent order reflects that defendant "sought to appeal his convictions and sentences, imposed February 9, 2015." Although defendant did not explicitly seek review of his convictions in his March 6, 2015 notice of appeal, defendant's sole counseled assignments of error and his three pro se assignments of error pertain only to his convictions, not to his sentences. Nevertheless, the Louisiana Supreme Court has recognized that appeals are favored in the law and has disapproved of the dismissal of appeals on "hypertechnical" grounds. State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271, 274 (citing State v. Bunnell, 508 So.2d 55 (La. 1987)). Accordingly, we will address defendant's assignments of error concerning his conviction and will conduct a full errors patent review.

         FACTS

         After meeting on a dating website, the victims' mother, B.B., and defendant became romantically involved in November 2011. According to B.B., who identified defendant in open court, the couple had plans to marry. In December 2011, defendant moved into B.B.'s aunt's house in Marrero with B.B. and her children, L.D., E.D., A.B., and A.W. They then moved to another home in Marrero where they lived for approximately six months. Thereafter, defendant, B.B, and the children moved into a two-bedroom apartment on Barataria Boulevard. In this apartment, all of the children slept in one room on the opposite side of the apartment from the bedroom in which B.B. and defendant slept. The kitchen and the bathroom separated the two bedrooms.

         Although B.B. acknowledged that defendant could be harsh with the children in terms of discipline, B.B. testified that the children loved him and that he would babysit them when she had something to do. She denied ever seeing defendant abuse the children, and she never observed any strange behavior that might suggest any issues with defendant and her children. B.B. testified that, in the weeks leading up to the day when the allegations came to light, she felt like defendant was hiding something from her and maybe was cheating on her.

         According to B.B., on February 3, 2013, at about 7:30 a.m., she woke up, went into the kitchen of the Barataria Boulevard apartment, and saw defendant putting frozen fruit in a cup for her oldest daughter, E.D., who was seven years old at the time. When B.B. asked defendant "what was [E.D.] getting that for, " defendant responded that E.D. "had cleaned up the dog's mess on the floor." B.B. testified that, at the time, she thought nothing of it. Later that morning, as she cooked breakfast, her oldest son, L.D., helped her with the dishes. According to B.B., L.D. commented to her that "[E.D.] was a lucky bird because she always got all the hugs and kisses." B.B. testified, "[T]hat set an alarm off in my head." B.B. then approached E.D. to ask her if anything was wrong: "[S]he told me that Josh had been coming in her room at night and that she wasn't getting any sleep and that he had been touching her. So I grabbed her by the arm, and I went into the room. And I grabbed my cell phone, and I dialed 911."

         Among the police officers who responded to B.B.'s call was Deputy Thelma Hill. Deputy Hill testified that, after speaking with B.B. who reported that E.D. told her "that Josh comes into their room at night and talks and feels on her, " she spoke with E.D., who explained to her that "Josh comes in her room at night when she's asleep and touches her on her vagina and sometimes places his finger in there." E.D. told Deputy Hill that the last time defendant came into her room was the previous night and that defendant agreed to give her a frozen treat if she agreed to hug him. E.D. explained to Deputy Hill that she complied but that defendant did not want to let her go when she wanted to leave. Deputy Hill testified that she also spoke with B.B.'s son, L.D., who told her that defendant comes into the children's bedroom at night "all the time" and talks "very low" to E.D. When Deputy Hill asked E.D. whether she had ever seen defendant's private area, E.D. responded affirmatively, adding that "he shows it to her all the time." E.D. reported to Deputy Hill that defendant has "some types of scars or designs on [his penis]." Thereafter, Deputy Hill confirmed with B.B. that defendant has "some type of implants or something on his penis."

         Detective Ronald David Ray, Jr., the lead investigator in this matter, also testified that E.D. reported to him at the scene that "Joshie had been touching her in what she termed her tu-tu." When Detective Ray asked E.D. to explain "tu-tu, " E.D. pointed to her vaginal area. Detective Ray testified that E.D. also confirmed her statement about "the bumps" on defendant's genitalia. Based on E.D.'s statement concerning unusual bumps or scarring on defendant's penis, Detective Ray obtained a search warrant to take photographs of defendant's person. Detective Ray testified that the photographs-which were admitted into evidence and published to the jury-reveal bumps on defendant's penis in the shapes of a heart and a diamond.

         At the scene, Detective Ray also interviewed E.D.'s older brother, L.D., who likewise confirmed that he would see defendant come into the children's room at night and give E.D. lots of hugs. At the Detective Bureau, Detective Ray also spoke with defendant who denied any inappropriate touching but "did say that there may have been some inadvertent contact during playtime." Although defendant maintained to Detective Ray that he gave E.D. the treat "because she had cleaned up some dog feces, " defendant also made the statement that he told B.B, "[B]elieve your daughter." In her testimony, B.B. confirmed that defendant made this statement to her: "I don't understand why he told me believe my daughter, but he did tell me believe my daughter."

          The day after B.B. learned of E.D.'s allegations she felt compelled to ask her younger daughter, A.B., who was four years old at the time, whether "anything bad had ever happened to her, if anybody had touched her anywhere they wasn't [sic] supposed to." According to B.B., A.B. "kind of like put her head down and told [B.B.] that Joshie did - Joshua, they called him Joshie at the time - that he did when [B.B.] was in the shower."

         Approximately two weeks later, on February 18, 2013, Dr. Jamie Jackson, a pediatrician with the Audrey Hepburn Care Center at Children's Hospital, performed a sexual assault examination of E.D., which included an incident history. During this examination, E.D. explained, "He gave me ...


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