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
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.
DEFENDANT/APPELLANT, JOSHUA LUCKEY In Proper Person
composed of Fredericka Homberg Wicker, Jude G. Gravois, and
Hans J. Liljeberg
REMANDED FOR CORRECTION OF COMMITMENT
FREDERICKA HOMBERG WICKER JUDGE
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
OF THE CASE
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
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.
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.
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.
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
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."
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.
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."
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."
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