Appeal from the Twenty-First Judicial District Court In and
for the Parish of Tangipahoa State of Louisiana No. 1203324
Honorable James E. "Jimmy" Gaidry, Ad Hoc
Landry Attorney General Sonceree Smith Clark Assistant
Attorney General Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana
Michael Thiel Hammond, Louisiana Counsel for Defendant/
Appellant Ronald Gross
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
defendant, Ronald Gross, was charged by bill of information
with molestation of a juvenile (thirteen years or older but
not yet seventeen), a violation of LSA-R.S. 14:81.2. The
defendant pled not guilty and waived his right to a jury
trial. The trial court adjudged the defendant guilty as
charged. The defendant was sentenced to one year of
imprisonment at hard labor. The defendant now appeals,
designating four assignments of error. For the following
reasons, we affirm the conviction, but we vacate the one-year
sentence and remand this matter to the trial court for
had just recently learned that the defendant was her
biological father and had started staying at the
defendant's house in Tickfaw on summer weekends. On June
3, 2012, A.D., who was sixteen years old at the time, and her
friend, A.H. (a seventeen-year-old female), slept over at the
defendant's house. A.D.'s half-sister, A.G. (around
nine years old at the time), was also at the house that
night. At about 8:00 p.m., all three of the girls
were in the defendant's bedroom, with the defendant,
watching television. The defendant and A.D. were lying on the
bed. A.D. was wearing pajama shorts and a sports bra. At some
point, A.H. got a call on her cell phone and left the room.
Shortly thereafter, A.G. also left the bedroom.
to the testimony of the victim, the defendant then began
rubbing A.D.'s back. The defendant moved his hand inside
of A.D.'s shorts and began rubbing and grabbing her
buttocks. The defendant pulled out his penis, pulled down
A.D.'s shorts, and pulled A.D. close to him so that his
penis was on her stomach. A.G. came back into the bedroom to
get the defendant's cell phone. When A.G. left the
bedroom, A.D. got off the bed and also left the bedroom. A.D.
went to a back room, looking for her friend and little
sister. Realizing no one was in that room, A.D. headed for
the kitchen, which required her to pass by the
defendant's bedroom. As A.D. passed his room, the
defendant grabbed her and tried to take her into the
"bible study" room, but A.D. resisted. The
defendant then pulled A.D. back into his bedroom, bent her
over his bed, and started kissing her and licking her neck.
A.G. again walked into the bedroom and handed the defendant
his cell phone due to his receiving a call.
left the bedroom and found A.H. in the kitchen. A.D. took
A.H. outside and told her what had just happened. A.D. called
her mother, and A.H. called the police, who arrived shortly
thereafter. The defendant testified at trial and denied the
allegations and any wrongdoing.
OF ERROR NO. 1
first assignment of error, the defendant argues the trial
court erred in denying his motion for a mistrial.
Specifically, the defendant contends he was entitled to a
mistrial because of the prosecutor's reference to acts of
molestation, other than the acts that occurred initially, in
her opening statement.
defendant had been a bailiff for the 21st Judicial District
Court. Accordingly, the Tangipahoa District Attorney's
Office recused itself from this matter. The Attorney
General's Office took over and prosecuted the case. In
part of her opening statement, the prosecutor described the
few moments when the defendant allegedly molested his
daughter A.D. In particular, the prosecutor stated:
He touched her in her vaginal area. He removed his penis and
displayed that to [A.D.] and he tried to engage her in sexual
intercourse. When she got up and walked away, he pursued her
and tried to engage her in inappropriate lewd and lascivious
acts a couple of more times while they were in the house. She
was able to divert him. She was able to get away from him.
conclusion of the prosecutor's opening statement, defense
counsel objected to the prosecutor's alleged references
to other crimes evidence for which defense counsel had been
provided no notice. According to defense counsel, in addition
to the defendant's touching A.D. in the vaginal area and
exposing his penis -the alleged facts that defense counsel
knew about - the prosecutor "referenced a couple of
other situations that apparently happened either outside of
that location and somewhere else in the house or are
supplemental and additional acts of alleged criminal
allegation, the prosecutor responded:
Your Honor, in my opening statement I made reference to him
pursuing her in other rooms after the initial incident that
took place in the bedroom. I have no intention of introducing
anything that was not included in the discovery that was
provided. She spoke to the police officers about him pursuing
her in other rooms. She also spoke in the police report about
the fact that she had gone to her friend immediately
afterward and what she told her friend.
trial court noted defense counsel's objection and
informed him the court will "listen to the evidence and
we'll cross that bridge when we get to it."
initially that defense counsel did not move for a mistrial.
He merely objected to what he alleged was reference to other
crimes evidence that he had not been provided in discovery.
In her opening statement, however, the prosecutor explained
A.D.'s movements throughout the house as she tried to get
away from the defendant who kept grabbing her. In other
words, the prosecutor described a continuous transaction of
events that lasted a few minutes at most and constituted a
single event of molestation of a juvenile. Thus, even if the
prosecutor in her opening statement had referenced other
specific acts of the defendant, which she did not, such other
crimes evidence would have been admissible as conduct that
constituted an "integral part" of the act or
transaction, and for which the defendant was not entitled to
notice. See LSA-C.E. art. 404(B)(1); State v.
Craddock, 435 So.2d 1110, 1117-18 (La.App. 1 Or. 1983)
(finding the acts of the defendant immediately before and
after the death of the victim, which occurred within a span
of 30 to 45 minutes, established events comprising the res
gestae and, as such, no notice was required and the evidence
was properly admitted). See also State v.
Odenbaugh, 10-0268 (La. 12/6/11), 82 So.3d 215, 250-52,
cert, denied, __ U.S. __, 133 S.Ct. 410, 184 L.Ed.2d
51 (2012); State v. Taylor, 01-1638 (La. 1/14/03),
838 So.2d 729, 740-45, cert, denied, 540 U.S. 1103,
124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).
we note that the only allegation as to other crimes evidence
was regarding the prosecutor's comments made in her
opening statement during a bench trial, and no other crimes
evidence was introduced at trial. Accordingly, the defendant
has shown no prejudice. A judge, unlike a jury, by virtue of
the judge's training and knowledge of the law is fully
capable of disregarding any impropriety. State v.
Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d
517, 521, writ denied, 02-2519 (La. 6/27/03), 847
So.2d 1254. See State v. Mahogany, 07-360 (La.App. 5
Cir. 10/30/07), 970 So.2d 1150, 1155-57.
foregoing reasons, this assignment of error is without merit.
OF ERROR NOS. 2 and 3
these related assignments of error, the defendant argues,
respectively, the trial court erred in denying his motion for
mistrial and his motion for continuance, both for the
State's failure to turn over potentially exculpatory
evidence, namely the Children's Advocacy Center (CAC)
well settled that the State has an affirmative duty to
disclose exculpatory evidence favorable to the defendant.
Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct.
1194, 1196-97, 10 L.Ed.2d 215 (1963). But in order to prove a
Brady violation, the defendant must establish, inter alia,
that the evidence in question was, in fact, exculpatory or
impeaching. State v. Garrick, 03-0137 (La. 4/14/04),
870 So.2d 990, 993 (per curiam). Disclosure of exculpatory
evidence should be made in time to allow a defendant to make
effective use of such information in the presentation of his
case. State v. Prudholm, 446 So.2d 729, 738 (La.
1984). In order to be entitled to a reversal for failure to
timely provide exculpatory information, the defendant must
show that he was prejudiced. Discovery violations do not
provide grounds for reversal unless they have actually
prejudiced the defendant. Garrick, 870 So.2d at 993.
mistrial may be ordered when there is a legal defect in the
proceedings which would make any judgment entered upon a
verdict reversible as a matter of law. LSA-C.Cr.P. art.
775(3). A mistrial is a drastic remedy which should only be
declared upon a clear showing of prejudice by the defendant.
In addition, a trial judge has broad discretion in
determining whether conduct is so prejudicial as to deprive
an accused of a fair trial. State v. Smith, 418
So.2d 515, 522 (La. 1982). See State v. Berry,
95-1610 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 449,
writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.
A reviewing court in Louisiana should not reverse a
defendant's conviction and sentence unless the error has
affected the substantial rights of the accused. See
LSA-C.Cr.P. art. 921.
Beth Russell, with the Tangipahoa Parish Sheriff's
Office, was the lead detective on A.D.'s case. On
cross-examination at trial, Detective Russell testified that
she had interviewed A.D. and recorded the interview. Defense
counsel learned from Detective Russell on cross that A.D. had
undergone a forensic interview at the CAC on June 21, 2012.
Detective Russell explained that because of A.D.'s age -
over the age of fourteen - there would be an audio recording
of the interview. However, the detective did not have the CAC
interview and further informed defense counsel that the
interview had not been transcribed. According to Detective
Russell, "[t]hat was around the point in time that the
Sheriff's Office quit transcribing the tapes." The
CAC tape, thus, was not in possession of the State, but was
still with the transcriber. Detective Russell did not
reference the CAC interview in any of her reports.
point, defense counsel moved for a mistrial. He argued that
the CAC tape "clearly had evidentiary value" and
that he was not provided the tape in discovery, despite his
request. Defense counsel contended he had a right to know of
the existence of the CAC tape and then to "have an
opportunity to examine it in preparation for
cross-examination of the alleged victim in this case."
Your Honor, at the time that discovery was propounded upon
the State, we provided everything that we had in our
possession. The State has no copy of a CAC transcript in its
record. We have no copy of any type of recording from them in
our file. We have no intention of calling anyone from [the
CAC] to the stand today at trial. I mean, the defense
indicated that they were satisfied with the discovery that
they were provided with at the time that we provided
discovery. I would object to the mistrial, motion for
Judge, and in no way, shape or form am I trying to lay blame,
and I certainly don't blame the State because if they
weren't aware of it they can't give it to me. But
there is an analogy here it's kind of like asking the fox
to guard the hen house. Even though they don't know about
it, if law enforcement knows about it and they do not
disclose it to the State and in particular it is an item of
substantive evidence such as a CAC tape, then unfortunately
the State has to bear the negative inference of that and in
this case I think the only appropriate remedy is that of a
mistrial. It could have affected our entire approach in this
case. My client waived a jury on the basis that we didn't
have such a tape. And maybe the State doesn't intend to
use it in lieu of the testimony of the victim, but that's
not the only issue because the Code of Criminal Procedure
says either side may present that tape into ...