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State v. Gross

Court of Appeals of Louisiana, First Circuit

April 18, 2017

STATE OF LOUISIANA
v.
RONALD GROSS

         On 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

          Jeff 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.

          McCLENDON, J.

         The 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 resentencing.

         FACTS

         A.D. 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.[1] 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.

         According 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.

         A.D. 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.

         ASSIGNMENT OF ERROR NO. 1

         In his 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.

         The 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.

         At the 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 conduct."

         To this 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.

         The 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."

         We note 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).

         Finally, 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.

         For the foregoing reasons, this assignment of error is without merit.

         ASSIGNMENTS OF ERROR NOS. 2 and 3

         In 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) tape.

         It is 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.

         A 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.

         Detective 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.[2] Detective Russell did not reference the CAC interview in any of her reports.

         At this 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."

         The prosecutor responded:

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 mistrial.

         Defense counsel replied:

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 ...

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