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United States v. Benoit

Court of Appeals of Louisiana, Fifth Circuit

December 29, 2017





          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg


         Defendant, Richard Justin Benoit, appeals his convictions of sexual battery (count one) and attempted aggravated incest (count two). For the reasons that follow, we affirm defendant's convictions and sentence on count one; vacate defendant's sentence on count two and remand for resentencing on count two.

         Facts and Procedural History

         Defendant was indicted by a grand jury on May 8, 2012, and charged with aggravated rape of a minor, L.B., [1] under the age of thirteen, in violation of La. R.S. 14:42(4)[2] (count one) and with aggravated incest of L.B, in violation of La. R.S. 14:78.1[3] (count two).[4] Defendant pled not guilty on June 20, 2012.

         On April 7, 2014, after a four day trial, a twelve-person jury found defendant guilty of the responsive verdicts of sexual battery on count one and attempted aggravated incest on count two. On July 30, 2014, defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, which were denied by the trial court. Defendant was sentenced to fifty years at hard labor with thirty-five years without the benefit of parole, probation, or suspension of sentence on count one and forty-nine and one-half years on count two, to be served concurrently.[5] Defendant filed a motion to reconsider sentence, which was denied by the trial court on August 29, 2014. On September 25, 2014, defendant filed a motion for appeal, which was granted by the trial court on September 26, 2014. This appeal followed.

         On February 29, 2012, Detective Walter Banks, a juvenile detective with the St. Charles Parish Sheriff's Office, met with J.A., the mother of the victim, L.B., regarding a complaint of child sexual abuse. He spoke with J.A. and L.B. individually. J.A. stated that L.B. told her that L.B.'s dad, defendant, touched her inappropriately and tried to have sex with her four times. L.B., who was eight years old at the time, disclosed that she was sexually abused by her father. L.B. stated that defendant tried to "stick his…private part" in her "private part, "[6] however, he was not successful because she "squeeze[ed]" her "butt." Her dad also watched a video on his cell phone[7] to see how he could "do it." She told the detectives that her "dad has sex problems." He told her that he could not go to sleep without it. She was scared to tell anyone because defendant told her if she ever told anyone, the police would be called, and they would "slit off his neck." She stated that this occurred four times, and he "touched her everywhere with his private." One time, he put green dish soap on his private to "make it slippery" to "try to stick it in easier, " but was unsuccessful. She explained that this happened when she stayed with her dad, his ex-wife, J.B., and the three boys at his trailer.[8]

         At trial, J.A. testified that these allegations by L.B. were brought to her attention in January 2012 when L.B. protested visiting with her dad on his weekend. L.B. told her that she did not want to go because her dad was touching her. After this disclosure, J.A. spoke with J.B., defendant's ex-wife, who currently lived with defendant, and they confronted defendant about the allegations. J.A. testified that defendant denied the allegations, but after specific details provided to J.B. by L.B. were revealed, he "second-guessed" himself. She did not initially call the police because she did not want her daughter's name "slandered out over St. Charles Parish." However, she ultimately contacted the police.

         At the time of trial, L.B. was ten years old and testified that when she was six or seven, her dad would come home from the bar and move her from where she was asleep on the sofa to her room and "sexually abuse" her. Her dad would remove her clothes and their "privates" touched. L.B. explained that his "private" was "between my legs." He told her that he "needed to do that or he couldn't go to bed." His private did not go all the way in her "tu-tu." His private also went by her "butt, " but it did not go in there either. L.B. stated that this happened four or five times. She testified that he put green soap that smelled like green apples on his private part. She did not tell anyone because she "loved him at that point, " and he told her that if she said anything, they would "chop off his head." She finally told her mom what happened because her "dad got his own apartment, and I was afraid that he was going to do it day and night."

         Anne Troy, a nurse practitioner at Children's Hospital who was qualified as an expert in pediatric forensics, specializing in child maltreatment, including physical and sexual abuse, testified that she conducted a forensic evaluation of L.B. on March 5, 2012. Ms. Troy stated that L.B. provided a spontaneous, detailed disclosure of abuse. In explaining what happened to her, L.B. did not "pause as if remembering something that she was told to say, " and Ms. Troy diagnosed sexual abuse. Ms. Troy further stated that L.B. presented with other non-specific behavioral issues, including urinary control problems, mood swings, weight changes, eating problems, and loss of energy, that are symptoms that "would be consistent with sexual abuse."

         After speaking with J.A. and L.B., Detective Banks obtained a search warrant for defendant's current apartment and the trailer home where he lived when the incidents occurred. Detective Banks also prepared an arrest warrant for defendant, which was executed at the same time as the search warrant. Defendant was arrested at his apartment, where he was Mirandized, and agreed to speak with Detective Banks. Defendant stated that the only time he "touched" his daughter was to help her "wipe herself" after using the bathroom. In his initial statement, defendant voluntarily acknowledged that he had a self-diagnosed "sex addiction" and a "drinking problem." He stated he could not go to sleep if he did not have sex. He admitted that on five or six occasions, after a night of drinking, he found himself at home but could not remember what happened or how he had gotten home. He conceded that on one of these occasions the allegations made by L.B. "could have happened." Once defendant was transported to the jail, defendant gave another statement. In his second statement, defendant said, "I definitely don't think she would lie about all that, not that detailed." He reiterated that he believed his daughter, which is why he stated that "there's definitely that possibility that I, . . I could have."

         Defendant testified at trial that he never sexually abused or touched L.B. inappropriately. He first learned about these allegations in February 2012, when he was confronted by J.A. and J.B. On the five or six occasions he told police that he was drinking and had no knowledge of what happened, L.B. had only stayed with him for one of those times. When further confronted with his acknowledgment of how the abuse could have happened, he testified that he only said what he thought he should say so he could go back to his cell. When he was brought to the jail, he was placed on suicide watch and put in paper clothes. The interview room was cold and he was "ready to get out of the room" because he was "tired of discussing this with them."

          J.B. testified on behalf of defendant. She stated that while she initially believed L.B. about the allegations, the more she thought about it, "stuff didn't really start falling in place" and believed that "it couldn't have happened on those days" alleged by L.B.

         On rebuttal, the State called Shakira Herbert, a child welfare specialist with the Department of Children and Family Services, who testified that she investigated this case and spoke with defendant regarding the allegations. Defendant spoke with her willingly and told her that while he did not remember being sexually inappropriate with L.B., "when he was wasted, it could be possible."


         In his first assignment of error, defendant argues that the trial court erred in failing to make a determination that the victim in this case, L.B., was competent under La. Code of Evidence art. 601. He contends that a child, like any other witness, must be shown to have "proper understanding, " and during the short colloquy between the trial court and L.B. before her testimony, the trial court failed to make this determination.

         The record shows that before L.B. was sworn in, the trial court engaged in a short colloquy with her. In the colloquy, the trial court asked L.B. questions about her age, where she went to school, her favorite school subject, and the importance of telling the truth. After this colloquy, L.B. was sworn in and testified regarding the subject matter of this case. At no point either before the colloquy, at the time of her testimony, or after her testimony concluded, did defendant challenge L.B.'s competency to testify. Defendant first raised this issue in his motion for new trial, wherein he argued that there was no determination of L.B.'s competency as required by La. C.E. art. 601. The trial court denied the motion.

         In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841; State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La. 10/03/03), 855 So.2d 294. The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant, procedural irregularity, or evidentiary mistake. Id.

         Further, a defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594. While competency was raised in his post-trial motion for new trial, because there was no timely objection made as to L.B.'s competency before, during, or after her testimony articulating the grounds for his objection, this issue was not properly preserved for appeal.

         In his second assignment of error, defendant argues that the trial court erred in not granting his motion for mistrial after the State inappropriately referred to an inculpatory statement by defendant during opening arguments. Pursuant to La. C.Cr.P. art. 767, the State was prohibited from making any reference in its opening statement to a confession or inculpatory statement unless the statement had been previously ruled admissible. Defendant contends that the State had a duty to show that the statement was made freely and voluntarily. He argues that under the clear reading of La. C.Cr.P. art. 767, reference to it by the State during opening statements prior to the statement being admitted was prejudicial to defendant.

         After voir dire, the State formally filed its notices stating that all statements were provided in discovery and no motions challenging the admissibility of the statements were filed by defendant. The State further argued that because defendant did not file a pretrial motion to suppress his confession, any objection was waived pursuant to La. C.Cr.P. art. 703. The State then requested the trial court to "take notice and grant the motions." Defendant argued that he could not object to the notices because the State had not moved to introduce the statements into evidence. The trial court declined to grant the introduction of the statements into evidence, but allowed the notices to be filed into the record. When specifically asked by the trial court if he intended to object to the State alluding to defendant's statements in its opening statement, ...

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