APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH
OF ST. CHARLES, STATE OF LOUISIANA NO. 12, 159, DIVISION
"D" HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF APPELLEE, STATE OF LOUISIANA Jeffrey M.
Landry Winston White
COUNSEL FOR DEFENDANT APPELLANT, RICHARD BENOIT Mark A.
composed of Judges Marc E. Johnson, Stephen J. Windhorst, and
Hans J. Liljeberg
STEPHEN J. WINDHORST JUDGE
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
and Procedural History
was indicted by a grand jury on May 8, 2012, and charged with
aggravated rape of a minor, L.B.,  under the age of thirteen,
in violation of La. R.S. 14:42(4) (count one) and with
aggravated incest of L.B, in violation of La. R.S.
14:78.1 (count two). Defendant pled not guilty on June
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. 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.
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,
" however, he was not successful because she
"squeeze[ed]" her "butt." Her dad also
watched a video on his cell phone 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
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.
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."
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
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."
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."
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.
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."
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
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.
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.
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.
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.
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, ...