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State v. Gros

Court of Appeals of Louisiana, Fifth Circuit

February 21, 2018

STATE OF LOUISIANA
v.
RICKY J. GROS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-2922, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux.

          Juliet L. Clark COUNSEL FOR DEFENDANT/APPELLANT, RICKY J. GROS, Lieu T. Vo Clark.

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore.

          JUDE G. GRAVOIS JUDGE.

         Defendant, Ricky J. Gros, appeals his convictions and sentences for two counts of sexual battery of a juvenile under the age of thirteen and one count of indecent behavior with a juvenile under the age of thirteen. Specifically, he argues that the trial court erred in granting the State's motion in limine that prohibited defendant from questioning one of the victims about her allegations of sexual abuse against individuals other than defendant. For the following reasons, we affirm defendant's convictions and original sentences, affirm defendant's habitual offender stipulation, vacate defendant's habitual offender sentence, and remand the matter for resentencing under the habitual offender stipulation in accordance with this opinion, and for correction of the commitments as noted herein.

         PROCEDURAL HISTORY

         On June 5, 2014, a Jefferson Parish Grand Jury indicted defendant, Ricky J. Gros, with two counts of sexual battery of a known juvenile under the age of thirteen (D.O.B. 5/17/1999) in violation of La. R.S. 14:43.1 (counts one and two), and one count of indecent behavior with a known juvenile under the age of thirteen (D.O.B. 7/19/2001) in violation of La. R.S. 14:81 (count three). Defendant pled not guilty to the charges at his arraignment on July 31, 2014. On September 9, 2016, the State filed a motion in limine to preclude questioning of one of the victims about prior allegations of sexual assault against individuals other than defendant, pursuant to La. C.E. art. 412. The motion was heard and granted on September 12, 2016.

         Trial commenced the next day on September 13, 2016 before a twelve-person jury, which on September 14, 2016 found defendant guilty as charged on all counts. On October 12, 2016, the trial court sentenced defendant on count one (sexual battery) to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; on count two (sexual battery) to twenty-five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; and on count three (indecent behavior with a juvenile) to ten years imprisonment at hard labor, with the first two years of the sentence to be without the benefit of probation, parole, or suspension of sentence. The trial court further ordered the sentences to run concurrently. After sentencing on October 12, 2016, the State filed a habitual offender bill of information on count three, alleging defendant to be a second felony offender, to which defendant stipulated on November 14, 2016. The trial court then vacated defendant's sentence on count three and resentenced defendant as a second felony offender pursuant to La. R.S. 15:529.1 to twenty-five years imprisonment at hard labor without the benefit of probation or suspension of sentence, to run concurrently with his other sentences. On December 12, 2016, defendant filed a Motion for Appeal, [1]which was granted by the trial court on December 13, 2016. This appeal followed.

         FACTS

         In October 2010, Detective Kay Horne with the Jefferson Parish Sheriff's Office Personal Violence Unit was assigned the investigation of defendant, involving allegations of sexual abuse made by two juvenile victims, D.M. and T.W.[2] Detective Horne first followed up with T.L., the mother of T.W., who initially reported the allegations to the police.[3] At trial, T.L. testified that on October 21, 2010, her daughter T.W. disclosed to her that defendant[4] had sexually abused her when she was eleven years old.

         Detective Horne contacted T.L. and set up a forensic interview for T.W., which occurred on November 8, 2010. From information T.W. revealed in her forensic interview, Detective Horne learned of another victim, D.M., who is T.W.'s cousin, and contacted her mother, D.B., about the allegations and subsequently set up a forensic interview with D.M. Both T.W.'s and D.M.'s forensic interviews were videotaped, admitted into evidence, and published to the jury.

         At trial, T.W., who was seventeen years old at that time, testified that when she was between the ages of six and nine, she would regularly go to her aunt D.G. and defendant's house, about two to three times a week. She described that when she would go to their house, defendant would "put his hands underneath [her] pants and underneath [her] underwear, and he would touch [her] vagina and he would move his hands around [her], and he would move it inside of [her]." She recalled that this behavior would occur when they were in the living room on the sofa with her sitting on defendant's lap. She testified that she finally told her aunt about the abuse. Her aunt told T.W. that she would "take care of it, " but she never did. T.W. described that the abuse stopped because she stopped going over to defendant's house.

         At trial, D.M., who was fifteen years old at that time, testified that she stopped going to her grandmother (D.G.) and defendant's house "because of the incident." She described that defendant would touch her in her 'vaginal area, " but could not recall how old she was or how many times this behavior occurred. She similarly testified that this abuse occurred at defendant's house while they were sitting on the sofa.

         Anne Troy, a nurse practitioner at Children's Hospital, who was qualified as an expert in the field of forensic pediatrics and child abuse, including physical and sexual abuse, as well as delayed disclosure, testified that she examined both T.W. and D.M. In November 2010, she examined T.W. and concluded that she gave a "clear and detailed history of sexual abuse" by defendant "involving digital genital contact over 20 times at her aunt's home in Marrero, from the age of 7 until 10" and that her cousin D.M. was "abused simultaneously" at age nine. Ms. Troy examined D.M. on ...


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