FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE,
NO. 74690 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
Burkett District Attorney Anna L. Garcie Assistant District
Attorney Counsel for Appellee: State of Louisiana.
Mitchell J. Creel Creel Law Firm Counsel for
Defendant/Appellant: Santiago Alonso Gonzalez, Sr.
L. Ottinger Juvenile Justice Project of Louisiana Counsel for
Defendant/Appellant: Santiago Alonso Gonzalez, Sr.
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and D. Kent Savoie, Judges.
PHYLLIS M. KEATY JUDGE.
Santiago Alonso Gonzalez, Sr., was charged by bill of
information filed on April 30, 2015, with aggravated crime
against nature, a violation of La.R.S.
14:89.1(A)(2)(a). Trial by jury commenced on January 26,
2017, and the following day, the jury found Defendant guilty
of the responsive verdict of attempted crime against nature,
a violation of La.R.S. 14:27 and La.R.S. 14:89. Defendant
filed a Motion for New Trial on March 2, 2017, alleging the
verdict was contrary to the law and evidence. Several weeks
later, he filed a First-Amended Motion for New Trial on the
basis of newly discovered evidence. After a hearing, the
trial court denied Defendant's new trial request without
reasons. On May 25, 2017, Defendant was sentenced to serve
seven years at hard labor, the sentence was suspended, and
Defendant was placed on supervised probation for six years.
appealed and is now before this court asserting the following
assignments of error: 1) the trial court erred in denying his
First-Amended Motion for New Trial; 2) the trial court
imposed an illegal sentence of six years supervised
probation; 3) the trial court imposed an illegal condition of
supervised probation; and, 4) a portion of the Order of
Notification to Sex Offender is erroneous.
biological daughter, E.G.,  claimed that Defendant forced her
to have sexual intercourse with him every few weeks between
March 4, 2012, and April 1, 2015.
of Defendant's First Amended Motion for New Trial
first assignment of error, Defendant contends the trial court
erred in denying his First Amended Motion for New Trial, in
violation of La.Code Crim.P. art. 851(B)(3) and his rights
under La.Const. art. 1, § 2 and § 16 and U.S.
Const. amend. VI and XIV.
The court, on motion of the defendant, shall grant a new
trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the
exercise of reasonable diligence by the defendant, was not
discovered before or during the trial, is available, and if
the evidence had been introduced at the trial it would
probably have changed the verdict or judgment of guilty.
La.Code Crim.P. art. 851(B).
A motion for a new trial based [upon newly discovered
evidence] shall contain allegations of fact, sworn to by the
defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence
by the defendant, the new evidence was not discovered before
or during the trial;
(2) The names of the witnesses who will testify and a concise
statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish;
(4) That the witnesses or evidence are not beyond the process
of the court, or are otherwise available. . . .
La.Code Crim.P. art. 854.
State v. McKinnies, 13-1412, pp. 9-14 (La.
10/15/14), 171 So.3d 861, 869-72 (footnotes omitted), the
supreme court explained:
La.C.Cr.P. art. 858 limits our review of the trial
court's ruling on the new trial motion: "In
reviewing the granting or the refusal to grant a new trial,
neither the appellate nor the supervisory jurisdiction of the
Supreme Court may be invoked, except for error of law."
Therefore, we review the trial court's ruling on the new
trial motion only for legal error. An abuse of the trial
court's discretion in ruling on a new trial motion on the
ground of newly discovered evidence presents a question of
"When ruling on an Article 851(B)(3) motion, a trial
judge's duty is not to weigh the new evidence as though
he were a jury deciding guilt or innocence or to determine
what is true or false in light of the additional information.
In other words, the trial judge is not to assess the newly
discovered evidence as though he were a thirteenth
juror." Instead, "[t]he discretion vested in the
trial judge in passing on a motion for a new trial based on
the ground of newly discovered evidence in a criminal case is
to be exercised in determining the diligence shown, the truth
of the matters stated, and the materiality and probability of
their effect, if they are believed to be true."
motion for a new trial is properly rejected when it is based
on evidence which should have, with reasonable diligence,
been discovered before or during the trial. State v.
Jones, 344 So.2d 1036 (La.1977); State v.
Rossi, 273 So.2d 265 (La.1973)." State v.
Marcal, 388 So.2d 656, 662 (La.1980), appeal
dismissed, cert. denied, 451 U.S. 977, 101 S.Ct. 2300
basis of Defendant's original motion for new trial was
that the State failed to present any physical or medical
evidence to corroborate his daughter's claim that he
forced her to have sex with him. In his amended motion for
new trial, Defendant stated that Marsha Meshell, E.G.'s
grandmother and his mother-in-law, had written a letter on
his behalf claiming that E.G. told her she made up the
charges because she was angry at her father. Defendant
explained that on March 22, 2017, Meshell informed his
counsel that she knew E.G. "had admitted to deception
when making accusations of aggravated rape" against
Defendant. Defense counsel attached an affidavit to the
amended motion, wherein he stated:
THAT he conducted reasonable due diligence in his search for
evidence in the above-referenced matter; and was unaware of
the existence of the evidence alleged by the
child-complainant's grandmother Marsha Mechell [sic]
prior to or during the defendant's trial;
THAT prior to the said trial, the defendant was court-ordered
not to contact anyone from his immediate family; and thus it
was not reasonable for him to be aware that the grandmother
of the child-complainant would have knowledge concerning said
undated letter written by Meshell, which was also attached to
the amended new trial motion, provided as follows:
My name is Marsha Meshell, mothe-in-law [sic] of Santiago
Gonzelez [sic] Sr. I have known him since he married my
daughter, Melinda Meshell Gonzeles [sic], which was about 18
yrs. He is a good man, a good Father to his children and
tries to raise them right. I know in my Heart this Man is
innocent. He wants his children to grow up and be somebody
and not doing things wrong. I know he did not do anything to
[E.G.], his daughter, because she has said to me several
times he didn't do it. [E.G.] said what she did because
she was mad at her Dad. He didn't want her to date and
get her education. She wanted to do what she wanted to no
matter what. I believe in my Heart he is innocent and God
knows, Santigo [sic] should be freed.
called two witnesses at the April 27, 2017 hearing on his
motion for new trial. The first was Defendant's
sister-in-law and E.G.'s aunt, Marsha Meshell
McDonald. McDonald stated that sometime after the
trial, she told defense counsel that E.G. told her that
"she lied on him, on her dad." McDonald
acknowledged having spoken to defense counsel twice in the
past several years regarding an unrelated matter, but she
claimed to not know that counsel represented Defendant until
after his trial. McDonald testified that she mentioned
E.G.'s recantation to Detective Aaron Mitchell four or
five months before the trial, and he said he would get
someone call her. McDonald identified a member of the
district attorney's staff, Natalie Rowe, who was sitting
in the courtroom during the hearing, as someone else whom she
told about E.G. having confided in her that the charged
offenses did not occur. McDonald explained that she and Rowe
had spoken at McDonald's workplace. Rowe told McDonald
that she would pass the information on to her office and
someone would get back in touch with McDonald. According to
McDonald, no one from the district attorney's office
followed up on the matter and neither did she. McDonald
confirmed that she would have been available to testify at
Defendant's trial. On cross-examination, McDonald
initially claimed that she did not tell her mother, Meshell,
about what E.G. told her; however, she later remembered
discussing the matter with Meshell. McDonald was sure she
never told her sister, Melinda Gonzalez, E.G.'s mother,
about E.G.'s alleged recantation.
mother-in-law, Marsha Meshell, was the second witness called
by the defense. Meshell confirmed that she had met defense
counsel once before in an unrelated matter that took place
before E.G. told her that the charges against Defendant were
untrue. When asked by defense counsel as to why she did not
reach out to him before Defendant's trial, Meshell
Well, I thought it was gonna [sic] be, like, when he came to
trial, you know. I was hoping and praying, you know, the Good
Lord, "Look. You know, in my heart I know he didn't
do it." And then when she told me this, you know, I even
asked her, I said, "Why don't you go forth and tell
the truth?" I said, "You know, because that's
your father." I said, "You only have one
father." And I said, "You know, I don't know
what made you say it or anything, " but I said, "if
you're telling me that he did not do it, please go and
tell the truth."
described the circumstances of E.G.'s recantation, as
Well, her mother was not at home at the time and we were
talking. And the words that she told me, that he didn't
do it, but if she didn't come up here and say she did and
they thought that - the Court thought she had lied, that she
would be in trouble and get sent off.
stated that she had only one such converstation with E.G.,
and she guessed that it occurred five or six months ago,
before Defendant's January 26, 2017 trial. Meshell
testified that she discussed E.G.'s recantation with her
daughters, Melinda and McDonald, but she did not tell anyone
else because she was not sure of who to speak to, and she was
not sure if they would believe her. According to Meshell,
McDonald told her that E.G. had recanted to her as well.
Meshell then read the letter she sent to defense counsel to
cross-examination, Meshell acknowledged that she was present
at E.G.'s house on several occasions when an employee of
the Department of Children and Family Services (DCFS) came to
visit. Upon being questioned as to whether it was true that
she and E.G.'s mother, Melinda, "began screaming up
in the victim's room" after the guilty verdict was
rendered, Meshell admitted she was upset and that she and
Melinda got "a little loud, " but she denied that
there was any screaming.
State called three witnesses to oppose Defendant's motion
for new trial. Natalie Rowe testified that she worked for the
Sabine Parish District Attorney's Office as support
staff. She denied that McDonald ever told her that E.G.
recanted her allegations ...