Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 315, 270 Honorable
Katherine Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas
BENJAMIN MICHAEL FLOYD Pro Se
E. STEWART, SR. Counsel for Appellee District Attorney
TRENEISHA J. HILL JASON W. WALTMAN TOMMY J. JOHNSON Assistant
MOORE, GARRETT, and McCALLUM, JJ.
a jury trial, the defendant, Benjamin Michael Floyd, was
convicted as charged of indecent behavior with a juvenile.
The court imposed a sentence of 20 years hard labor without
benefit of probation, parole or suspension of sentence. On
the same day, the state filed a multiple offender bill, which
was still pending when the defendant filed the instant appeal
of his conviction. For the following reasons, we affirm the
defendant's conviction for indecent behavior with a
defendant pulled a float in a 2013 Mardi Gras parade held in
Shreveport. While he and other float drivers were queued up
to move their floats into a storage garage, Floyd went to the
back of his truck to sit beside his 12-year-old niece, C.H.
The girl testified that Floyd told her that she was his
"new favorite toy," and he began groping her
breasts, touching her legs and buttocks. Two witnesses, float
driver Thelbert James Elmore, Jr., and his 16-year-old
daughter, Casey Elmore, testified that they walked over to
Floyd's truck to speak with him and saw him rubbing
C.H.'s legs in an inappropriate manner. C.H. reported her
uncle's advances to her mother, who in turn reported the
incident to authorities.
defendant was charged by amended bill of information with
indecent behavior with a juvenile, La. R.S. 14:81. After a
jury trial, he was convicted as charged by a unanimous jury.
counsel assigned one error by the trial court in this appeal,
while the defendant filed a separate brief alleging six pro
se assignments of error.
counseled assignment of error alleges that the trial court
erred by admitting evidence of two previous alleged acts of
sexual misconduct pursuant to La. C.E. art.412.2,
particularly where one of the alleged acts involved conduct
that was more serious than the offense for which Floyd was
being tried. Both of the alleged prior acts involved the same
victim, C.H., which she disclosed during a Gingerbread House
interview. The more serious conduct described by C.H.
occurred several years earlier while Floyd was temporarily
living at the house with C.H. and her mother after he was
released from prison in March of 2008. C.H. said that
she was asleep in bed when she was awakened by a tickling
sensation on her vagina and discovered Floyd was licking her
vagina. She said her pants and underwear had been removed and
she felt his penis between her legs. She also said that in
early 2011 when she and her mother lived in Benton, Arkansas,
Floyd told her she "had big breasts" and attempted
to view her breasts by blowing under her shirt.
defendant argues that because the evidence that he performed
oral sex on the victim when she was around 5 years old was
more serious than the instant offense for which he was
charged, it was inadmissible under State v. Jackson,
625 So.2d 146 (La. 1993). In Jackson, the defendant
was charged with molesting his granddaughters. The state
sought to put on evidence of certain prior illicit sexual
acts performed by the defendant with his daughters. The
Louisiana Supreme Court held that the defendant's alleged
prior acts of kissing his daughters and fondling their
breasts were admissible, but his alleged prior acts of raping
one daughter, showing his penis to another, and fondling
their vaginas were inadmissible under La. C.E. art. 404(B)
"because the prejudicial value of the testimony
outweighs its probative force, considering that the defendant
is charged only with kissing his granddaughters and fondling
their breasts in the present case." Id. at 152.
The court noted that the prior acts were "dissimilar and
more serious than the current criminal charges," and
stated that recitation of those prior acts would serve only
to inflame the jury. Id. Hence, their admission
would have violated La. C.E. art. 403, as their prejudicial
effect would outweigh their probative value.
state argues that Jackson is distinguishable from
the instant case because the evidence of prior acts sought to
be admitted did not involve conduct against the same victim
in the crime charged, and furthermore, Jackson was
decided prior to the enactment of La. C.E. art. 412.2, which
requires a less stringent similarity requirement than La.
C.E. art. 404(B), which is the general provision governing
"other crimes, wrongs or acts" evidence.
to trial, the state filed notice of its intention to use
three prior sexually assaultive acts by the defendant at
trial: (1) his prior performance of oral sex on C.H. and
placement of his penis between her legs around March of 2008;
(2) his statement to C.H. that she had "big
breasts" and his attempt to view her breasts by blowing
up her shirt around January of 2011; and (3) his remark to
K.E., another juvenile, asking her if she had any naked
photographs of herself on Facebook, which occurred in late
2012 or early 2013.
hearing was held to determine the admissibility of the prior
sexually assaultive acts pursuant to La.C.Cr.P. art. 412.2.
Caddo Parish Sheriff Sgt. James Moore testified that he
observed C.H.'s forensic interview at the Gingerbread
House in Shreveport, Louisiana. He said C.H. told the
forensic interviewer that sometime in January of 2011, when
Floyd was helping her and her mother move to Benton,
Arkansas, he and C.H. were left alone together when
C.H.'s mother left to get pizza. Floyd lay down on a bed
next to C.H., made comments about her breasts and then tried
blowing up her shirt to see them.
another occasion, when C.H. was approximately five years old,
she recalled sharing a bed with Floyd and waking up feeling
something tickling her vagina. She also said she felt his
penis between her legs. When she woke up the next morning,
her pajama pants were on the floor. Sgt. Moore confirmed that
Floyd admitted in a post-Miranda statement to sleeping next
to C.H. one or two nights. This incident occurred in March of
Moore also testified that he spoke with another minor, K.E.,
who stated that Floyd had once asked her if she had any naked
photographs of herself on Facebook.
trial court also viewed the video recording of C.H.'s
Gingerbread House interview which confirmed the testimony of
Sgt. Moore. Following the hearing, the court ruled that the
prior sexual acts involving C.H. were admissible at trial to
show the defendant's lustful attitude toward her, but
that the prior act involving K.E. could not be used at his
trial because it was too far removed from the inappropriate
conduct with C.H. The court appeared to place significant
emphasis on the fact that the prior conduct involved the same
general rule regarding other crimes or acts is provided by
La. C.E. art. 404, which provides in part:
B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, of the nature of any
such evidence it intends to introduce at trial for such
purposes, or when it relates to conduct that constitutes an
integral part of the act or transaction that is the subject
of the present proceeding.
La. C.E. art. 412.2(A) provides a narrow exception to Art.
404(B) in cases involving sexual offenses against children
allowing the admission of certain relevant evidence of a
defendant's lustful ...