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State v. Floyd

Court of Appeals of Louisiana, Second Circuit

June 27, 2018


          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 Lee Harville


          JAMES E. STEWART, SR. Counsel for Appellee District Attorney

          TRENEISHA J. HILL JASON W. WALTMAN TOMMY J. JOHNSON Assistant District Attorneys

          Before MOORE, GARRETT, and McCALLUM, JJ.

          MOORE, J.

         Following 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.[1] For the following reasons, we affirm the defendant's conviction for indecent behavior with a juvenile.


         The 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.

         The 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.

         Defense 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.


         Defendant's 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.[2] 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.

         The 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.

         The 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.

         Prior 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.

         A 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.

         On 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 2008.

         Sgt. 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.

         The 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 victim.[3]

         The 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 ...

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