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State v. Sanchez-Rodriquez

Court of Appeals of Louisiana, Fourth Circuit

December 12, 2018

STATE OF LOUISIANA
v.
JORGE SANCHEZ-RODRIQUEZ

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 518-633, SECTION "D" Honorable Paul A Bonin, Judge.

          Michael Danon Assistant District Attorney Leon Cannizzaro District Attorney DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT/DEFENDANT

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          Terri F. Love, Judge.

         Jorge Sanchez-Rodriguez ("Mr. Rodriguez") appeals his conviction and sentence for sexual battery. We find the evidence submitted at trial is sufficient to support the conviction. However, while Mr. Rodriguez's sentence falls within the legal parameters of La. R.S. 14:43.1(C)(2), we find the trial court based the sentence, in part, on an incorrect interpretation of the facts and an impermissible sentencing consideration. Therefore, we affirm Mr. Rodriguez's conviction and remand the matter to the trial court for resentencing consistent with this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         In October 2013, the victim L.A.[1] lived with her mother, father, and older brother in New Orleans. At the time of the incident, the victim was four years old. Mr. Rodriguez, who L.A. and her family knew as "TeeTee," lived next door with his wife Melania Sanchez ("Mrs. Sanchez"), and their five-year old daughter. From time to time, Mr. Rodriguez's daughter A.S. and the victim would play together.

         In early October 2013, Mrs. Sanchez, accompanied by her daughter, went to the victim's house seeking assistance from L.A.'s mother L.F., in translating some documents. L.F. allowed her daughter L.A. to visit Mr. Rodriguez's residence for a play date with A.S. Shortly thereafter, A.S. returned to the victim's residence crying and without the victim. When L.F. asked A.S. why she was crying she replied: "My dad sent me here." L.F. then learned her daughter was still with Mr. Rodriguez at his residence. L.F. subsequently sent her son J.A. next door to find his sister. When J.A. entered Mr. Rodriguez's residence, he saw L.A. naked and lying on the floor crying. J.A. testified that he also observed Mr. Rodriguez seated on the sofa "wrapped up in a blanket…all over his body." When he returned home with his sister, L.A. was crying.

         L.A. eventually explained to her mother that "TeeTee" touched her "peepee," her breasts, called her "Mommy," and "put [his] thing on/in my mouth." L.F. observed red spots on the areas the victim mentioned. On the same date, L.A. was taken to Ochsner Hospital, where she was directed to Children's Hospital for an examination and testing.

         Detective Nakeisha Barnes ("Detective Barnes") of the NOPD Child Abuse Unit was the lead investigator in this matter. Detective Barnes was notified of the incident involving L.A. by the responding patrol officer, who provided Detective Barnes with specifics of the incident. Detective Barnes relocated to Children's Hospital where she met with L.A. and her parents. She also spoke with the victim's treating physicians and learned through her investigation that L.A. suffered a sexual assault by Mr. Rodriguez, her next-door neighbor. Detective Barnes arranged for L.A. to undergo a sexual assault/forensic examination, which included swabs of various parts of her body that were preserved for DNA analysis.

         Ann Troy ("Nurse Troy"), a pediatric forensic nurse practitioner at Children's Hospital specializing in child abuse, conducted the forensic examination of L.A. on October 12, 2013, at the Child Advocacy Center (CAC). Prior to conducting the examination, Nurse Troy reviewed the victim's medical records which included an emergency room record. Nurse Troy obtained other medical and social history of the victim from the victim's mother L.F. and later authored a report of her examination of L.A. and the conclusion drawn from her observations. At trial, Nurse Troy testified that she performed a physical examination of L.A. and reviewed with L.A. an anatomically correct drawing of a child's body to ascertain the areas of L.A.'s body affected during the incident. She also identified the tape recording of her interview and examination of L.A. She testified that a translator was in the room to assist in bridging the language barrier as L.A. spoke in Spanish and English. The recording was played in court for the jury.[2] In the interview, L.A. explained to Nurse Troy that Mr. Rodriguez licked her breasts and digitally penetrated her vagina. Nurse Troy also testified that she did not detect any indications that L.A.'s testimony of the incident was coached. In fact, Nurse Troy stated that a four-year-old has no cognitive ability or frame of reference to fabricate a story of sexual abuse.

         After speaking with the victim, her family, the treating physicians and Nurse Troy, Detective Barnes obtained an arrest warrant for Mr. Rodriguez. Following his arrest, a search warrant was obtained for a buccal swab from Mr. Rodriguez. The reference sample was obtained and submitted into evidence.

         Julia Naylor ("Ms. Naylor"), an expert in the field of DNA analysis employed by the Louisiana State Police Crime Lab, received and tested the contents of the sexual assault kit compiled in this case and authored a report on her findings. The sexual assault kit contained vaginal and oral swabs; two tubes of reference blood; left and right hand fingernail scrapings; and dried secretion gauze, all obtained from the victim on the day of the incident.

         The test results from the dried secretion gauze indicated there was more than one contributor of DNA to the gauze. The major contributor was the victim, but the minor contributor was present at such a low concentration, that a valid DNA profile could not be obtained, except to note that the minor contributor was a male.

         Testing of the genital swabbing gauze was consistent with a mixture of DNA from at least two male individuals, but again, there was such a limited profile generated, Ms. Naylor could neither include nor exclude Mr. Rodriguez, or any other male individuals in his biological paternal lineage, as the contributor of the DNA. When questioned how such an anomaly could occur, Ms. Naylor opined: "Two males came in contact with the genital area. One male came in contact with the genital area; one male came in contact with the genital swab. There are a million different scenarios." Because there was not enough DNA present on the swab to obtain a valid profile of the contributor, the results were inconclusive.

         L.A., eight years old at the time of trial, took the witness stand, but would not testify. Although she stated that she remembered the incident and recalled going to the hospital, L.A. would not talk about what happened to her. A.S., Mr. Rodriguez's daughter, was also called as a witness but was allegedly too frightened to testify.

         Melania Sanchez, Mr. Rodriguez's wife, testified that she and Mr. Rodriguez had been together since 2007 and had two daughters. Mrs. Sanchez stated that the victim and the victim's family were neighbors at the time of the incident. Mrs. Sanchez stated that A.S. and the victim played together frequently at both homes. Mrs. Sanchez indicated that the girls were never alone when playing at her house because she was always present watching them. She recalled that whenever L.A. came to her house to play with A.S., L.A. was rebellious and would misbehave. Mrs. Sanchez said L.A. would jump on the beds and furniture, and spill baby powder in the house. On one occasion, Ms. Sanchez stated she went into the bedroom and found L.A. had removed A.S.'s clothes and both girls were lying next to one another naked. Ms. Sanchez testified that she chastised the girls and reported the incident to L.A.'s mother, but she did not seem concerned. According to Mrs. Sanchez, L.F. became very angry for accusing her daughter.

         Mr. Rodriguez also testified in his defense at trial and denied harming L.A. He explained that he came to the United States from Honduras and worked as a welder in Baton Rouge until the time of his arrest. He stated that L.A. would come to his house frequently to play with his daughter. He also said L.A., unlike his daughter, was not well-behaved. Additionally, he indicated that the victim was hyperactive and not an obedient child. Mr. Rodriguez also corroborated his wife's testimony about the two girls naked in the bedroom. He testified that his daughter told him that the victim had touched her (A.S.'s) "peepee." Mr. Rodriguez testified that he forbid his daughter to have anything more to do with the victim.

         Conversely, L.F. testified that at no time before the day of the incident was the victim ever allowed to play at Mr. Rodriguez's residence. She also denied that Mr. Rodriguez complained to her about L.A.'s behavior. L.F. testified that following the incident, she and her family lived next door to Mr. Rodriguez and his ...


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