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
Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dale N. Atkins
F. Love, Judge.
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.
AND PROCEDURAL BACKGROUND
October 2013, the victim L.A. 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.
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.
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.
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
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. 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.
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.
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.
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.
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
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.
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
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.
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 ...