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State ex rel. E.S.

Supreme Court of Louisiana

October 22, 2019



          CRICHTON, J. [*]

         We granted the writ in this matter primarily to address the constitutionality of mandatory lifetime sex offender registration under R.S. 15:542[1] as applied to a juvenile.[2] This is a direct appeal by the juvenile, E.S., who was adjudicated delinquent for the first degree rape of a child under the age of thirteen years old. Finding that there was insufficient evidence to determine E.S. was fourteen years old at the time of the offense, and therefore mandatory disposition pursuant to Ch. C. art. 897.1[3] and R.S. 15:542 is inapplicable to the case at hand, we affirm the adjudication of first degree rape, reverse the court of appeal's determination that there was sufficient evidence to establish E.S.'s age, vacate the disposition of the district court and remand for redisposition.


         In February 2017, five-year-old N.H. reported to her grandfather that E.S. "has me put his missy in my mouth." N.H.'s grandfather asked her to repeat herself, with which she complied, but otherwise he did not inquire further. According to N.H.'s grandfather, "missy" was the term N.H. used at the time to describe the sexual parts of a person. He thereafter repeated N.H.'s disclosure to N.H.'s mother who then reported the allegations to law enforcement.

         Detective Scott Davis, an investigator for the St. Tammany Parish Sheriff's Office, began investigating the complaint of sexual assault and scheduled a forensic interview of N.H. at the Children's Advocacy Center in Covington (the "CAC") on February 8, 2017. The interviewer, Barbara Hebert, Ph.D., was the executive director of the CAC at the time of the interview and is a licensed professional counselor.[4] At the beginning of the interview, Dr. Hebert told a story wherein one child told the truth and one child told a lie. N.H. properly indicated which child told the truth and which told a lie. Several generic questions - such as "[i]s anyone mean to you?" - did not elicit any information relative to E.S., and Dr. Hebert eventually asked N.H. to tell her about E.S. Among other things, N.H. twice said that E.S. is "nice."

         As N.H. began to indicate she was ready for the interview to be over, Dr. Hebert became more direct in her questioning.

DR. HEBERT: Did you say anything to your mom or [grandmother] about [E.S.]?
N.H.: I told [my grandfather] something.
DR. HEBERT: What did you tell [your grandfather]?
N.H.: That's inappropriate.
DR. HEBERT: Well, this is a place where we can talk about some of those inappropriate things.
N.H.: This is really yucky.
DR. HEBERT: It's okay. You can tell me because kids tell me stuff all the time. Because I'm here to help them.
N.H.: Well he tells me to suck his missy.
N.H.: And I don't. I just did it once.
DR. HEBERT: Okay, so you did it once.
N.H.: Actually, I did it lots of times.

         N.H. indicated that the alleged sexual abuse occurred in E.S.'s room because "otherwise they'll catch him." Upon request, she clarified that a missy is "that pointy thing" and pointed to her groin area. Dr. Hebert presented N.H. with an anatomical drawing of a boy and asked which part of the body was the "missy." N.H. circled the boy's penis, said "that's what I sucked," and added that it tasted like skin. With spelling assistance and at her own suggestion, N.H. wrote on a piece of paper "I sucked [E.S.'s] misy [sic]." She reported doing this "lots of times" and at one point said it occurred "twenty times."[5] Dr. Hebert asked N.H. if she was telling the truth or pretending, and N.H. answered "the truth."

         The victim was thereafter evaluated at the Audrey Hepburn Care Center in New Orleans (the "AHCC"), and a report summarizing the evaluation again indicated that N.H. made consistent disclosures related to the alleged sexual abuse.[6]Based on information provided by the victim's mother, observation of the victim's statements during the CAC interview, and review of the AHCC report, Detective Davis executed an arrest warrant affidavit in which he asserted that there was probable cause to arrest E.S. for first degree rape of a victim under thirteen years of age. The affidavit alleged that the incidents took place on or about March 31, 2016, or generally between November 2015 and March 2016.

         At the October 4, 2017 adjudication hearing, the State sought not only to prove that E.S. committed first degree rape upon the victim but also that the alleged sexual abuse occurred when E.S. was fourteen years old, which would trigger mandatory dispositions under Ch. C. art. 897.1 and R.S. 15:542. The petition charging E.S. expanded the time frame provided in the original arrest warrant affidavit, alleging that the sexual abuse occurred between November 2015 and December 2016.[7] E.S. turned fourteen on May 29, 2016. The State presented evidence that from the time N.H. was an infant either the victim's mother or grandparents would regularly bring N.H. to the house of E.S.'s mother, M.S., where E.S. also lived. The victim's grandmother testified that the original dates provided in support of the arrest warrant - November 2015 to March 2016 - were provided because that is when N.H. was visiting E.S.'s house. Her grandmother testified that during that time period, N.H. would go to E.S.'s house approximately once a week because M.S. would watch N.H. when her mother was studying or in classes. The testimony of both N.H.'s grandmother and M.S. indicated that N.H. was at the house of E.S. at least one time after E.S.'s fourteenth birthday.

         After the CAC interview was played for the court, Dr. Hebert, who was admitted as an expert in forensic interviewing and counseling, was questioned about the challenges she faces when interviewing a five year old. She testified that children of the victim's age have trouble with sequencing. They also tend to be literal such that questions must be asked in the exact manner that will allow them to respond. To illustrate a young child's level of understanding in regards to the wording of questions, Dr. Hebert recalled the victim becoming confused when the doctor attempted to confirm the victim's previous disclosures, asking, "Is it true that [E.S.] asked you to suck his missy?" The victim responded, "I don't know." Dr. Hebert immediately followed up with the more direct question of, "Is it true that you sucked [E.S.]'s missy?" At that point the victim stated, "Ahuh, I sucked it lots of times."

         Dr. Hebert confirmed that, based on her training and experience, it was common for children to hesitate in initially disclosing a traumatic experience and that it was not unusual for children to refer to an abuser as "nice." She explained that the victim's initial disclosure that the abuse occurred "once" was normal due to a child victim's reluctance to disclose sexual abuse, knowing that it could potentially harm the abuser. After N.H. disclosed that the abuse occurred once, the victim looked up at Dr. Hebert to see her facial response, and only after Dr. Hebert met the disclosure with acceptance did N.H. further disclose that the abuse occurred "lots of times" and as many as "twenty times," Dr. Hebert explained.

         The victim was still five years old at the time of the adjudication hearing. She ultimately testified that E.S. was not her friend, "[b]ecause he made me suck his mister."[8] When asked if E.S.'s "mister" touched any part of her body, she responded, "[m]y mouth." She explained that she had a "missy" instead of a "mister," defining a "missy" as "[s]omething that girls potty from." She stated that the incidents occurred in E.S.'s bedroom when only she and E.S. were present and the door was closed, and that she did it in exchange for playing with E.S.'s toys. She explained that the door was closed because E.S. did not want anyone else to see and stated that E.S. told her not to tell anyone. N.H. testified that E.S. put his mister in her mouth "a lot" of times. When asked if it was more than ten times, she responded affirmatively, but when asked if it was more than twenty-one times, she stated, "[i]t was 21 times."[9] When asked what, if anything, her mother told her to say at the adjudication hearing, she replied "the truth."

         E.S.'s only witness was his mother, M.S., who described herself as an "obnoxious mom" and asserted that her children have very little privacy in the house. She stated that E.S.'s room was located diagonally from her room and that the door to his room was usually kept open as he ran in and out. Whenever guests came over, however, she testified that E.S. would close his bedroom door because her daughters had many female visitors and E.S. did not want "a bunch of girls hanging out in his room." M.S. indicated that the victim was with her the whole time during the only visit in which N.H. was dropped off during the time period of the alleged abuse - which contradicted the State's evidence that N.H. was dropped off multiple times during the period in question. M.S. claimed that the victim visited M.S.'s house only three or four times total during the time period in question, which again contradicted the State's evidence that the victim visited M.S.'s house without her mother approximately once a week for the period provided in the arrest warrant affidavit.

         M.S. also testified that she was a stay-at-home mom until July 5, 2016, at which time she began working Monday through Friday, from 8:00 a.m. to 5:00 or 5:30 p.m., away from home. She confirmed that at times N.H. would be at M.S.'s house when she returned from work. On cross-examination, M.S.'s testimony became increasingly inconsistent. Contrary to her initial testimony that N.H. was never present in the home without M.S. or the victim's mother, M.S. eventually testified that it was possible that the victim was at her home with E.S. when she or the victim's mother were not present, "[b]ut five other people were" (i.e. the five people other than M.S. who lived in M.S.'s house). At this point, M.S. added that E.S. would keep his door locked when N.H. was there and that the victim was not allowed in his room.

         Prior to the adjudication hearing, the State filed a pretrial motion in limine seeking to exclude testimony of E.S.'s expert witness, Dr. Raphael Salcedo. The court, in granting the State's motion, explained that Dr. Salcedo was not permitted to view the CAC interview pursuant to R.S. 15:440.5[10] and In re A.M., 08-2493, p. 3 (La. 11/21/08), 994 So.2d 1277, 1279 (finding that the plain language of R.S. 15:440.5(C) prohibited an expert witness from viewing the videotaped statements of a "protected person" in preparation of trial). Because Dr. Salcedo admitted that he had viewed the video, the court excluded Dr. Salcedo's testimony due to the violation of R.S. 15:440.5.

         The defense proffered Dr. Salcedo's testimony outside of the judge's presence. Dr. Salcedo was tendered as an expert in psychology and conducting forensic interviews. He testified that children are susceptible to suggestion and leading questions. Dr. Salcedo testified concerning the phenomena known as "false memory" and explained that forensic interviewing requires a significant amount of clinical training and has to be done "very, very carefully because of the problem of this imprinting of false memories in a child or even in an adult." When asked as to the reliance he would place on statements made by a very young child, Dr. Salcedo responded he would be "very, very careful" and would be "extremely skeptical" of a young child's allegations of sexual abuse. In spite of these statements, Dr. Salcedo stated that the issue of culpability is up to the trier of fact.

         The judge ultimately adjudicated E.S. delinquent in violation of R.S. 14:42. The judge added that the forensic interview was "one of the better ones [he had] seen in [his] career" and that, after viewing N.H. on tape and in person, he was "utterly convinced of the truthfulness" of the allegations. Finding that E.S. was both thirteen and fourteen years old at the time of the offense, the judge ordered that E.S. be placed in secure care until the age of twenty-one and that he register as a sex offender after his release.

         After his adjudication, E.S. challenged the application of Ch. C. art. 897.1 - which mandates secure confinement until the age of twenty-one for juveniles adjudicated delinquent of first degree rape - to his disposition because, he argued, (1) he was not fourteen at the time of the offense, and (2) the State did not give him notice that they would seek disposition pursuant to Ch. C. art. 897.1. The district court declined to sentence E.S. under Ch. C. art. 897.1 even though the court found that E.S. was both thirteen and fourteen years old at the time of the sexual abuse. The court reasoned that the State was required to specify in its petition that Ch. C. art. 897.1 would apply to the adjudication. The State sought supervisory review with the court of appeal, and the court of appeal granted its writ, finding that the language of Ch. C. art. 897.1 is mandatory and thus applied to E.S. State in Interest of E.S., 17-1541 (La.App. 1 Cir. 11/7/17), 2017 WL 5172629, writ denied, State in Interest of E.S., 17-1904 (La. 12/5/17), 231 So.3d 19.[11]

         The court of appeal affirmed E.S.'s adjudication and disposition, holding (1) there was sufficient evidence to convict E.S. of first degree rape under the Jackson v. Virginia standard[12] and sufficient evidence to prove that he was fourteen years old at the time of the offense, (2) the exclusion of Dr. Salcedo's testimony was not manifestly erroneous and did not violate E.S.'s due process rights, and (3) mandatory lifetime sex offender registration pursuant to R.S. 15:542 was not excessive punishment imposed in violation of La. Const. art. I, § 20.[13] State in Interest of E. S., 18-0463 (La.App. 1 Cir. 9/21/18), 2018 WL 4523957. This Court granted E.S.'s application seeking review of the lower courts' rulings.


         We must first address numerous evidentiary issues presented by this matter before reaching E.S.'s argument that R.S. 15:542 violates the Eighth Amendment. As set forth below, we ultimately hold there was insufficient evidence to prove that E.S. was fourteen years old at the time of the offense, rendering R.S. 15:542 inapplicable and the Eighth Amendment question moot.[14]

         Sufficiency of the ...

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