WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF ST. TAMMANY
CRICHTON, J. [*]
granted the writ in this matter primarily to address the
constitutionality of mandatory lifetime sex offender
registration under R.S. 15:542 as applied to a
juvenile. 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 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
AND PROCEDURAL HISTORY
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
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. 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."
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]
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.
DR. HEBERT: Okay.
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.
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." Dr. Hebert asked N.H. if she was telling
the truth or pretending, and N.H. answered "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.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.
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. 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.
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."
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
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." 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." When asked what, if anything, her mother
told her to say at the adjudication hearing, she replied
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.
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.
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 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.
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.
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.
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
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 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. 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.
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
of the ...