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Date: 08-04-2020

Case Style:

STATE OF LOUISIANA VERSUS JOHN ELMER

Case Number: 19-KA-478

Judge: STEPHEN J. WINDHORST

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Joel T. Chaisson, II
Louis G. Authement

Defendant's Attorney:

Call 918-582-6422 for free help finding a great criminal defense lawyer.

Description:














On February 2, 2018, a St. Charles Parish Grand Jury returned an eight-count
indictment charging defendant, J.E., with various sex offenses against J.H.
Defendant was charged with aggravated rape of a juvenile under thirteen years of
age in violation of La. R.S. 14:42 (count one); first degree rape of a juvenile under
thirteen years of age in violation of La. R.S. 14:42 (count two); molestation of a
juvenile under the age of thirteen in violation of La. R.S. 14:81.2 (counts three
through five); molestation of a juvenile over the age of thirteen but under seventeen
in violation of La. R.S. 14:81.2 (count six); sexual battery in violation of La. R.S.
14:43.1 (count seven); and oral sexual battery in violation of La. R.S. 14:43.3 (count
eight). On February 6, 2018, defendant pled not guilty at his arraignment.
On January 24, 2019, a twelve-person jury found defendant guilty as charged
on counts three through six. He was found not guilty on counts one, two, seven, and
eight. The record shows that defendant was convicted by a vote of eleven out of
twelve on counts three through five and unanimously convicted on count six.
Following the verdicts, defendant moved for a judgment notwithstanding the verdict,
which was denied.
On February 1, 2019, defendant filed a motion for new trial, a motion for postverdict judgment of acquittal and a notice of intent to appeal. On June 17, 2019, the
trial court denied defendant’s motions. Defendant was sentenced on count six to

1
Initials of the victim, defendant, and witnesses whose name can lead to the victim’s identity are utilized
pursuant to La. R.S. 46:1844 W(3). State v. Ross, 14-84 (La. App. 5 Cir. 10/15/14), 182 So.3d 983.
19-KA-478 2
twenty years in the Department of Corrections, without eligibility to have the
conviction set aside or dismissed under La. C.Cr.P. art. 893, and on counts three
through five to ninety-nine years each without the benefit of probation, parole, or
suspension of sentence. The trial judge ordered counts three, four, and five to run
concurrently with each other and consecutively to count six. After sentencing, the
trial court granted defendant’s appeal. This appeal followed.
FACTS
The victim in this case is defendant’s granddaughter, J.H., who was born on
July 9, 2003. At trial, J.H. testified that she was fifteen years old and in the tenth
grade. Growing up, she spent a lot of time with her grandparents, defendant (her
grandfather) and S.T (her grandmother). Her mom, S.E., was a single parent who
worked all the time and her grandparents helped in the summer and with school and
sports. She and her brother, P.H., would often stay over at her grandparents’ house
during the summer and school year, where she had her own room. She testified that
she was physically changing and beginning puberty when she was ten years old and
in the fifth grade at Lakewood Elementary, in St. Charles Parish. Defendant noticed
her development and would tell her she was beautiful and pretty. J.H. testified that
over the course of four years, defendant put his fingers inside of her vagina,
performed oral sex on her, placed his penis in her vaginal area, and ejaculated on
her.
J.H. testified that the first incident occurred in November of her fifth grade
year when she was ten years old and defendant took her to Alabama to do research
for a social studies project. They spent two nights in a motel room that had two
beds. The first night, she remembered waking up to something moving next to her
in her bed and saw it was defendant. He had his hand on her and she pushed
defendant away. He told her that “it was normal; that it was okay.” She pushed him
again and defendant told her that “everything would be okay.” Defendant then put
19-KA-478 3
his hands in her shorts and started touching her vagina. She testified that after that,
she “zoned out, and the only thing [she] saw was his face and the way he looked at
[her].” Defendant then put his mouth on her vagina. She testified that the touching
occurred for about 30 minutes. When he was done, he got out of her bed and went
back to his bed, and she immediately took a shower. She was not able to sleep the
rest of the night. The next day they worked on her project and defendant took her
shopping and bought her an expensive dress. When she arrived home, she did not
tell anyone about the incident because she did not know what to say to anyone, and
“saying it would have made it real. . . I just wanted to believe it was just all a dream;
that it wasn’t real.”
J.H. testified that the second incident occurred a few months later, when she
was still ten years old and she slept at defendant’s house. She was asleep in her
room when defendant walked in and got into her bed. She told him to “get out,” but
he did not leave. She was on her back and defendant pulled down her pants, put his
mouth on her vagina, and placed his fingers inside of her, which hurt. She testified
that she “froze” and “couldn’t move.” When defendant left, she took a shower
because she “felt gross.”
J.H. testified she could not remember specifically when the next incident
occurred because the incidents “started happening all the time . . . . It went from
about I’d get a week break . . . and then move on to once a week to every other day
to almost all the time, every time I was over there.” After the first two incidents,
defendant began to touch himself or have her touch him. Defendant also touched
her breasts in his office and on the sofa at his house. He would have her lie on her
side or back and place his penis in her vagina area. She testified that “he wouldn’t
put it in me; he would just like . . . thrust against me,” and he would ejaculate on her
inner thighs or back. J.H. denied that defendant ever put his penis in her mouth or
tried to kiss her. However, she testified that he did attempt to move her in a position
19-KA-478 4
so that her mouth was on his penis when he “would get like, I guess, upside down to
where his head was facing my feet, and his legs were by my head.” When asked if
defendant ever successfully penetrated her, J.H. replied, “Not that I know of” but
testified that the tip of his penis went into the opening of her vagina. She recalled
one time when she was lying on her back, defendant spread her legs apart and tried
to “put it in, but it wasn’t hard, so we couldn’t. And then he started doing what he’d
normally do to me, and then he came and then left.”
J.H. testified that the last time defendant touched her occurred a few weeks
before her hip surgery in May 2017, when she was thirteen years old. Defendant
came into her room at his house while she was asleep. She told him to get out but
he forced himself into her bed. Defendant pulled her pants down, put his fingers
inside her, moved down her body, and then put his mouth on her. Defendant thrusted
against her and tried to force himself into her vagina. She flinched and kicked and
then he left.
J.H. testified that defendant “put his mouth” on her vagina more than ten times
within each of the years she was eleven, twelve, and thirteen years old. The longest
amount of time between incidents occurred between the first and second incidents.
All of the incidents with defendant occurred in St. Charles Parish at her house and
defendant’s house and the one time in Alabama.
When asked if defendant ever tried to give her anything in exchange for
pleasing him, J.H. replied “He would buy me stuff, but if I wanted something, I
would have to give him something in return.” She testified that whenever she asked
him for something, he would put his hands in her pants and gesture that he needed
“this.” While the abuse was going on she would think “Why is this happening to
me?” J.H. testified that she did have “about three” conversations with defendant
when she was eleven, twelve, and thirteen and she threatened to tell someone. Every
19-KA-478 5
time she mentioned telling someone, defendant would say, “There’s no point,
because before the cops would get to me, I’d blow my brains out.”
S.E., the mother of J.H. and the daughter of defendant and S.T., testified that
after she divorced J.H. and P.H.’s father, she moved back in with defendant and S.T.
on Dixie Drive in Bayou Gauche. After living with her parents for approximately a
year, she and her children moved to Mimosa Park, then to Mark Drive in Des
Allemands, and eventually Mississippi,2
and she relied on family and friends to help
out with the children because she worked full-time. She particularly relied on her
parents when J.H. and P.H. started to get older and played sports. S.T. and defendant
would drive them to practice and help pay for “extras.”
S.E. testified that as J.H. grew older, defendant wanted to always be there for
J.H. but not P.H., which struck her “as a little odd.” If the children had sports events
at the same time, defendant would always go to see J.H. play. One time when she
came downstairs, she saw J.H., who was twelve or thirteen years old, sitting on
defendant’s lap and she made a joke out of the fact that J.H. was too old to sit on his
lap. Another time when she and the children slept over at her parents’ house, she
looked into the room where J.H. was asleep and saw defendant sleeping next to J.H.
in his underwear with his hand over her shoulder. She woke him up and asked him
what he was doing. Defendant was flustered and said he must have been sleep
walking. S.E. testified that if she objected to J.H. sleeping at her parents’ house,
both J.H. and defendant would “throw a fit.” Also, if she punished or disciplined
J.H., defendant would go behind her back to fix things. For instance, one time she
took away J.H.’s phone because she was not doing well in school, and defendant
gave J.H. a phone. Another time, J.H. wanted a Fitbit.
3
Although S.E. told J.H. she
could not have one, defendant bought her one anyway.

2
In July of 2017, S.E. testified that she moved to Mississippi in part because she felt her children did not
listen to her when she lived closer to her parents and she felt defendant had a lot to do with it.
3
An electronic device usually worn like a watch, which functions primarily as an activity or fitness tracker.
19-KA-478 6
S.E. testified that at the time of J.H.’s disclosure, J.H. was already in therapy
because of anger issues and trouble at school. Defendant paid for and drove J.H. to
therapy. S.E. testified that there was tension between her and J.H. because “she
didn’t feel like she needed to follow any rules,” except defendant’s rules. Around
the time when J.H. was going into the fifth grade, when she and the children lived
in Mimosa Park, J.H. “became defiant,” and when she asked her to do something,
“it was a fight.” S.E. testified that prior to J.H.’s disclosure, she told defendant that
she thought J.H. was being molested because she “had all the classic symptoms, that
I thought, of being molested . . . the change in her appearance, her anger, her
attitude.”
S.E. testified that defendant and J.H. were often alone together. When she
and the children lived on Mark Drive only two streets from her parents’ house,
defendant would often insist that J.H. sleep over because he did not want to pick her
up at her house to bring her to school the next day. Defendant and J.H. would also
go hunting alone. S.E. testified that defendant would often take J.H. shopping at
places like Victoria’s Secret and other boutiques, and they would go out to eat
together alone without including other family members. S.E. testified that she
trusted defendant to take care of J.H. the same as she would.
S.E. testified that she was aware of the trip J.H. went on with defendant to
Alabama in early November 2013, when J.H. was ten years old and in fifth grade.
When J.H. came home from the trip, she was wearing a tight, leopard print, V-neck
dress which S.E. thought was inappropriate for a ten-year-old girl to wear. The cost
of the dress was between sixty and seventy dollars. S.E. testified that the incident
“rubbed [her] the wrong way” because it was a lot of money to spend on a dress, and
the dress was inappropriate.
S.E. testified that on November 24, 2017, “Black Friday,” she went shopping
with J.H. and S.T. (J.H.’s grandmother). While shopping, J.H. had thrown a “huge
19-KA-478 7
fit” when they refused to buy her something that she wanted. When they arrived
home, she and S.T. questioned J.H. about what was going on with her. J.H. was
hesitant to say anything in front of S.T. and wanted her to leave the room. S.T. asked
J.H. if “Granddad” did something to her, and J.H. nodded affirmatively. S.E.
testified that she was shocked. S.T. immediately called defendant and asked, “What
did you do to your granddaughter?” She could not hear what defendant was saying,
but did hear S.T. say, “I guess I got my answer.” At this point, J.H. “shut down”
and would not talk about it anymore. S.E. testified that they did not go into any
details concerning what occurred, nor did she call the police. J.H. was embarrassed
and was “adamant that she was not saying anything else to anybody else.” S.E.
testified that she did not know what to do. When she later spoke to defendant, he
told her that child services would take J.H. and P.H. away, and she was afraid.
S.E. testified that the days between J.H.’s disclosure and her reporting the
abuse were “just a whirlwind . . . I had my dad calling and texting me, and it was
just really emotional. He’s threatening to kill himself, and that’s my dad.” At trial,
S.E. identified the text messages exchanged between herself and defendant from
November 24-30, 2017. Hours after J.H. disclosed she was abused by defendant,
S.E. texted defendant demanding money to take care of J.H. and P.H. in the “lifestyle
they were used to” and she wanted their inheritance. Defendant texted that S.T.
would be taking over the accounts and that he was “ready to die.” S.E. told defendant
that she forgave him for “my sake and the kids.” She texted him that she loved him
and wanted him to get help. Defendant responded to S.E. that she had no idea how
much that meant to him and that he was “so very sorry.” The two also discussed
finances and whether defendant would sign property over to her. S.E. told defendant
that she did not want to see him in jail or dead, but that he needed to get help.
Defendant texted he had already talked to S.T. about getting help and stated that he
had similar issues going back to his childhood. He told her that she was the first and
19-KA-478 8
only person he told about these issues in sixty years. At one point, defendant texted,
“I went more than 30 good years raising a daughter, with many young girls all around
often, and no desire to do anything, then something snapped.” Another time, he
stated, “I hate myself every second for putting everyone through this. All I know to
do is to try with all I have to help make life better for everyone I hurt.” The two also
discussed whether or not to report the incident. Defendant stated that if the incident
was reported, he would get life in prison, but whatever S.E. wanted for him, he
understood. He told her that he wished they could resolve everything without
“involving the State” and asked her to let him know how much time he had so he
could get his affairs in order.
On December 2, 2017, S.E. texted her friend, Jennifer Richard (J.H’s
godmother) informing her that defendant had touched J.H and talked to her about
reporting the abuse. Ms. Richard drove to Mississippi the next day to check on J.H.
Ms. Richard asked J.H. “yes or no” questions about the abuse and that J.H. disclosed
details confirming the abuse. When asked by Ms. Richard, J.H. responded
affirmatively that defendant put his penis in the opening of J.H.’s vagina, touched
her vagina with his fingers, ejaculated on her, touched her “butt” with his penis,
made her touch his penis with her hand, and touched her breasts. As part of her
employment duties, Ms. Richard, a mandatory reporter, disclosed the abuse to the
police on her way home. S.E. reported the abuse to the police the next day,
December 3, 2017.
A few weeks after defendant was arrested, S.E. testified that she filed a lawsuit
for monetary damages against defendant and her half-brother. She filed suit after
she became aware that defendant had transferred a large lump sum of money from
his checking account into another checking account owned by defendant and her
half-brother, and she was worried that J.H. would not receive anything. She also
19-KA-478 9
worried that defendant would leave the country. Defendant, in turn, sued J.H. for
wrongful incrimination. The suit against defendant was settled for $900,000.00.4

On Sunday, December 3, 2017, Detective Christopher Waguespack, a juvenile
detective with the St. Charles Parish Sheriff’s Office, was notified of a call regarding
the possible abuse of a juvenile, J.H, who was then fourteen years old. On December
8, 2017, Detective Waguespack met with J.H. and her mother, S.E. At the time, S.E.
was living in Mississippi with J.H. and P.H., her son. Detective Waguespack
testified that S.E. informed him that on November 24, 2017, “Black Friday,” J.H.
told her and S.T.5
that defendant had been molesting her for the past four years. S.E.
provided Detective Waguespack with the text messages between her and defendant.
Detective Waguespack spoke to J.H. alone. He testified that J.H. was shy and
it appeared that she did not want to talk to him or be there. When J.H. spoke about
the allegations her mood completely changed, she became visibly upset and started
to cry. J.H. informed him that defendant first abused her in Alabama when she was
ten years old, and the abuse lasted until she moved to Mississippi earlier in 2017,
around her fourteenth birthday. She told him that the first time occurred in Alabama
when she stayed in a motel alone with defendant. Defendant put his hand under her
clothing and penetrated her with his fingers. She told him that the abuse occurred
continuously, every day or every other day, and became worse over the next four
years. J.H. stated that defendant had digitally penetrated her with his fingers,
ejaculated on her, made her ejaculate him using her hand, performed oral sex on her,
and touched her on the breasts, “butt,” and vagina.6
J.H. denied that defendant

4 S.E.’s half-brother testified that almost one million dollars was seized from a joint bank account he owned
with defendant, although the money only belonged to defendant. He testified defendant talked about
leaving the country in November before J.H.’s disclosure.
5 Defendant and S.T. were married over thirty years. S.T. filed for divorce a few weeks after J.H.’s
disclosure, which was granted by the time trial occurred.
6 The same day, Det. Waguespack testified he observed the forensic interview between J.H and Lieutenant
Renee Kinler, which was consistent with her initial disclosure but more detailed regarding defendant
performing oral sex on her. He testified that generally, female sex abuse victims usually feel uncomfortable
speaking with males about sex acts and tend to hold back.
19-KA-478 10
penetrated her with his penis, but stated that defendant did attempt to penetrate her
with his penis at his house in Bayou Gauche during the last incident. She was able
to push him away. If she wanted to go shopping or go to the mall with her friends,
defendant would make her do something for the money. J.H. also stated that
defendant threatened many times to kill himself if anyone ever found out, and she
never told anyone what was happening because she loved defendant and did not want
him to kill himself.
Detective Waguespack testified that based on the information provided to
him, J.H. was molested continuously between her tenth and fourteenth birthdays,
and the abuse became more intense when she was approximately twelve and a half.
J.H. only provided him with time frames of the incidents of abuse, rather than
specific dates, which he confirmed was consistent in his experience with other
juvenile sex abuse victims. A physical examination was not performed of J.H. since
it had been approximately five or six months since the last incident.
Detective Waguespack testified he also interviewed Ms. Richard and S.T.,
both of whom provided information consistent with the information he received
from J.H and S.E. During the interviews, family members indicated that they feared
defendant would take his own life or flee the country after learning they had reported
the abuse. On December 13, 2017, Detective Waguespack secured an arrest warrant
for defendant who turned himself in approximately two weeks later.
Detective Waguespack testified that in March 2018, he took a second recorded
statement from J.H., who was fourteen years old at that time. J.H. told him that she
was concerned that she was not a virgin anymore because defendant had rubbed his
penis on her and she was having problems sleeping at night.
At trial, P.H. (J.H.’s brother) testified that he was thirteen years old and in
seventh grade. He testified that he observed specific instances where defendant
touched J.H. One day when he was in fifth grade and approximately ten or eleven
19-KA-478 11
years old, he got off the school bus at defendant’s house, and upon looking through
the window, he saw defendant sitting on the couch with J.H., touching her “boobs.”
He heard J.H. tell defendant to get off of her. A week later he walked in on defendant
touching J.H. again “[i]n the chest area.” He yelled and cursed defendant and J.H.
ran upstairs. Defendant told him not to tell anyone or he would hurt him. During
the spring of his fifth-grade year, he heard defendant and J.H. arguing upstairs. When
he went upstairs, he saw defendant lying on top of J.H., who was wearing a bathing
suit. Defendant was fully clothed. J.H. ran downstairs and he told defendant that he
would call the police if it happened again. Defendant responded that he would hurt
him or kill himself. Another time he heard J.H. and defendant arguing behind closed
doors and J.H. was telling defendant not to touch her. P.H. testified that defendant
would hit him in the head, punch him, or slap him when he observed any abuse. He
admitted that he only disclosed what he observed between defendant and J.H. after
an argument with his mother, S.E.
S.T. (J.H.’s grandmother) testified that J.H. and P.H. lived with her and
defendant for several years, and they brought the children to and from school and to
practices because S.E. worked. After they moved out, she and defendant continued
to bring the children to and from school and to practices and they paid for all of the
sports expenses. S.T. testified that defendant would bring the children to school in
the morning and would usually take J.H. to volleyball after school. She testified that
they saw the children every day. S.T. testified that after the Alabama trip, J.H. and
defendant’s relationship “started to get a little, like strange” and they spent more
time together. She testified that defendant only wanted to take J.H. to practice.
DISCUSSION
In his second pro se assignment of error, defendant argues that the evidence
was insufficient to support his convictions of molestation of a juvenile. When the
issues on appeal relate to both the sufficiency of the evidence and one or more trial
19-KA-478 12
errors, the reviewing court should first determine the sufficiency of the evidence by
considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.
1992). The reason for reviewing sufficiency of evidence first is that the accused
may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct.
970, 67 L.Ed.2d 30 (1981), if a reasonable trier of fact, viewing the evidence in the
light most favorable to the prosecution, could not reasonably conclude that all of the
elements of the offense have been proven beyond a reasonable doubt. Therefore,
consideration of sufficiency of evidence precedes consideration of other assignments
of error which, if meritorious, result in vacating a conviction due to trial errors, and
remand for possible retrial.
When, however, a claim of insufficiency of evidence is found to have merit,
it results in a reversal due to a failure to prove a charge beyond a reasonable doubt,
to which jeopardy attaches and cannot be retried. Thus, sufficiency of evidence
analysis also precedes consideration of whether a verdict must be vacated and
remanded under Ramos v. Louisiana, 590 U.S. --, 140 S.C. 1390, 206 L.Ed.2d 583
(2020), 2020 WL 1906545. Therefore, for the reasons stated herein, this Court will
address defendant’s sufficiency of evidence claim as to counts three through six,
despite that defendant’s convictions and sentences must be vacated and remanded
for a new trial pursuant to Ramos, supra, as to counts three through five.
Defendant contends the testimony presented at trial failed to include any
evidence to support the element of “the use or influence by virtue of a position of
control or supervision.” He argues that proving the crime of molestation of a
juvenile requires more than “simply having a position of supervision or control; the
offender must actually use the influence gained by that position in order to overbear
the will of the victim and accomplish the act complained of.” He claims that because
the State failed to prove this essential element, a responsive verdict of indecent
behavior with a juvenile is more appropriate. Defendant also asserts that the State
19-KA-478 13
failed to present any evidence to support a finding that he used force, violence,
duress, psychological intimidation, or the threat of great bodily harm.
The constitutional standard for testing the sufficiency of evidence requires
that the evidence, direct or circumstantial, or a mixture of both, viewed in the light
most favorable to the prosecution, was sufficient to convince a rational trier of fact
that all of the elements of the crime have been proven beyond a reasonable doubt, in
accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
The rule as to circumstantial evidence is that “assuming every fact to be
proved that the evidence tends to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test
from the Jackson standard, but rather provides a helpful basis for determining the
existence of reasonable doubt. State v. Anderson, 10-779 (La. App. 5 Cir. 03/27/12),
91 So.3d 1080, 1085; State v. Wooten, 99-181 (La. App. 5 Cir. 06/01/99), 738 So.2d
672, 675, writ denied, 99-2057 (La. 01/14/00), 753 So.2d 208. All evidence, both
direct and circumstantial, must be sufficient to support the conclusion that the
defendant is guilty beyond a reasonable doubt. Id.
Defendant was indicted with three counts of molestation of a juvenile under
the age of thirteen, and one count of molestation of a juvenile over the age of thirteen
but under seventeen. The State alleged in each of the four counts that defendant used
“force, violence, duress, menace, psychological intimidation, threat of great bodily
harm, or by the use of influence by virtue of defendant’s care, custody, control and
supervision of the juvenile.” La. R.S. 14:81.2 provides, in pertinent part:
A. (1) Molestation of a juvenile is the commission by anyone over the
age of seventeen of any lewd or lascivious act upon the person or in
the presence of any child under the age of seventeen, where there is
an age difference of greater than two years between the two persons,
with the intention of arousing or gratifying the sexual desires of
either person, by the use of force, violence, duress, menace,
psychological intimidation, threat of great bodily harm, or by the use
19-KA-478 14
of influence by virtue of a position of control or supervision over the
juvenile. Lack of knowledge of the juvenile’s age shall not be a
defense.
* * *
B. (1) * * *
(2) Whoever commits the crime of molestation of a juvenile, when
the victim is thirteen years of age or older but has not yet attained
the age of seventeen, and when the offender has control or
supervision over the juvenile, shall be fined not more than ten
thousand dollars, or imprisoned, with or without hard labor, for not
less than five nor more than twenty years, or both. The defendant
shall not be eligible to have his conviction set aside or his
prosecution dismissed in accordance with Code of Criminal
Procedure Article 893.
* * *
D. (1) Whoever commits the crime of molestation of a juvenile when
the victim is under the age of thirteen years shall be imprisoned at
hard labor for not less than twenty-five years nor more than ninetynine years. At least twenty-five years of the sentence imposed shall
be served without benefit of probation, parole, or suspension of
sentence.
Defendant was found guilty on counts three through five of molestation of a
juvenile under the age of thirteen. In those counts, the State had to prove that J.H.
was under the age of thirteen at the time of the offenses, and provide evidence to
meet the general definition of molestation of a juvenile under La. R.S. 14:81.2 A(1)
and D(1). As to count six, the State had to prove J.H.’s age, the general definition
of molestation of a juvenile and that defendant committed the molestation while
having supervision or control under La. R.S. 14:81.2 A(1) and B(2).7

The jurisprudence has interpreted the “supervision and control” element of
molestation of a juvenile to be satisfied by someone who has emotional control over
the victim, as well as by someone who is a live-in boyfriend, non-custodial parent,

7 The jury verdict form as to count six generically refers to molestation of a juvenile and does not include
the additional element of control or supervision. However, the element of control or supervision was
included as an alternative in count six of the indictment. Further, during voir dire, the State stated that it
had to prove “that element of intimidation or force or a threat and that person being in a supervisory role,”
and on “that last count of molestation, the sentence would be 5 to 20 years.” The State referenced the
supervision and control element as well as the penalty-enhanced charge. During its closing, the State
argued that defendant had supervision and control of J.H. Thus, based on a review of the record, the jury
convicted defendant of the more serious control and supervision offense and the evidence was clearly
sufficient. See State v. Johnson, 42,323 (La. App. 2 Cir. 08/15/07), 962 So.2d 1126, 1133-34.
19-KA-478 15
babysitter, relative, friend, a pastor, or neighbor. State v. Davis, 47,599 (La. App. 2
Cir. 01/16/13), 108 So.3d 833, 841, writ denied, 13-381 (La. 09/20/13), 123 So.3d
163; State v. Ellis, 38,740 (La. App. 2 Cir. 08/18/04), 880 So.2d 214, 219. Louisiana
courts consider the following factors when making a determination as to whether a
defendant used influence by virtue of his position of supervision or control over the
victim: (1) the amount of time the defendant spent alone with the victim; (2) the
nature of the relationship between the victim and the defendant; (3) the defendant’s
age; and (4) the defendant’s authority to discipline. State v. Dale, 50, 195 (La. App.
2 Cir. 11/18/15), 180 So.3d 528, 535, writ denied, 15-2291 (La. 04/04/16), 190 So.3d
1203. The harsher penalty provision for molestation of a juvenile where the offender
has control or supervision over a juvenile exists because an offender who has control
or supervision over a juvenile is in a position of trust. Id.; State v. Moses, 615 So.2d
1030 (La. App. 1 Cir. 1993), writ denied, 624 So.2d 1223 (La. 1993).
The State presented sufficient evidence on each of the four counts that
defendant used his position of control and supervision over J.H. to continually abuse
her. The evidence establishes that defendant, age seventy at the time of trial, was
J.H.’s biological grandfather. S.E., J.H.’s mother, routinely utilized both defendant
and S.T. to watch and supervise J.H. and P.H. because she was a single mother who
worked full time. As J.H.’s grandfather, defendant was in a position of trust and he
acted as J.H.’s father-figure. There was sufficient testimony concerning the amount
of time J.H. spent under defendant’s supervision alone, including a weekend trip to
Alabama where the first incident of abuse occurred. Defendant would buy J.H.
clothing, take her out to eat, and drive her to sports events, therapy sessions, and
school. Defendant ignored other family members, including P.H., so that he could
spend time alone with J.H. Additionally, defendant thwarted S.E.’s attempts to
parent or discipline J.H. by either giving her what she wanted or returning items to
J.H. that her mother had taken away. Defendant also threatened to kill himself if
19-KA-478 16
J.H. or P.H. told anyone about the abuse. S.E. testified she moved to Mississippi in
part because she felt she was losing control over J.H., due to defendant’s influence.
Based on the evidence, we find that the State proved that defendant committed the
offenses by virtue of his position of control or supervision over J.H. We further find
that all elements necessary to support defendant’s convictions of molestation of a
juvenile were proven by the State.8

We further find defendant’s argument that the evidence presented was only
sufficient to convict him of the lesser charge of indecent behavior of a juvenile is
without merit. La. C.Cr.P. art. 814, which lists responsive verdicts authorized by the
legislature, does not list either molestation of a juvenile or indecent behavior with a
juvenile. However, La. C.Cr.P. art. 815 allows the inclusion of lesser-included
grades of offenses even when not listed in La. C.Cr.P. art. 814. Indecent behavior
with a juvenile is a responsive verdict to molestation of a juvenile. See State v.
Busby, 94-1354 (La. App. 3 Cir. 04/05/95), 653 So.2d 140, 147, writ denied, 95-
1157 (La. 09/29/95), 660 So.2d 854. The record shows that a jury charge conference
was held, the responsive verdicts were discussed for each charge, and defendant did
not object to the exclusion of the responsive verdict of indecent behavior with a
juvenile under thirteen. An irregularity or error cannot be availed of after a verdict
unless it was objected to at the time of occurrence. La. C.Cr.P. art. 841.
Furthermore, we note that it was defense counsel who moved to exclude the
responsive verdicts for counts three through six. Thus, defendant waived the right
to assert this as error.
Defendant also challenges the credibility of J.H and P.H.’s accusations of
abuse because they only disclosed the abuse after arguments with their mother, S.E.

8 Even though defendant only challenges one particular element, a review of the record under State v.
Raymo, 419 So.2d 858, 861 (La. 1982), shows that the State presented sufficient evidence to establish the
remaining essential statutory elements of molestation of a juvenile, including those counts during the
commission of which J.H. was under the age of thirteen.
19-KA-478 17
He also alleges that the text messages exchanged between him and S.E. following
J.H’s disclosure further undermines J.H’s accusations of abuse because S.E.
demanded money from him instead of immediately notifying the police. He further
challenges J.H.’s disclosure to Ms. Richard, who he argues violated every ethical
code concerning her profession by asking J.H. “yes or no” questions concerning the
abuse.
The credibility of a witness, including the victim, is within the sound
discretion of the trier of fact, who may accept or reject, in whole or in part, the
testimony of any witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 08/25/15), 173
So.3d 1227, 1233. In the absence of internal contradiction or irreconcilable conflicts
with physical evidence, the testimony of one witness, if believed by the trier of fact,
is sufficient to support a conviction. State v. Hernandez, 14-863 (La. App. 5 Cir.
09/23/15), 177 So.3d 342, 351, writ denied, 15-2111 (La. 12/05/16), 210 So.3d 810.
In sex offense cases, the testimony of the victim alone can be sufficient to establish
the elements of a sexual offense, even when the State does not introduce medical,
scientific, or physical evidence to prove the commission of the offense. Id. It is the
role of the fact-finder to weigh the respective credibility of the witnesses; thus, the
appellate court should not second-guess the credibility determinations of the trier of
fact beyond the sufficiency evaluations under the Jackson standard of review. State
v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13), 128 So.3d 515, 525, writ denied, 13-
2793 (La. 05/16/14), 139 So.3d 1024. Even where there is conflicting testimony
about factual matters, the resolution of which depends upon a determination of the
credibility of the witnesses, the matter is one of the weight of the evidence, not its
sufficiency. State v. Vincent, 07-239 (La. App. 5 Cir. 12/27/07), 978 So.2d 967,
973.
The jury heard and considered (1) that J.H. was in therapy for anger issues
and problems at school; (2) the circumstances that prompted J.H.’s disclosure; (3)
19-KA-478 18
P.H.’s testimony regarding incidents he observed between defendant and J.H., and
that he only divulged what he saw after an argument with his mom; and (4) the text
messages exchanged between S.E. and defendant immediately after the disclosure,
including the fact that S.E. demanded money. In finding defendant guilty of the four
counts of molestation of a juvenile, the jury weighed the credibility of the witnesses,
which this Court will not second guess on appeal. The jury also heard testimony
from Ms. Richard. We find defendant’s argument concerning Ms. Richard has no
bearing on the weight of the evidence presented by the State against defendant. See
Vincent, supra. Accordingly, this assignment of error is without merit.
In his first pro se assignment of error and supplemental assignment of error,
based on the Unites States Supreme Court’s ruling in Ramos, defendant argues that
his convictions for molestation of a juvenile were unconstitutionally obtained by the
return of non-unanimous verdicts. Defendant argues that he was convicted by a nonunanimous jury on three of his four convictions and that this Court should review
the non-unanimous jury verdicts as an error patent.9 He further argues that a
conviction based on an insufficient number of jurors should constitute both a
structural error and an error patent.
The record reflects that on January 24, 2019, defendant was convicted by a
vote of eleven out of twelve on counts three through five and unanimously convicted
on count six.
10
He was found not guilty on counts one, two, seven, and eight.
On February 1, 2019, defendant filed a motion for new trial and a motion for
post-verdict judgment of acquittal, arguing in both motions that his constitutional
rights were violated when the jury returned a non-unanimous verdict. The trial court
denied the motions.

9 This Court notified the Attorney General’s Office of the constitutional challenge raised in this appeal, to
which no response has been provided.
10 Defendant does not have standing to challenge the constitutionality of his verdict on count six because
he was convicted by a unanimous jury. See State v. Saulny, 16-734 (La. App. 5 Cir. 05/17/17), 220 So.3d
871, 879, writ denied, 17-1032 (La. 04/16/18), 240 So.3d 923.
19-KA-478 19
Since the punishment for the offenses in counts three through five is
necessarily confinement at hard labor, a jury of twelve persons was required. See
La. Const. Art. I, §17; La. C.Cr.P. art. 782; La. R.S. 14:81.2D(1).11
Non-unanimous
verdicts were previously allowed under La. Const. Art. I, §17 and La. C.Cr.P. art.
782, and the circumstances of this case. The constitutionality of the statutes was
previously addressed by many courts, all of which rejected the argument. See
Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v.
Bertrand, 08-2215, 08-2311 (La. 03/17/09), 6 So.3d 738, 742-43; State v. Brooks,
12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 12-2478 (La.
04/19/13), 111 So.3d 1030.
However, recently the United States Supreme Court in Ramos found that the
Sixth Amendment right to a jury trial, as incorporated against the States by the
Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a
serious offense. The Court held:
There can be no question either that the Sixth
Amendment’s unanimity requirement applies to state and
federal criminal trials equally. This Court has long
explained that the Sixth Amendment right to a jury trial is
“fundamental to the American scheme of justice” and
incorporated against the States under the Fourteenth
Amendment. This Court has long explained, too, that
incorporated provisions of the Bill of Rights bear the same
content when asserted against States as they do when
asserted against the federal government. So if the Sixth
Amendment’s right to a jury trial requires a unanimous
verdict to support a conviction in federal court, it requires
no less in state court. (Footnotes omitted.)
Id. at 1397.
For purposes of the Sixth Amendment, federal law defines petty offenses as
offenses subject to imprisonment of six months or less, and serious offenses as

11 Both La. Const. Art. I, § 17 and La. C.Cr.P. art. 782(A) provide, in pertinent part, that a case for an
offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard
labor, shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict, and that
a case for an offense committed on or after January 1, 2019, in which the punishment is necessarily
confinement at hard labor, shall be tried before a jury of twelve persons, all of whom must concur to render
a verdict.
19-KA-478 20
offenses subject to imprisonment over six months. The Sixth Amendment’s right to
a jury trial only attaches to serious offenses. See generally Lewis v. United States,
518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996); Hill v. Louisiana,
2013 WL 486691 (E.D. La. 2013).
Based on Ramos and the fact that the instant case is on direct appeal,12 we find
that since the verdicts resulting from defendant’s jury trial on counts three through
five were not unanimous for these “serious offenses” in compliance with Ramos,
defendant’s convictions and sentences on counts three through five are vacated.
Because we find that the State introduced evidence sufficient to sustain convictions
on counts three through five, and that the assignment of error claiming insufficiency
of evidence on those counts to be without merit, the matter is remanded to the trial
court for further proceedings consistent with this opinion.13

Further, because defendant’s convictions and sentences on counts three
through five have been vacated, we pretermit any discussion of defendant’s
remaining assignment of error.14
ERRORS PATENT DISCUSSION
The record was reviewed for errors patent, according to the mandates of La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
556 So.2d 175 (La. App. 5 Cir. 1990). The following error patent requires
correction.

12 See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004), observing
that “[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule applies to all
criminal cases still pending on direct review,” citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,
93 L.Ed.2d 649 (1987) (“a new rule for the conduct of criminal prosecutions is to be applied retroactively to
all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the
new rule constitutes a ‘clear break’ with the past.”).
13 See State v. Myles, 19-0965 (La. App. 4 Cir. 04/29/20), --- So.3d ----, 2020 WL 2069885.
14 In his remaining counseled assignment of error, defendant argues that the trial court imposed an
excessive sentence on count six when it ordered count six to run consecutively to his sentences on counts
three through five.
19-KA-478 21
Defendant received an incomplete notice of the time limitation for seeking
post-conviction relief. If a trial court fails to advise, or provides an incomplete notice
pursuant to La. C.Cr.P. art. 930.8, this Court may correct said error by informing the
defendant of the applicable delay period for post-conviction relief by means of its
opinion. See State v. Oliver, 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978,
writ denied, 14-2693 (La. 10/9/15), 178 So.3d 1001. Thus, defendant is hereby
informed that no application for post-conviction relief, including applications which
seek an out-of-time appeal, shall be considered if it is filed more than two years after
the judgment of conviction and sentence have become final under the provisions of
La. C.Cr.P. arts. 914 or 922.

Outcome: For the reasons stated herein, defendant’s conviction and sentence on count
six is affirmed; defendant’s convictions and sentences on counts three through five
are vacated, and the matter is remanded to the trial court for further proceedings
consistent with this opinion.

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