Defendant, Christopher Ard, was charged by grand jury indictment with two counts of second degree rape, violations of LSA-R.S. 14:42.1(A)(1).
1
He entered a plea of not guilty. Defendant filed a motion in limine to prevent the admission of other crimes evidence, which the trial court denied. He applied for supervisory relief from the ruling, but his writ application was denied. See State v. Ard, 2020-0004 (La.App. 1 Cir. 5/12/20), 2020 WL 2461470, writ denied, 2020-00679 (La. 11/4/20), 303 So.3d 642.
2
Following a jury trial, defendant was found guilty as charged by unanimous verdicts on both counts. On each count, he was sentenced to thirty years imprisonment at hard labor, to run concurrently, with two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. Defendant now appeals, filing a counseled brief challenging the ruling on the motion in limine and the denial of a hearsay objection. He also files a pro se brief raising six assignments of error. For the following reasons, we affirm the convictions and sentences.
FACTS
In March of 2017, L.B.,
3
the victim in this case, was fifteen years old and living in Kentwood, Louisiana, with her mother and defendant, Christopher Ard, her mothers boyfriend. While staying with her aunt, T.B., L.B. disclosed that defendant raped her multiple times.
L.B. testified at trial that, while they were living together in Kentwood, defendant came into her room, pinned her down on her stomach, and anally raped her. L.B. stated that defendant then got up, went outside to smoke, and then came back and raped her again.
L.B. further testified that defendant threatened to kill her mother, and stated that he would kill LB. if she said anything about what happened. L.B. stated that she was afraid of defendant and what he might do because defendant previously told her that he was present when a woman named “Rodnesha” was murdered, and had demonstrated to L.B. how “Rodnesha” was crawling on her knees before she died.
At trial, the State introduced into evidence a DVD and transcript of L.B.s interview with the Child Advocacy Center (CAC), in which L.B. again described how defendant anally raped her multiple times and threatened to kill her mother if she screamed or if she told her mother what happened. L.B. also recounted in the interview that defendant said that one of his friends went to jail for murdering a young girl.
OTHER CRIMES EVIDENCE
In counseled assignment of error number 1, defendant contends the trial court erred in allowing the State to introduce other crimes evidence that was more prejudicial than probative and was unnecessary to prove an element of the offense. In his motion in limine, the defendant alleged the State would attempt to introduce evidence of his being implicated in a 2007 murder investigation as well as allegations he had an intimate relationship with the murder victim, Raneisha Hodges.
Evidence of other crimes, wrongs or acts committed by a defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. State v. Calloway, 2018-1396 (La.App. 1 Cir. 4/12/19), 276 So.3d 133, 147, writ denied, 2019-00869 (La. 1/20/21), 308 So.3d 1164. It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. Id. However, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. See LSA-C.E. art. 404(B)(1). Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendants defense. The State bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. Calloway, 276 So.3d at 147.
Other crimes evidence is admissible under the integral act exception (formerly known as the res gestae exception) when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. Calloway, 276 So.3d at 147. Thus, evidence of other crimes forms part of the res gestae when said crimes are related to and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to the other crime. The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, if a continuous chain of events is evident under the circumstances. Integral act evidence in Louisiana incorporates a rule of narrative completeness without which the States case would lose its narrative momentum and cohesiveness. Id; see also State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. A trial courts determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. Calloway, 276 So.3d at 148. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. A lapse in time goes to the weight of the evidence, rather than to its admissibility. State v. Reed, 2012-1788 (La.App. 1 Cir. 8/6/13), 2013 WL 4010279, *9, writ denied, 2013-2157 (La. 3/14/14), 134 So.3d 1194.
Louisiana Revised Statutes 14:42.1, in pertinent part, provides:
A. Second degree rape is rape committed when the anal ․ sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
․
C. For all purposes, “forcible rape” and “second degree rape” mean the offense defined by the provisions of this Section[.]
In a forcible rape, the victim is not required to actually resist. It is necessary only that the victim be prevented from resisting either from (1) force or (2) threats of physical violence that justify the victims belief that resistance will not prevent the rape. All that is required is a reasonable belief. State v. Mitchell, 2006-0417 (La.App. 1 Cir. 11/3/06), 2006 WL 3112984, *6, writ denied, 2006-2752 (La. 6/22/07), 959 So.2d 494. In the case of forcible rape, the test is subjective; did the victim reasonably believe that resistance on her part would not prevent the rape even though from the objective viewpoint of the juror, the defendant might lack the power of carrying out his threats. State v. Robinson, 2018-0150 (La.App. 1 Cir. 9/21/18), 2018 WL 4519972, *4 n.2, writ denied, 2018-1708 (La. 3/25/19), 267 So.3d 596, citing State v. Headley, 541 So.2d 396, 397 (La.App. 4 Cir 1989).
In 2007, the dead body of defendants sixteen-year-old girlfriend, Raneisha Hodges,
4
was discovered on the side of the road in Fluker, Louisiana. She had been shot four times. Defendant was initially suspected of the murder, but a subsequent investigation focused on Undre H. Martin as the gunman. In a recorded statement, Martin claimed he accidentally shot Hodges after confronting her concerning money she had stolen from him. According to Martin, he opened fire after Ard, who was present with Hodges during the confrontation, “aggressively grabbed on the door of [Martins] vehicle and threatened to mess [Martin] up.” Ard testified at trial that he was not present when Hodges was murdered. Martin was convicted of the murder. State v. Martin, 2010-0101 (La.App. 1 Cir. 9/10/10), 2010 WL 3527209, *1, writ denied, 2010-2315 (La. 3/4/11), 58 So.3d 469.
Prior to trial, defendant moved that any evidence of his involvement in the murder of, or his relationship with, Hodges be deemed inadmissible as overly prejudicial, unrelated to the present case, and confusing of the issues. See LSA-C.E. art. 403. At the hearing on the motion, defense counsel asked the trial court to redact the portion of the CAC tape where L.B. was asked “if she ever knew anything like this to have happened before,” and she replied “Well, [defendant] told me – he told my mama that one time he was accused of murder.” Defense counsel stated “and then goes on to say how he was falsely arrested, falsely accused, and the right person was then convicted.” Additionally, defense counsel asked the court to prohibit any mention that defendant had been accused of murder.
Under Prieur,5 the State was required to give defendant notice, both that evidence of other crimes would be offered against him, and upon which exception to the general exclusionary rule the State intended to rely. Additionally, the State had to prove by clear and convincing evidence that defendant committed the other crimes. State v. Millien, 2002-1006 (La.App. 1 Cir. 2/14/03), 845 So.2d 506, 514.
The State argued it had not complied with Prieur and had not given defendant notice because it was “not alleging [defendant] did any wrong act later․ or before.” The State set forth that the offenses included the element “when the victim is prevented from resisting the act by force or threat of physical violence[,]” and defendant was “grooming” L.B. before the rapes by telling her “I murdered my girlfriend.” The States theory was that defendant told L.B. about the prior murder “to threaten her.” The State alleged that “everybody in the community, as well as [L.B.], believed that [defendant] was involved in the murder of his girlfriend by shooting her and killing her because of a rape and her not subjecting herself to a rape. And he, at the present rape with this present victim, the 15-year-old, is dating her mother.” The State argued the challenged evidence was probative of the “victims subjective belief and the fact that if I dont undergo an anal rape by this man in my room, hes going to kill my mama just like he killed the 16-year-old girlfriend back in 07.”
The State presented testimony from Tangipahoa Parish Sheriffs Office Detective Beth Russell. Detective Russell investigated L.B.s complaint against defendant. Detective Russell testified that according L.B., defendant forced her to submit to the rapes with threats to kill her, her family, and her mother.
After speaking to L.B., Detective Russell made arrangements for her to be interviewed at the Child Advocacy Center. The murder of Hodges “[came] up” during that interview. L.B. indicated that defendant had spent approximately six months in jail “for what he had done with [Raneisha].” Defense counsel stated that on the CAC tape “[L.B.] actually acknowledges that [defendant] was wrongfully accused and that the right person was actually tried and convicted and is in jail.”
Detective Russell testified that M.B.,
6
L.B.s grandmother, reported that she saw defendant talking to L.B. and asked him what he had been telling her, and defendant stated he told L.B. that Hodges “was shot in the back,” and had been “crawling on the ground like grabbing.” Detective Russell indicated that defendant even got on the floor “and actually was showing how [Hodges] was crawling, trying to get away from them, and they had shot her again.”
The defense argued that bringing up defendants involvement in the murder was highly prejudicial and defeated defendants right to a fair and impartial trial.
The State argued the challenged evidence was not a prior wrong because defendant merely witnessed the murder. The State claimed, however, that defendant wanted L.B. to believe he committed the murder of a sixteen-year-old. The State argued because of the prior murder, it was L.B.s subjective belief that if she resisted, somebody was going to get killed.
The trial court denied the motion in limine. The court acknowledged the “time difference” between the date of the alleged rapes and the making of the statement by defendant concerning the earlier offense, but noted “youre talking about a child, and they cant unhear something.” The court found:
It is what the victim is believing; they are statements that [defendant has] made to the victim or where the victim could hear that. Then you couple what the allegations are at the time of the rape. And again, these are just allegations. But you couple that with that, that does go to that element where the victim reasonably believes that such resistance would not prevent the rape. And so acts of force or threats [of] physical violence under circumstances where the victim reasonably believes such resistance would not prevent the rape.
The issue before the trial court was not whether defendant was actually involved with the murder of Raneisha Hodges, but rather whether he either directly told L.B., or stated within her hearing, that he was involved with the murder. Testimony that defendant either directly told L.B., or stated within her hearing, that he was involved with the murder of Hodges was highly probative of whether or not L.B. subjectively believed the threats of defendant to kill her, her family, and her mother if she did not submit to the rapes. The alleged statements by defendant were part of “this crime,” rather than being “other crimes” evidence. They were admissible because they were “related and intertwined with the charged offense[s] to such an extent that the [S]tate could not have accurately presented its case without reference to [them].” See State v. Brewington, 601 So.2d 656,657 (La. 1992) (per curiam); Calloway, 276 So.3d at 148 (“[w]e find that the Facebook posts were introduced as evidence of the instant offense, not a separate other crime within the meaning of Article 404(B)․ We find that the described evidence constitutes an integral part of the transaction. [LSA-]C.E. art. 404(B)(1). The evidence forms an inseparable link in the continuous chain of events leading to defendants arrest and the discovery of the evidence that formed the basis for the instant conviction. It was used merely to complete the story of the crime on trial and allow the State to accurately present its case.”).
Defendants statements to L.B. provided narrative completeness to a continuous chain of events that began with defendant “grooming” the victim for rape years before the offenses. The State could not have logically presented its case against defendant without telling the jury why the victim reasonably believed her resistance would not prevent the rapes. Under the rule of narrative completeness incorporated in the res gestae doctrine “the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendants legal fault.” Taylor, 838 So.2d at 743 (quoting Old Chief v. U.S., 519 U.S. 172, 188, 117 S.Ct. 644, 654, 136 L.Ed.2d 574 (1997)). Thus, we reject defendants claim that the evidence was inadmissible.
We also reject the claim that reference to defendants involvement in the murder of Hodges was unnecessary to prove an element of the offense. The State was required to prove that L.B. was prevented from resisting the defendant raping her “by force or threats of physical violence under circumstances there the victim reasonably believe[d] that such resistance would not prevent the rape.” See LSA-R.S. 14:42.1(A)(1). The States theory was that L.B. was prevented from resisting the rapes by defendants threats of physical violence, which she believed because he had told her (and demonstrated) how Hodges, his sixteen-year-old girlfriend, was shot to death.
This assignment of error is without merit.
HEARSAY OBJECTION
In counseled assignment of error number 2, defendant contends the trial court erred in overruling his hearsay objection to M.B.s testimony that the victim knew about the murder of Raneisha Hodges because “[L.B.] told [M.B.] that [defendant] told her.”
Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801(C). Hearsay is inadmissible “except as otherwise provided by this Code or other legislation.” LSA-C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. However, when an extrajudicial declaration or statement is offered for a purpose other than to establish the truth of the assertion, its evidentiary value is not dependent upon the credibility of the out-of-court asserter and the declaration or statement falls outside the scope of the hearsay exclusionary rule. State v. Brown, 562 So.2d 868, 877 (La. 1990).
Louisiana Code of Evidence article 803, in pertinent part, provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
․
(3) Then existing mental, emotional, or physical condition. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarants then existing condition or his future action.7
Evidence to prove the declarants state of mind can be used to prove the declarants subsequent conduct. LSA-C.E. art. 803(3). State v. Ulfers, 2007-0832 (La.App. 1 Cir. 2/8/08), 2008 WL 441488, *20, writ denied, 2008-1100 (La. 1/16/09), 998 So.2d 90.
A state of mind declaration is relevant if it tends to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence. LSA-C.E. art. 401. Nevertheless, relevant declarations may be legally inadmissible if their probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misapplication by the jury. LSA-C.E. art. 403. Ulfers, 2008 WL 441488, at *20.
M.B. testified that she was the victims grandmother. She stated she lived with L.B.s mother, L.B., L.B.s sisters, and defendant in Loranger. The defense objected to hearsay when M.B. stated that while she was cooking, she thought she heard “[LB.] say something about [defendant] was involved․[.]” The court overruled the objection. Thereafter, M.B, testified that defendant had told her that he and “another guy” were involved in a murder of a “young girl” that defendant dated. M.B. also stated that L.B. knew about that incident. After the State asked how L.B. knew about the earlier incident, M.B. testified, “[L.B.] told me that [defendant] told her.” The defense objected to the testimony as “pure hearsay,” and the court overruled the objection.
The challenged out-of-court statement was offered to prove the truth of the matter asserted, i.e., defendant told L.B. about the murder of Hodges. Thus, the statement was hearsay. Further, the statement was not of L.B.s “then existing” fear of defendant due to the alleged disclosure. Thus, it fell outside the scope of LSA-C.E. art. 803(3).
Confrontation errors are subject to harmless error analysis. The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination was fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Factors to be considered by the reviewing court include “the importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case.” State v. Wille, 559 So.2d 1321, 1332 (La. 1990). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000); State v. Shoemaker, 2006-0505 (La.App. 1 Cir. 11/3/06), 2006 WL 3109423, *2, writ denied, 2006-2806 (La. 6/22/07), 959 So.2d 495.
In the instant case, admission of the hearsay evidence was harmless error. The challenged testimony was cumulative of much more detailed testimony from L.B. at trial that, on two occasions prior to the incidents, defendant told her he was present when someone killed Hodges. L.B. also testified that defendant demonstrated how Hodges had crawled on the ground.
This assignment of error is without merit.
DEFENDANTS PRO SE ASSIGNMENTS OF ERROR
Pro Se Assignment of Error No. 1
In pro se assignment of error number 1, defendant argues that the trial court failed to state any legal reasons for denying his motion for new trial and failed to articulate what standard it employed in evaluating the evidence.
Following the return of the verdicts, defendant filed motions for a new trial and for a post-verdict judgment of acquittal. The motion for new trial alleged:
1. The verdict is contrary to the law and the evidence, insofar as the offense did not support a verdict of guilty of forcible rape.
2. The [c]ourts ruling on defendants written motion and objection made during the proceedings establishes prejudicial error.
3. The ends of justice would be served by granting of a new trial, although defendant may not otherwise be entitled to a new trial as a matter of strict legal right.
The motion for post verdict judgment of acquittal alleged that, “the evidence, viewed in a light most favorable to the [S]tate, does not reasonably permit a finding of guilty.”
At the hearing on the post-trial motions, the defense argued there was more than ample evidence that established reasonable doubt as to the guilt of defendant. The defense cited the absence of forensic or “actual physical evidence.” Additionally, the defense claimed it had proven that L.B. made misstatements. The defense moved that the jury verdict be set aside based on the totality of the lack of evidence.
The claim that the trial court failed to state legal reasons for denying the motion for new trial is without support in the record. In denying the post-trial motions, the trial court stated:
Obviously[,] I sat through the entire trial. I found the complainant in this case to be extremely credible. And it wasnt just her testimony, it was also testimony of family members about her behavior. How she was before and after, doctors or psychologists, counselors that shed seen that came in and testified as well.
Additionally, the defense moved for new trial based upon “the totality of the lack of evidence.” Louisiana Code of Criminal Procedure art. 851(B)(1) provides, “[t]he court, on motion of the defendant, shall grant a new trial whenever any of the following occur: (1) The verdict is contrary to the law and the evidence.” The ruling of the trial court indicates it denied the motion for new trial because it found the defense had failed to satisfy LSA-C.Cr.P. art. 851(B)(1).
Pro se assignment of error number 1 is without merit.
Pro Se Assignment of Error No. 2
In pro se assignment of error number 2, defendant argues that the trial court failed to grant the motion for post-verdict judgment of acquittal where there was a lack of evidence to support the convictions for forcible rape. He cites the fact L.B. did not report the rape for six weeks and the lack of physical evidence presented at trial.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendants identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisianas circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; State v. Johnson, 2013-0372 (La.App. 1 Cir. 12/27/13), 2013 WL 6858334, *2, writ denied, 2014-0254 (La. 11/26/14), 152 So.3d 895.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Johnson, 2013 WL 6858334 at *3.
The State was required to prove beyond a reasonable doubt that defendant had sexual intercourse with L.B. and she was “prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.” LSA-R.S. 14:42.1(A)(1). Mitchell, 2006 WL 3112984 at *6. L.B. testified that defendant entered her bedroom and “got on top of [her] and raped [her].” She stated that defendant put his penis in her anus and covered her mouth during the rape. According to L.B., after the rape, defendant went outside, smoked a cigarette, and then raped her again. Defendant threatened to kill her if she said something. L.B. testified she did not scream during the rapes because defendant threatened to kill her mother. She further testified that prior to the rapes, defendant had told her he was present when “somebody killed Rodnesha.” The disclosure scared L.B. because she thought defendant had been involved in somebody dying.
T.B. testified that, on March 9, 2017, L.B. visited her and was talking back, arguing and fussing with her mother. This was a change in L.B.s demeanor. Thereafter, L.B. told T.B that L.B. had been molested and her anus had been penetrated. T.B. alerted the authorities, who advised her to take L.B. to Hood Memorial Hospital.
Shirley Sullivan testified she was a retired Hood Hospital Emergency Room nurse and treated L.B. when she came to the hospital. She was accepted as an expert in emergency room nursing. She reviewed the medical records of L.B.s visit to Hood Hospital on March 9, 2017. She remembered L.B.s visit to the hospital for treatment for rape and stated that L.B. and T.B. indicated the alleged rapes occurred six weeks prior to the hospital visit.
The defendant testified at trial and denied any wrongdoing.
Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree rape and the defendants identity as the perpetrator of two counts of that offense against L.B. The verdict returned indicates the jury found L.B.s testimony credible and rejected the defendants claim of innocence. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finders determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Johnson, 2013 WL 6858334 at *3; see also State v. El-Amin, 2011-0030 (La.App. 1 Cir. 6/10/11), 2011 WL 3570012, *7, writ denied, 2011-1532 (La. 2/17/12), 82 So.3d 281, cert. denied, 568 U. S. 835, 133 S.Ct. 128, 184 L.Ed.2d 61 (2012) (“[t]he jury also heard evidence of [the victims] delayed disclosure of the abuse. In deciding the case, the jury was required to make a credibility determination. The jury obviously found [the victim] to be credible and accepted her account of the incidents. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jurys determination of guilt.”).
Further, in reviewing the evidence, we cannot say that the factfinders determination was irrational under the facts and circumstances presented. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the factfinder. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
Pro se assignment of error number 2 is without merit.
Pro Se Assignment of Error No. 3
In pro se assignment of error number 3, defendant argues the law of the case doctrine must not be a reason to deny counseled assignment of error number 1 that the trial court erred in denying the defendants motion in limine.
This assignment of error has been fully considered hereinabove.
Pro se assignment of error number 3 is moot.
Pro Se Assignment of Error No. 4
In pro se assignment of error number 4, defendant argues that his trial counsel rendered ineffective assistance in failing to call forth witnesses whose testimony would have exonerated him.
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. McMillan, 2009-2094 (La.App. 1 Cir. 7/1/10), 43 So.3d 297, 302, writ denied, 2010-1779 (La. 2/4/11), 57 So.3d 309. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorneys performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. McMillan, 43 So.3d at 302. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for the counsels unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsels performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. McMillan, 43 So.3d at 302-03.
Defendant alleges his counsel was ineffective because he failed to call LB.s mother and father as witnesses. Allegations of ineffectiveness relating to the choice made by counsel to pursue one line of defense as opposed to another constitute an attack upon a strategy decision made by trial counsel. State v. Allen, 94-1941 (La.App. 1 Cir. 11/9/95), 664 So.2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So.2d 433. The investigation of strategy decisions requires an evidentiary hearing
8
and, therefore, cannot possibly be reviewed on appeal. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. The election to call or not call a particular witness is a matter of trial strategy and not, per se, evidence of ineffective counsel. State v. Folse, 623 So.2d 59, 71 (La.App. 1 Cir. 1993).
Pro se assignment of error number 4 is without merit.
Pro Se Assignment of Error No. 5
In pro se assignment of error number 5, defendant argues that the State improperly commented on defendants right to call witnesses and produce evidence and misled the jury to believe that defendant waived such rights by testifying on his own behalf.
Indirect references to the defendants failure to testify constitute reversible error only when the prosecutor intended to emphasize defendants failure to testify. Statements addressed to the defendants theory of defense, not his election to testify, reflect no intent on the part of the prosecution to emphasize the defendants failure to testify and do not fall within the LSA-C.Cr.P. art. 770(3) prohibition. State v. Hattaway, 28,060 (La.App. 2 Cir. 5/8/96), 674 So.2d 380, 393, writ denied, 96-1900 (La. 1/10/97), 685 So.2d 141.
During closing, the State argued:
Now, why dont I call mom or dad? Yeah, I explained to yall at the beginning. Yeah, I am so sorry I kept yall here for a whole day trying to choose you. Yes, I called a lot of witnesses because its my burden, right? Its my burden. But he waived that when he took the stand. If he wanted them here, he could have called them then. He called himself to the stand; he waived it, fweet (whistle sound). He could have called witnesses too.
Defendant testified at trial in this matter. Thus, it was impossible for the State to improperly reference his failure to testify. Further, the States reference to the fact that defendant could have called certain witnesses was a permissible reference to his theory of defense. In closing the defense argued:
But you know what were missing the most? Where was mom? Where was dad? If they were excluded because they were on the witness list, why didnt they testify. If they werent, why werent they sitting there burning a hole in the back of that mans head if they really believed, really believed. The people that would know the best, the people that would know if their child would make up a story and then would kind of dig in on it. They were the people that would know. Where are they? [The State] didnt bring them.
Pro se assignment of error number 5 is without merit.
Pro Se Assignment of Error No. 6
In pro se assignment of error number 6, defendant argues that the prosecutor erred in relating her own personal experiences and facts outside the record to the jury. He cites State v. Rochon, 98-717 (La App. 5 Cir. 3/10/99), 733 So.2d 624, 630, for the proposition that prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. He omits the next two sentences in the case, wherein the court explained, “[n]evertheless, a conviction is not reversed due to improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict[,]” and “much credit should be accorded to the good sense and fair mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” Id.
In the instant case, during closing argument, the State argued:
Ive got two girls, and I know we all have girls. Ive always taught my girls and I was always taught by my momma, and even my boys. And I tell my little boys you need to know this more than anybody. “When a girl says no, it means no.”
Although the referenced closing argument contained the personal experience of the prosecutor, we are not thoroughly convinced that the remarks influenced the jury and contributed to the verdict. This case rested upon the testimony and recorded statement of L.B., not the closing argument of the State. The verdict returned indicates the jury found L.B. credible and rejected defendants attempts to discredit her. Further, this was not a case involving a consent defense; defendant denied that the incident ever occurred. Thus, prejudice to defendant, if any, from the challenged argument was limited by its irrelevance. Additionally, the trial court instructed the jury, “[s]tatements and arguments made by the attorneys are not evidence[,]” and “[t]he opening statements and the closing arguments are not to be considered as evidence.”
This assignment of error is without merit.
CONCLUSION
Considering the foregoing, we affirm defendants convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.
FOOTNOTES
1
. Prior to amendment by 2020 La. Acts No. 32, § 1.
2
. Although a pretrial determination does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility of evidence unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. State v. Burgess, 2019-1603 (La.App. 1 Cir. 9/22/20), 315 So.3d 279, 282 n.1, writ denied, 2020-01189 (La. 2/17/21), 310 So.3d 1148.
3
. We reference the victim, a crime victim who at the time of the commission of the offense was a minor under eighteen years of age and a victim of sex offenses, only by her initials. To protect the identity of the victim, we also refer to her aunt only by her initials. See LSA-R.S. 46:1844(W).
4
. The victim of the murder is referenced as “Raneisha Hodges” in the motion in limine, as “Roneisha Hodges” in the transcript of the hearing on the motion, and as “Rodnesha” in the trial transcript.
5
. State v. Prieur, 277 So.2d 126 (La. 1973), abrogated in part, State v. Taylor, 2016-1124 (La. 12/1/16), 217 So.3d 283, 291 (“[w]hen seeking to introduce evidence pursuant to [LSA-C.E.] art. 404(B), the [S]tate need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong or act.”). (Emphasis in original).
6
. To protect the identity of the victim, we reference this witness only by her initials. See LSA-R.S. 46:1844(W).
7
. See also State v. Raymond, 258 La. 1, 15, 245 So.2d 335, 340, app dismd & cert. denied, Ramos v. Louisiana, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38 (1971) (“[t]he victims state of mind, of course, can be proved by circumstantial evidence, that is, by utterances from which the jury may infer the existence of fear or revulsion. When an out-of-court statement is offered to prove circumstantially the declarants state of mind, it is non-hearsay. It is admitted in evidence, not to prove the truth of the facts recited, but to prove that the utterance occurred as a basis for inference.”).
8
. Defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., in order to receive such a hearing.
McCLENDON, J.
Holdridge J. concurs