State v. Free
| Decision Date | 21 September 1994 |
| Docket Number | No. 26267-KA,26267-KA |
| Court | Court of Appeal of Louisiana — District of US |
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v.
Samuel FREE
Second Circuit.
Rehearing Denied Oct. 20, 1994.
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Donnie L. Ellerman, Winnsboro, for appellant.
Richard P. Ieyoub, Atty. Gen., Baton Rouge, William R. Coenon, Dist. Atty., Johnny R. Booth, Asst. Dist. Atty., Winnsboro, for appellee.
Before MARVIN, C.J., BROWN, J., and PRICE, J. Pro Tem.
PRICE, Judge Pro Tem.
Following a jury trial, defendant Samuel Free was convicted of six counts of indecent behavior with a juvenile in violation of LSA-R.S. 14:81, and sentenced to six years at hard labor on each count with the sentences to run concurrently. Defendant appeals these convictions and sentences, urging thirteen assignments of error. Finding all assignments without merit, we affirm.
FACTS
C.F., a young girl who was 8 or 9 years old at the time of these offenses, is the daughter of a foster sister of Free. On Friday, February 14, 1992, Free telephoned C.F.'s mother and asked her stop by his office. Free told C.F.'s mother that his son and C.F. were mad at him, and that they had made up a story about Free molesting C.F. Because plans had already been made for C.F. to spend the weekend with out-of-town friends, and C.F. already had a doctor's appointment scheduled for the following Monday morning, C.F.'s mother did not ask C.F. about the allegations at that time.
On Monday morning, C.F.'s mother asked her about the allegations. C.F. replied that "Uncle Buddy" (Free) had taken naked pictures of her and fondled her genitals with his fingers. Because C.F. was crying as she related this information, her mother could discern no details. C.F.'s mother contacted Dr. Ford, a child counselor in Winnsboro. After interviewing C.F., Dr. Ford concluded the child's story was truthful. During the scheduled doctor's appointment, C.F. was examined for evidence of penetration. After the appointment, C.F.'s mother contacted the Franklin Parish Sheriff's Department.
Later that same afternoon, Free delivered several photographs to Eugene Parker, the Franklin Parish sheriff. Free presented this collection of photographs as representative of the type of photos described by C.F.
C.F. was interviewed on Wednesday, February 19, 1992, by Deputy Rhonda Magee. During this interview, C.F. disclosed that Free had taken pictures of her in various states of undress, that he had touched her genitals on several occasions, and that she had touched his genitals. C.F. also told Deputy Magee that Free had another 9-year-old girl, J.J., take a picture of C.F. and Free with their pants pulled down, and that Free exposed both girls to magazines with
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photos of naked women. These incidents allegedly occurred at Free's residence, a building or office behind Free's residence, and two different offices in Winnsboro used in Free's appraisal business. J.J.'s statements to Deputy Magee in a separate interview corroborated those of C.F.Following a trial on the merits in which the jury heard evidence of prior crimes approved at a Prieur hearing, Free was convicted on all six counts. After a presentence investigation, Free was sentenced to six years at hard labor on each count, with the sentences to run concurrently.
Free urges thirteen assignments of error, each of which we discuss below.
Error No. 1: Evidence of Prior Crimes
Free first assigns as error the trial court's decision to allow testimony regarding prior crimes and offenses. Four days before the jury trial was scheduled to begin, the state filed a Prieur notice of intent to use evidence of other crimes and conduct to show knowledge, system, motive, plan, intent, identity and scheme. Free asserts the trial court erred in allowing the testimony of T.L. regarding prior similar criminal conduct as well as testimony of conduct involving B.W., who was not available to testify. T.L. is the 17-year-old biological daughter of Free's sister. The child had been adopted by another family in the local area who were also friends with Free.
T.L. testified that when she was between the ages of 9 and 11, Free touched her genitals on one occasion as well as took photographs of her and her friend, B.W., who is the same age as T.L. She also testified that Free gave the girls a copy of "Playboy" magazine to look at, and that she saw Free take photos of B.W. in various stages of undress.
For evidence of other crimes to be admissible, the state must comply with the notice requirements and limiting instructions set out in Prieur, prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant, demonstrate that the other acts satisfy one of the requirements listed in LSA-C.E. Art. 404 B(1), and finally, show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, 625 So.2d 146 (La.1993); State v. Prieur, 277 So.2d 126 (La.1973).
Generally, evidence of other sex crimes committed by the defendant against a similarly situated victim falls into one of the 404 B exceptions. Particularly, where the testimony shows the factual circumstances of the prior acts and the crime charged are virtually identical, the evidence of other crimes is corroborative of the victims' testimony and establishes a system or plan. State v. Tolliver, 621 So.2d 17 (La.App. 2d Cir.1993).
Upon request by defense counsel, the court instructed the jury as to the limited purpose of T.L.'s testimony. Free does not contend the state failed to meet its burden of proving the other crimes by clear and convincing evidence.
However, Free contends the state did not give notice of intent to use evidence of other crimes within a reasonable time. The record reveals the state filed the notice and delivered it to Free's counsel on the same day the witness came forward. Free's counsel interviewed the witness, T.L., on the following day (Friday). The trial began on Monday.
Under the circumstances, the state gave pre-trial notice which was as reasonable as practicable. There was no prejudicial surprise because Free's counsel had an opportunity to interview the witness before trial.
Free also argues he was denied the right to confront and cross-examine B.W. or to determine if the allegations made by T.L. about conduct between Free and B.W. were truthful. This contention has no merit. T.L. testified only to what Free had either done to her or in her presence; she did not testify as to what might have occurred to B.W. out of her observation or knowledge.
The evidence of prior, similar (virtually identical) sex crimes, as presented by the testimony of T.L., is clearly admissible evidence. See Jackson, supra, expressly holding that evidence of prior similar sex crimes is admissible, but evidence of dissimilar
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criminal behavior or sex crimes is not admissible. In Jackson, the defendant was convicted of molestation of juveniles, of which indecent behavior with juveniles is a lesser included offense. State v. LeBlanc, 506 So.2d 1197 (La.1987).Error No. 2: Motion for Continuance
Free urges the trial court erred in not granting his motion for a continuance after the court ruled that the prior similar criminal conduct testimony of T.L. was...
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