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STATE OF LOUISIANA                                                               *   NO. 2011-KA-0193
VERSUS                                                                           *
                                                                                     COURT OF APPEAL
DANIRA HAWKINS                                                                   *
                                                                                     FOURTH CIRCUIT
                                                                                 *
                                                                                     STATE OF LOUISIANA
                                                                                 *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 486-525, SECTION “K”
Honorable Arthur Hunter, Judge
Judge Roland L. Belsome
(Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr.,
Judge Roland L. Belsome)
Leon A. Cannizzaro, Jr.
District Attorney
Brad Scott
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Justin Caine Harrell
H2 LAW, LLC
1100 Poydras Street
Suite 2900
New Orleans, LA 70163
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
NOVEMBER 16, 2011




On  May  28,  2009,  the  defendant  was  indicted  for  aggravated  rape.
Subsequent to his indictment, the defendant entered a plea of not guilty. On July
22, 2010, following a two day bench trial, defendant was found guilty of the lesser
included offense of sexual battery.   The defendant was sentenced to serve twenty-
five years at hard labor with credit for time served.  This appeal followed.
The defendant’s indictment and conviction resulted from the molestation
accusations of a six year-old female.   At the time of the incident, the child lived in
a home with her mother and younger sister.   The defendant, whose nickname was
Rocky, was a close friend of her mother’s and spent a substantial amount of time at
the home occasionally staying overnight.
The mother testified that if the defendant was at her home when she went to
work, the defendant would take the children to the baby-sitter or wherever they had
to go.   On the night of January 17, 2009, the mother returned home from work.
The defendant was at the home with her children.   She immediately noticed that
something was wrong with her daughter.   The daughter claimed she had a sore
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throat.    Noticing  sores  inside  the  child’s  mouth1,  the  mother  brought  her  to
Children’s  Hospital  for  treatment;  the  defendant  stayed  at  the  house.    They
returned from Children’s Hospital, and the defendant left shortly thereafter.   The
mother noticed that her daughter had an “attitude”, did not want to talk, and went
into her bedroom to lie down.
The following day, the mother described the child’s behavior as distant.
When she asked the child what was wrong, she responded, “mom, you going to get
mad.”   The mother assured her daughter that she would not be angry and that she
should tell her what was wrong.   She told her mother that Rocky “put his thing in
her mouth…”   Shortly thereafter, the mother took her daughter to the hospital and
the child told a physician what had happened.   The mother testified that after the
incident with Rocky, her daughter did not want to be alone or have any visitors at
the house and she became “real jittery”.
Detective Darlene Stokes with the New Orleans Police Department’s child
abuse unit was assigned to investigate the allegations of child molestation.   Upon
arriving at Children’s Hospital, Detective Stokes met with the mother and the
child.   The detective did not interview the child at that time.   Later, a forensic
examiner interviewed the child; the interview was audio and video recorded.
Detective Stokes was not allowed inside the room with child and the examiner, but
she was present in another room listening to the interview via an ear piece and
microphone which allowed her input as to questions that the examiner should ask.
After questioning the child, the trial court found her competent to testify at
trial.   On the stand she maintained that Rocky was the person that molested her.
She also testified that the defendant stayed in the home with her when her mother
1 This condition was not found to be related to the molestation.
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was not home.  She stated that the defendant put his “thing” in her mouth while she
lay on the couch in the front room of her home.   Her younger sister was also in the
home at the time.
At trial, the defendant denied that he molested the child or even stayed alone
with her.   The defendant denied speaking, meeting or interacting with the child at
any time.     He testified that he and the mother met after Hurricane Katrina and
were close friends but were not involved in a romantic relationship. He admitted
that he stayed overnight at the mother’s home approximately twice per week for
several years.   He said he would watch T.V. and “chill” with Peanut and Kevin
who also stayed overnight sometimes.  He claimed that sometime in late November
or early December  2008 he left the mother’s home after she accused him of
stealing money and he never returned.   He further testified that on the night of
January 16, 2009 he was picked up from his brother’s house in New Orleans east
by his friend, Dasha O’Connor, and they drove to her house in Chalmette where he
remained the entire weekend. The defendant denied putting his penis in the young
girl’s mouth, displaying his penis to her or touching her in an inappropriate way.
Dasha O’Connor testified that she and the defendant met in 2000 or 2001.
She stated that on the night of January  16, 2009 she drove to the defendant’s
brother’s house in New Orleans East, picked him up and returned to her home in
Violet, Louisiana.   The defendant remained at her home the entire weekend.   On
January 18, 2009, she drove defendant back to his brother’s home in New Orleans
East.  She admitted that she was not with the defendant prior to January 16, 2009.
James Hawkins, Jr., defendant’s brother, testified that defendant moved into
his home around November 2008.   He stated that the only time defendant did not
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spend the night at his house was when Dasha picked him up and drove him to her
house.
ERRORS PATENT:
A review for errors patent reveals an error in defendant’s sentence for sexual
battery.   A person convicted of sexual battery shall be imprisoned at hard labor for
not less than twenty-five years and not more than ninety-nine years with at least
twenty-five years of the sentence served without benefit of parole, probation or
suspension of sentence.  La. R.S. 14:43.1(C)(2).
In the instant case, the district court failed to deny defendant benefits on his
twenty-five year sentence.   Accordingly, defendant’s sentence is illegally lenient.
Generally,  in  instances  where  the  statutory  restrictions  were  not  recited  at
sentencing, they are contained in the sentence, whether or not imposed by the
sentencing court.  La. R.S. 15: 301.1 (A); State v. Hall, 2002-1098 (La. App. 4 Cir.
3/19/03), 843 So 2d 488.  However, La. R.S. 15:301.1 (A) and Hall do not apply in
this instance because the sentence is  “at least twenty-five years” which leaves
some discretion for the trial court to determine how many of the twenty-five years
should be served without benefits.     Therefore, the case must be remanded for
resentencing in compliance with La. R.S. 14:43.1.   This however, does not prevent
us from determining the merits of the defendant’s appeal.
ASSIGNMENT OF ERROR NUMBER 1:
First, the defendant asserts that the evidence was insufficient to support his
conviction.  His primary argument is that there was no evidence that identified him
as the perpetrator or any evidence that the alleged incident occurred.  After hearing
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the testimony and viewing the exhibits, the trial court found the defendant guilty of
the lesser included charge of sexual battery.2
When reviewing the sufficiency of the evidence to support a conviction, this
court is controlled by the standard set forth by the United States Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which
dictates that to affirm a conviction “the appellate court must determine that the
evidence, 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 had been
proved  beyond  a  reasonable  doubt.”  State  v.  Captville,                            448  So.2d  676,  678
(La.1984).   In the absence of internal contradiction or irreconcilable conflict with
the physical evidence, one witness's testimony, if believed by the trier of fact, is
sufficient to support a factual conclusion.   State v. Robinson, 2002-1869, p. 16 (La.
4/14/04), 874 So.2d 66, 79; State v. Jones, 97-2591, p. 7 (La. App. 4 Cir. 9/8/99),
744  So.2d                                                                               165,                    169.   Under  the  Jackson  standard,  the  rational  credibility
determinations of the trier of fact are not to be second guessed by a reviewing
court.   State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.   "[A] reviewing
court is not called upon to decide whether it believes the witnesses or whether the
2 The crime of sexual battery is defined, in pertinent part, as follows:
Sexual battery is the intentional engaging in any of the following acts with
another person, who is not the spouse of the offender, where the offender acts
without the consent of the victim, or where the other person has not yet attained
fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using
... any part of the body of the offender;  or
(2) The touching of the anus or genitals of the offender by the victim using
... any part of the body of the victim.
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conviction is contrary to the weight of the evidence."   State v. Smith, 600 So.2d
1319, 1324 (La.1992).
When a defendant disputes identity, the State must negate any reasonable
probability of misidentification.    State v. Smith,                                      430  So.2d  31,  45  (La.1983).
Furthermore, aliases, nicknames or descriptions of race, color or otherwise are not
only permissible but constitute competent, relevant and fully admissible evidence.
State v. Edwards, 97-1797 (La. 7/2/99), 750 So. 2d 893.
In the instant case, when the child was asked if she saw Rocky in court she
answered in the negative.   Even though the victim who was six at the time of the
incident did not recognize Rocky in court, the totality of the evidence negates any
reasonable probability of misidentification. The mother testified that the defendant
went by the nickname Rocky and that he was alone with the child on the night that
she accused him of placing his  “thing” in her mouth.    The defendant’s own
testimony established that he stayed overnight in the mother’s home twice per
week for several years.   The testimony supports a finding that the child was very
familiar with the defendant and knew that he went by the nickname of Rocky.
The child has never wavered on whether the incident occurred.   She has
consistently reported the events of that evening, to her mother, doctors and the
court.   Dr. Yameika Head, who performed a comprehensive physical examination
and oral medical history of  the child, testified that during the course of her
examination, the child revealed that on more than one occasion the defendant had
put his “thing” in her mouth and on her “thing” which made her feel embarrassed
and “not happy”.   From anatomical drawings, Dr. Head was able to discern that
what the child meant by “thing” was male and female genitalia.   Dr. Head further
testified  that  what  stood  out  to  her  during  her  examination  was  the  child’s
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statement that after these incidents of molestation she had to “wipe herself with a
tissue”.  We find the evidence was sufficient to support the trial court’s finding that
the defendant was guilty of sexual battery.
ASSIGNMENT OF ERROR NUMBER TWO:
Defendant  asserts  that  the  trial  court  erred  in  admitting  the
video/audio  taped  interview  of  the  victim  over  the  defense’s  objection
because  the  forensic  investigator,  Ahna  Patterson,  who  conducted  the
interview, did not testify at trial; relator argues that the inability to cross-
examine Ms. Patterson violated his due process confrontation rights.   He
argues that the testimony of Detective Stokes, the investigating detective,
did not constitute a “supervisor” within the meaning of La. R.S. 15:440.5.
There  are  two  relevant  statutes  to  be  considered  in  determining
whether a video/audio taped interview  of a victim can  be offered into
evidence, La. R.S. 15:440.4 and 15:440.5.3
3 La. R.S. 15:440.4 provides in pertinent part:
A. A videotape of a protected person may be offered in evidence for or against a
defendant.    To  render  such  a  videotape  competent  evidence,  it  must  be
satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected
person.
(2)   That no relative of the protected person was present in the room
where the recording was made.
(3)   That  such  recording  was  not  made  of  answers  to  interrogatories
calculated  to  lead  the  protected  person  to  make  any  particular
statement.
(4)   That the recording is accurate, has not been altered, and reflects what
the protected person has said.
(5)   That the taking of the protected person’s statement was supervised by
a physician, a social worker, a law enforcement officer, a licensed
psychologist,  a  licensed  professional  counselor,  or  an  authorized
representative  of  the  Department  of  Social  Services.                                (emphasis
added).
La. R.S. 15:440.5 provides in pertinent part:
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The trial court relied on State v. Roberts, 42,417 (La. App. 2 Cir. 9/19/07),
966 So. 2d 111, a case factually similar to the instant case, in determining that the
video/audio taped interview should be allowed in as evidence.   In Roberts, the
defendant was convicted of molestation of a juvenile.   The defense objected to the
recorded interview of the minor victim being admitted into evidence because the
interviewer was not available to be cross-examined; the defense argued that the
investigating detective did not qualify as a “supervisor” as required by La. R.S.
15:440.5  (A)(6).    In allowing the introduction of the recorded interview, the
Second Circuit dispensed with this assignment of error on procedural grounds.4   In
dicta, the court held that an investigating officer can serve as a supervisor within
the meaning of La. R.S. 15:440.5(A)(6).   The court also noted that the Louisiana
Supreme Court in State v. Kennedy, 2005-1981 (La. 5/22/07), 957 So. 2d 757,
concluded that where the declarant is present to appear for cross-examination, the
Confrontation Clause places no constraints at all on the use of the declarant’s prior
testimonial statements.   The defendant correctly states that the court in Roberts
noted that while the holding in Kennedy does not address whether the absence of
A. The videotape of an oral statement of the protected person made before the
proceeding begins may be admissible into evidence if:
(1)   No attorney for either party was present when the statement was
made;
(2)   The recording is both visual and oral and is recorded on film or
videotape or by other electronic means;
(3)   The recording is accurate, has not been altered and reflects what the
witness or victim said;
(4)   The statement was not made in response to questioning calculated to
lead the protected person to make a particular statement;
(5)   Every voice on the recording is identified;
(6)   The person conducting or supervising the interview of the protected
person in the recording is present at the proceeding and available to
testify or be cross-examined by either party;
(7)   The  defendant  or  the  attorney  for  the  defendant  is  afforded  an
opportunity to view the recording before it is offered into evidence;
and
(8)   The protected person is available to testify.   (emphasis added).
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the interviewer’s testimony adversely affects the defendant’s confrontation rights,
the  holding  illustrates  that  the  core  protection  in  the  Sixth  Amendment
Confrontation Clause is the right to confront the accuser.   The interviewer is not
the accuser; the victim is the accuser.
Additionally, the defendant argues that the holding in Roberts is not binding
on  this  court  and  that, because neither this  court  or the Supreme Court  has
addressed this issue, this court should ignore the holding in Roberts as wrong and
not apply it to the facts of the instant case.   The defendant fails to present any
factual or legal reasons to support his argument that the Roberts court’s analysis is
flawed.   Given the plain language of La. R.S. 15:440.4(A)(5) and 15:440.5(A)(6),5
it is clear that the legislature by using the words “by a law enforcement officer”
and “or supervising” intended to include Detective Stokes, the supervising law
enforcement officer as the witness testifying as to whether the process of the
recorded interview complied with the statutory requirements, thus allowing it to be
admitted  into  evidence.    The  testimony  and  subsequent  cross-examination  of
Detective Stokes at trial did not violate defendant’s confrontation rights.   We find
no error by the court in admitting the tape.
ASSIGNMENT OF ERROR NUMBER THREE:
In his third assignment of error, the defendant asserts that the trial court
erred in admitting the video/audio taped statement of the victim where the victim
could not provide any meaningful testimony and, thus, was “unavailable” to testify
or be cross-examined.   Specifically, defendant argues that A.C. did not remember
the taped interview, the medical examination with Dr. Head or when she told her
4 The court found that the basis for this objection was raised for the first time on appeal.
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mother  of  defendant’s  sexual  abuse.     As  such,  defendant  argues  that  his
constitutional right of confrontation was violated.
The United States Constitution provides that “In all criminal prosecutions,
the accused shall enjoy the right…to be confronted with the witnesses against
him….” U.S.C.A. Const. amend. 6.  The Louisiana Constitution similarly provides,
“An  accused  is  entitled  to  confront  and  cross-examine  the  witnesses  against
him….”  La. Const. Art. 1 Section 16.
In support of his claim that he was denied his constitutional right to
confront A.C., defendant cites State v. R.C., Jr., 494 So. 2d 1350 (La. App. 2 Cir.
1986), in which the five year old victim took the stand at trial and answered
general questions on cross-examination, but refused to talk about the alleged
sexual abuse, which the court found denied the defendant his constitutional right to
confront his accuser.  R.C. is distinguishable from the instant case.
In this case, the court found the child competent to testify.    On direct
examination she stated that she remembered the tape and that everything on the
tape was the truth.   While her testimony clearly demonstrates the challenge in
eliciting testimony from a six year old victim, she nevertheless clearly expressed
that it was the defendant that sexually abused her.   She testified that the defendant
was alone with her when her mother went to the store and that he sexually abused
her  on  the  front  couch.    She  was  adamant  that  neither  Peanut  nor  Kevin
inappropriately touched her and that the defendant did place his  “thing in her
mouth”.  When asked on cross-examination if her mother told her that someone put
their thing in her mouth, she answered “No”.   When defense counsel asked her if
5   Statutory construction should be based on the plain language of the statute.     See, Cleco
Evangeline LLC v. Louisiana Tax Commission, 2001-2162 (La. 4/3/07), 813 So. 2d 351.
10




she remembered telling Dr. Head that she denied telling her mother that anyone put
their thing in her mouth, she responded quickly and clearly, “I didn’t say no”.  The
record reflects that the juvenile victim was available and provided meaningful
answers to defense counsel’s questions on cross-examination regarding the facts
that gave rise to the offense of sexual battery.  For these reasons, we find there was
no violation of the defendant’s constitutional right to confront his accuser.
ASSIGNMENT OF ERROR NUMBER FOUR:
Defendant argues that the trial court erred by permitting rebuttal witnesses to
testify following the state’s failure to comply with the notice of alibi disclosure
requirements.
La. C.Cr. P. art. 727(A) provide that upon written demand of the district
attorney  stating  the  time,  date,  and  place  at  which  the  alleged  offense  was
committed, the defendant shall serve within ten days, or at such different time as
the court may direct, upon the district attorney a written notice of his intention to
offer a defense alibi.  La. C.Cr. P. art. 727(A).  Once the state receives the notice of
alibi the state, within ten days, but in no event less than ten days before the
defendant’s trial, unless the court otherwise directs, the district attorney shall serve
upon the defendant or his attorney a written notice stating the names and addresses
of the witnesses upon whom the state intends to rely to establish the defendant’s
presence at the scene of the alleged offense and any other witnesses to be relied on
to rebut the testimony of any of the defendant’s alibi witnesses.   La. C.Cr. P. art.
727(B).  Upon the failure of either party to comply with the requirements of article
727, the trial court may exclude the testimony of any undisclosed witness offered
by such party as to the defendant’s absence from or presence at the scene of the
alleged offense.  La. C.Cr. P.art. 727(D).
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In the instant case, defendant does not provide the names of the state’s
undisclosed witnesses. According to the trial transcript, there were no rebuttal
witnesses to the defendant’s alibi witnesses. There was no evidence presented by
the defendant to show an abuse of discretion by the trial court as set forth by this
assignment of error.
ASSIGNMENT OF ERROR NUMBER FIVE:
Lastly, the defendant asserts that the district court abused its discretion by
denying his motion for court funds to hire an expert in the area of child witness
testimony.  Specifically, defendant requested funds to hire an expert in the fields of
child  psychology,  cognitive  psychology  and/or  child  interrogation  techniques,
arguing that numerous studies in the field of child psychology has revealed that
young children can be susceptible to poorly phrased, repetitive, accusatory or
confusing questions with the potential for misidentification.
In the motion for appointment of an expert, the defendant merely states that
he hired private counsel with the assistance of his family and that he and his family
have exhausted their financial resources.  No other documentation or evidence was
produced to support defendant’s status as an indigent defendant.   On January 15,
2010, the district court denied the motion; no written judgment was rendered and
no transcript of an evidentiary hearing exists.   The record does not indicate that the
defendant objected to the denial, and he did not seek supervisory review of the
denial.  In general, expert fees may be provided to indigent defendants.  The record
falls short of establishing that this defendant was indigent.   Thus, we cannot find
an abuse of discretion for denying the motion to appoint an expert.
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In conclusion, given the record before this Court, we affirm the defendant’s
conviction,  vacate  the  defendant’s  sentence,  and  remand  for  resentencing  in
compliance with La. R.S. 14:43.1.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
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