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STATE OF LOUISIANA                                                           *   NO. 2006-KA-1090
VERSUS                                                                       *   COURT OF APPEAL
DANNY GALINDO                                                                *   FOURTH CIRCUIT
                                                                             *   STATE OF LOUISIANA
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 455-170, SECTION “F”
HONORABLE DENNIS J. WALDRON, JUDGE
JAMES F. MCKAY III
JUDGE
(Court composed of Judge James F. McKay III, Judge Leon A. Cannizzaro Jr.,
Judge Roland L. Belsome)
BELSOME, J., DISSENTS WITH REASONS
EDDIE J. JORDAN, JR.
DISTRICT ATTORNEY OF ORLEANS PARISH
DAVID S. PIPES
ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH
New Orleans, Louisiana   70112-1221
Counsel for Plaintiff/Appellee
LAURIE A. WHITE
AUTUMN TOWN
LAURIE WHITE & ASSOCIATES, LLC
New Orleans, Louisiana   70130
-and-
GARY BIZAL
PIERCE & BIZAL
New Orleans, Louisiana   70113
Counsel for Defendant/Appellant
AFFIRMED




STATEMENT OF THE CASE
On January 10, 2005, the State filed a bill of information charging the
defendant-appellant Danny Galindo with one count of violating La. R.S. 14: 43.1
relative to sexual battery.  The defendant entered a not guilty plea at his
arraignment on January 19, 2005.  On April 19, 2005, the defendant was tried and
convicted by a six-person jury.  On April 22, 2005, new counsel enrolled, and on
May 6, 2005 a motion for new trial was filed.  The trial court denied the motion on
May 19th.  After hearing testimony on August 19, 2005, the court sentenced the
defendant to serve six years at hard labor and ordered that he comply with the
sexual offender registration law.  The defendant subsequently filed a motion to
reconsider sentence which was denied by the trial court on August 26, 2005.  On
the same date, the court amended the defendant’s sentence to direct that it be
served without the benefit of probation, parole, or suspension of sentence.
Although the trial court had granted the defendant’s motion for an appeal on
August 26, 2005, the intervention of Hurricane Katrina resulted in a lack of notice
for the appeal.  Therefore, on April 17, 2006, counsel filed a motion requesting
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notice of appeal and the setting of a new return date.  The appeal was subsequently
lodged on August 17, 2006.  This appeal follows.
STATEMENT OF THE FACTS
M.M. and E.M., eight-year old girls, were friends from school who often
played together.  E.M., the victim, lived with her grandparents, her mother, and her
stepfather in a residence which was next door to the defendant’s home.  The two
girls often played at E.M.'s house and sometimes they played inside the
defendant’s home.  On one occasion, M.M. saw the defendant touch E.M.’s
posterior.  M.M. subsequently told her mother, G.K., about the incident.  Because
E.M.’s mother, E.H., was out of town, G.K. did not tell E.H. about what she was
told until a few days later.  According to her trial testimony, G.K. told E.H. that
M.M. said that, while the girls were playing at the defendant’s home, E.M. took off
her pants and was jumping on the bed; when she lay down, the defendant lifted up
her legs and “blew a raspberry on her butt.”
After G.K. had informed E.H. of what M.M. said, E.H. asked her daughter
E.M. about whether the defendant had ever done anything to her that was not right.
E.M. began to cry and told her mother a story which differed from that related to
G.K. by M.M.  The victim said that the defendant pulled down her underwear and
touched her “private area.”  When her mother asked how many times this occurred,
E.M. said that it was more times than she could count.
E.H. testified at trial that she and her husband, E.M.’s stepfather, had been
good friends with the defendant and his wife.   The couples socialized at gatherings,
attended movies together, and also E.H. and Stacy Galindo, the defendant’s wife,
loaned each other clothes to wear.  The Galindos owned a dog, which E.M. loved,
and the defendant would invite E.M. to go walk the dog almost daily; sometimes
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Stacy asked her to go also.  E.M. liked to go to the defendant’s house to play with
the dog and occasionally went there with her friend M.M.  E.H. testified that she
always assumed that her daughter was playing with the defendant’s dog when she
was at his house and was unaware that she was playing with the defendant.
However, she knew that E.M. would often go to the defendant’s house to have
Kool-Aid after walking the dog.  E.H. denied that her daughter ever spent more
than fifteen minutes at the defendant’s house at a time, stating that she tried not to
let her stay very long so that the defendant and his wife would not be bothered.
After E.H. learned of the sexual abuse, she contacted the police and spoke
with Detective Coulon.  The detective arranged for E.M. to be examined at
Children’s Hospital.  Dr. Ellie Wetsman, who was qualified as an expert in
pediatric medicine  including the treatment of pediatric sexual abuse, testified at
trial that she examined the victim which examination included obtaining a history.
E.M. told the doctor that she had been touched in the genitals, specifically the
vagina, and possibly the anus, by “Danny” who used his hand and his mouth.  The
physical examination was negative for any evidence of injury, which was
consistent with the history given by the victim.
Detective Kurt Coulon testified at trial that he was assigned to the Child
Abuse Unit on July 31, 2004 and investigated an alleged molestation on Homedale
Street.  He interviewed the victim and her mother.  The victim cried while he was
asking her what happened.  Detective Coulon arranged for E.M. to go to the Child
Advocacy Center to document her statement by video and audiotape; a forensic
interviewer took the statement with no one else present in the room.  After the
statement was taken, Detective Coulon obtained an arrest warrant for the
defendant.  The videotape of E.M.’s statement was played for the jury.
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On cross-examination, Detective Coulon was asked if there was ever any
statement from the victim or her mother about the defendant, prior to the
videotaped statement, about the defendant blowing a “raspberry” on the victim’s
anus.  The detective stated that there was not, nor was there any reference to this
on the tape.  Instead, the victim on the tape merely said that the defendant walked
into the room, pulled down her pants and touched her vagina.  However, at the
time Detective Coulon prepared the arrest warrant, he included a separate charge of
oral sexual battery based upon the defendant having placed his mouth on the
victim’s anus.  In further testimony, the detective agreed that, according to the
victim’s videotaped statement, it was M.M. who was running around the
defendant’s house naked, not the victim.
E.M. testified that she lived next door to the defendant.  She liked to play
with his dog and take him for walks.  Sometimes she would walk the dog alone,
sometimes with Stacy, the defendant’s wife, or with the defendant.  She also would
go into the defendant’s house, sometimes alone and sometimes with her friend
M.M.  She testified that the defendant touched her “private” in his bedroom.  She
said that it happened more than once.  He used his hand to touch her.  When it
happened she was lying down on the bed on her back.  During cross-examination,
E.M. said that the defendant always touched her in the same way and that he never
did anything more than touch her and walk away.  She also said that the defendant
“blew a raspberry on her butt”, and then she admitted that she told the assistant
district attorneys the day before trial that she made that up.  She said that she had
gotten confused.  She further testified that the night before trial she spoke with her
mother about her testimony and her mother told her to tell the court that the
defendant did blow a “raspberry” on her behind.
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In further cross-examination, E.M. said she usually stayed at the defendant’s
house for around an hour.  She said sometimes her mother came to get her and
other times the defendant and/or his wife would tell her that it was time for her to
go home.  E.M. said she continued to go to the defendant’s home after he touched
her and that she was not afraid to go there.   Also, E.M. said she looked forward to
being allowed to spend the night at the defendant’s house with his niece Casey, but
she had not done so yet.
On redirect, E.M. testified that the defendant would pull her pants down
before touching her.
The defense called several witnesses at trial.  R.M., the victim’s grandfather,
was asked whether he had desired to purchase the defendant’s house for his
daughter and her family, which he denied.  He was also asked if he knew another
neighbor, Shelley Ruiz, and what conversations they had about the allegation
against the defendant.  R.M. stated that he told Ms. Ruiz what the defendant had
done and how upset the family was.  R.M. testified that he may have made
comments that he wished the Galindos would move.
C.M., the victim’s grandmother, testified that the victim was not allowed to
go outside without an adult present.  She said that, as far as she knew, the victim
never went to the defendant’s house by herself.  She stated, however, that she
worked each day until 5:00 p.m.  C.M. explained that, when E.M. was not in
school, she might have been with C.M.’s younger daughter, who was sixteen, or at
her other grandmother’s day care center until her mother or stepfather picked her
up after work.  C.M. further explained that E.M. went to an after school program at
her elementary school, and that she was with her aunt or other grandmother on
days when there was no school.  According to C.M., the victim was not home on
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school day afternoons until 4:30 or 5:00, although sometimes E.M.’s mother got
off work earlier and picked E.M. up from school.  In further testimony, C.M. stated
that she relayed the allegations against the defendant to her neighbor Shelley Ruiz
and Ms. Ruiz’s girlfriend Kim.  Both women were supportive.
Shelley Ruiz testified that she knew the defendant, the victim, and the
victim’s grandparents.  She testified that at approximately 10:15 p.m. one
Thursday, the victim’s grandparents walked over to her and her partner and told
them that they had reason to believe that the defendant had molested E.M.  They
related that M.M.’s mother had told E.H. about an incident which her daughter had
told to her.  E.H. then questioned E.M. about it, and E.M. told her that the
defendant blew “raspberries” on her and had her disrobe.  Ms. Ruiz explained that
it was her practice to write down everything, and therefore she had taken notes
after her conversation with E.M.’s grandparents.  Included in her notes was a
statement from R.M. that he would buy the defendant’s house for his daughter and
E.M. to live in.  Ms. Ruiz asked him why he would want to have E.M. live in a
house where she was molested.  A few days later, C.M. came over to Ms. Ruiz and
accused her of having betrayed them and of being a molester like the defendant.
C.M. stated that she wished she could press charges against Ms. Ruiz.  Ms. Ruiz
did not know why C.M. accused her, but was worried and upset because she was a
teacher.  Ms. Ruiz on cross-examination testified that she tried to make a complaint
to the police about the threats from C.M.   The police refused to file a report.
In additional testimony Ms. Ruiz stated that, after the defendant was
arrested, E.M. several times tried to go to his house when the defendant’s sister
Michelle was working in the garden.
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Stephanie Burlette, the defendant’s sister-in-law, testified that she had been
at the defendant’s house on occasion when E.M. was there.  She said she saw E.M.
come over unescorted and that while she was there playing with Ms. Burlette’s
daughter Casey, none of E.M.’s relatives came to check on her.  One time E.M.
stayed for two or three hours playing with Casey.  On another day E.M. and Casey
were in a bedroom coloring when Ms. Burlette heard E.M. say that the bedroom
was supposed to be her room and that the bedroom where the defendant and his
wife stayed was going to be her parents’ room.  On another day, there was a party
at the house for the defendant’s birthday.   Ms. Burlette noticed that E.M.’s
stepfather and grandparents were all there with E.M.  However, at some point
during the party they left, and E.M. stayed behind.  E.M.’s mother was at work that
day.
On cross-examination, Ms. Burlette, whose sister was married to the
defendant, stated that her daughter Casey often spent time at the defendant’s house
with him.
The defendant’s father, Leonidas Galindo, testified that E.M.’s grandparents
were angry when he told them how much the defendant had paid for the house.
They said that they had been trying to buy the house for a long time, but that the
owner wanted too much money.
The defendant’s wife Stacey Galindo testified at some length.  She stated
that E.M., her mother, and her stepfather moved in next door in February 2004.
Stacey got to know E.M. because of the Galindo’s dog Frodo.  E.M. loved the dog
and wanted to walk him.  Stacy and the defendant, who had become friendly with
the family, did not mind E.M. going along when the dog was walked.  Stacey
testified that sometimes she walked the dog and other times the defendant did.  She
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further testified that E.M. often just showed up at their home and came inside.  One
time, Stacey was in the shower but had left the back door unlocked; E.M. walked
in on her saying that she had come to walk the dog.  Many times E.M. stayed at the
Galindo’s house for two or three hours, playing and eating snacks which Stacey
bought specifically for her.  E.M.’s family members did not come and check on her
when she was at the Galindo’s home; instead the Galindos would have to send
E.M. home.  During the school year, E.M. came over to the house late in the day,
after 5:00 p.m., when Stacey was home from work.  After the allegations were
made against the defendant, they moved away because the victim’s stepfather and
grandfather made threats and followed her when she went to work or walked the
dog.  By then, she was pregnant, and at the time of trial had given birth to a child.
On cross-examination, Stacey Galindo explained that E.M. often played in
an extra bedroom which Stacey had decorated all in pink for her niece Casey.
E.M. often played alone, for example by having pretend tea parties.  She never
played with the defendant according to Stacey.  Prior to the allegations against her
husband, Stacey had no problems with E.M.’s family; they were wonderful
neighbors, and the couples were friendly.   She further testified that the defendant
was a chef and his schedule varied.  Sometimes he worked from 5:30 a.m. until
2:00 or 2:30 p.m., and other times he worked from around 2:00 p.m. until 11:00
p.m.
The final defense witness was the defendant.  He testified that E.M. came
over to his house by herself frequently.   He was generally not alone with her
during the school year because he had to be at work at 2:30 p.m. and left home at
approximately 1:30 p.m., although occasionally he had off days and would walk
the dog with her and allow her tocome in the house to play by herself.  When she
8




was there, he watched television or played video games.  He recalled one incident
where he blew a raspberry on her stomach.  His wife was home and began tickling
him; she told E.M. and M.M. how ticklish he was and the girls started tickling him
also.  The defendant began tickling them back, and at some point, he picked up
E.M. and blew a “raspberry” on her stomach.  He stated that he had blown
raspberries on other children, such as his niece Casey and his cousins.  He said it
had nothing to do with sex.  In further testimony, the defendant denied that E.M.
was ever naked in his house or that he ever touched her vagina.  He denied ever
engaging in any inappropriate behavior with her.
On cross-examination, the defendant stated that he initiated E.M. walking
the dog but that she initiated coming over to the house.  He stated that she often
would simply come over, knock on the door, and he would allow her inside.  Then
she would “just go play.”  If she became a nuisance, he and his wife would simply
tell her to go home.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error the appellant avers that the evidence was
insufficient to support his conviction for sexual battery.    La. R.S. 14:43.1 provides
in pertinent part that:
Sexual battery is the intentional engaging in any of the following acts
with another person where the offender acts without the consent of the
victim, or where the act is consensual but 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 instrumentality or any part of the body of the
offender.
The appellant’s argument is not as to the proof of the particular elements of the
offense, but rather that the victim’s testimony was not credible because she, as well
9




as M.M., gave an inconsistent story, there was a total lack of physical evidence,
and the defense put forth evidence to explain why the victim’s family had a
motivation to fabricate the allegations against him.
The test for determining the sufficiency of evidence to support a conviction
was set forth in State v. Armstead, 2002-1030, pp. 5-6 (La. App. 4 Cir. 11/6/02),
832 So.2d 389, 393:
In evaluating whether evidence is constitutionally sufficient to support
a conviction, an appellate court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational
trier  of  fact  could  have  found  the  defendant  guilty  beyond  a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d  560  (1979); State v. Green,  588 So.2d  757  (La.App.  4
Cir.1991). However, the reviewing court may not disregard this duty
simply because the record contains evidence that tends to support each
fact necessary to constitute the crime. State v. Mussall,  523 So.2d
1305 [sic] La.1988). The reviewing court is not permitted to consider
just the evidence most favorable to the prosecution but must consider
the record as a whole since that is what a rational trier of fact would
do. If rational triers of fact could disagree as to the interpretation of
the  evidence,  the  rational  trier's  view  of  all  the  evidence  most
favorable  to  the  prosecution  must  be  adopted.  The  fact  finder's
discretion  will  be  impinged  upon  only  to  the  extent  necessary  to
guarantee the fundamental protection of due process of law. Mussall,
523 So.2d 1305; Green, 588 So.2d 757. "[A] reviewing court is not
called upon to decide whether it believes the witnesses or whether the
conviction is contrary to the weight of the evidence." State v. Smith,
600 So.2d 1319, 1324 (La.1992).
A factfinder’s credibility decision should not be disturbed unless it is clearly
contrary to the evidence.  State v. Huckabay, 2000-1082 (La. App. 4 Cir 2/6/02),
809 So.2d 1093; State v. Harris, 99-3147 (La. App. 4 Cir. 5/31/00), 765 So.2d 432.
In the instant case, the victim testified to the actions of the defendant,
specifically that he pulled down her pants and touched her vagina on more than
one occasion.  E.H., the victim’s mother, testified that the victim became very
upset and cried when she first asked her about possible inappropriate actions by the
defendant.  The testimony of G.K. indicated that M.M. was a witness to a least one
10




incident, and M.M. stated that she had told her mother the truth.1  Although the
appellant contends that there was no physical evidence to support the victim’s
testimony, the lack of any does not contradict the victim’s account.  As Dr.
Wetsman explained, the lack of physical evidence of molestation was consistent
with the history given by the victim.
The appellant also contends that there was conflicting testimony on when the
incidents could have occurred.  He notes the testimony about the victim’s school
and vacation schedule and the defendant’s work schedule.  However, the defendant
and his wife both testified that the defendant’s work schedule did not prevent him
from being home alone in the afternoon on his off-days.  Furthermore, the
defendant admitted that he was alone in his house with the victim on occasion.
As to the appellant’s contention that the victim’s grandparents wanted to
purchase the house which the defendant owned, there is little support for this in the
record.  While the defendant’s father testified that the victim’s grandfather was
upset that he was unable to purchase the house, there is nothing to indicate that he
influenced the victim into making false allegations against the defendant.  In fact,
both the victim’s family members and the defendant and his wife indicated that the
two families were very friendly and socialized without any problems.  Stacey
Galindo testified specifically that the victim’s family were wonderful neighbors,
negating any inference that there was animosity about the Galindo’s purchase of
the house.
The strongest support for the appellant’s argument that the evidence was
insufficient was the admissions of M.M. and E.M. that, on the day before the trial,
1 M.M.’s testimony at trial was very vague as to any details, and she indicated that she both saw an incident and that
E.M. told her about it.  However, when asked why she told her mother abut the defendant, she said it was because
she did not want her friend to “get hurt.”
11




they told the prosecutors that the defendant had never blown a ”raspberry” on
E.M.’s “butt”.  The girls then indicated at trial that he had.  However, the girls
were questioned at length about the discrepancies in their statements to the
prosecutors and their trial testimony.  The jury was able to observe the demeanor
of the girls, as well as view the videotaped statement that E.M. had given, and
apparently found her credible.  Contrary to the appellant’s argument, the victim’s
testimony was not so suspect as to render it invalid.  Thus, viewing the evidence in
the light most favorable to the prosecution, the jury could legitimately find beyond
a reasonable doubt that the appellant committed the crime of sexual battery.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the appellant argues that the bill of
information was fatally defective because it did not set forth the elements of the
crime, specifically the age of the victim and the alleged acts with a citation to the
subsection of La. R.S. 14:43.1.
In State v. Johnson, 2002-254 (La. App. 5 Cir. 6/26/02), 822 So.2d 840, the
court addressed this issue as follows:
Defendant has a constitutional right to be advised, in a criminal
prosecution, of the nature and cause of the accusations against him.
La. Const.1974, art. I, § 13.   Code of Criminal Procedure article 464
provides:    "The  indictment  shall  be  a  plain,  concise  and  definite
written  statement  of  the  essential  facts  constituting  the  offense
charged."     The Bill of Information must contain all the elements of
the crime intended to be charged in sufficient particularity to allow the
defendant to prepare for trial, to enable the court to determine the
propriety of the evidence that is submitted upon the trial, to impose
the  appropriate  penalty  on  a  guilty  verdict,  and  to  protect  the
defendant from double jeopardy.   State v. Allen, 00-0194 (La.App. 4
Cir.  08/01/01),  793 So.2d  426,  433, citing State v. Comeaux,  408
So.2d  1099  (La.1981).    When  the  name  of  the  person  injured  is
substantial  and  not  merely  descriptive,  it  shall  be  stated  in  the
indictment.  LSA-C.Cr.P. art. 473.
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A defendant may not complain of technical insufficiency in an
indictment for the first time after conviction, when the indictment
fairly  informed  the  accused  of  the  charge  against  him  and  the
defendant is not prejudiced by the defect.   State v. Michels, 98-608
(La.App. 5 Cir. 1/13/99), 726 So.2d 449.   The omission of an essential
fact does not necessarily create a prejudicial error because such facts
can be supplied during discovery, by a bill of particulars.   State v.
Allen,  supra.                                                                           For  these  reasons,  after  the  verdict  a  defendant
ordinarily  cannot  complain  of  the  insufficiency  of  a  Bill  of
Information "unless it is so defective that it does not set forth an
identifiable  offense  against  the  laws  of  this  state  and  inform  the
defendant of the statutory basis of the offense."   State v. Allen, 793
So.2d 426, 434.
Johnson, pp-3-4 , 822 So.2d at 842-43.
In the instant case the defendant did not file a motion to quash or object to
the bill of information prior to trial.  He also did not file any motion for discovery
or a request for a bill of particulars.  Instead, the record shows that he was given a
copy of the police report at arraignment.   Furthermore, the record contains the
arrest warrant application, which contains a detailed description of the alleged
offense and the age of the victim.  Additionally, three weeks after arraignment, a
preliminary hearing was held at which Detective Coulon and the victim’s mother
testified for the State, while the defense presented the victim’s grandparents as
witnesses.  The record indicates that the defendant was well aware of the
allegations against him and was in no way prejudiced by the fact that the bill of
information did not include the age of the victim or the specific nature of the acts
he was alleged to have committed.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the appellant argues that he was denied due
process and a fair trial when the prosecutors committed misconduct, first by
13




vouching for the credibility of the victim during closing arguments, and secondly
by acting unprofessionally during the trial.
As to the first allegation, the appellant cites two comments made during the
prosecutor’s original closing argument and one comment made during rebuttal.
However, there were no objections made to any of these comments.  Thus, any
error has not been preserved for appeal.  See La. C.Cr.P. art. 841.
The second allegation is that the prosecutors acted unprofessionally during
the trial by giggling and laughing inappropriately; defense counsel brought their
behavior up to the court, thus placing it on the record, and asked that the behavior
stop.  The court specifically asked if the defense was objecting; counsel replied
yes; and the court sustained the objections.   However, counsel did not request then
a mistrial or that the jury be admonished.
The appellant fails to address the lack of a motion for a mistrial, although he
argues that the misconduct denied him a fair trial.  A defendant’s failure to move
for a mistrial bars a defendant from complaining of the trial court’s failure to grant
a mistrial.  State v. Weaver, 99-2376, p. 5 (La. App. 4 Cir. 9/27/00), 770 So.2d
831, 834.   Moreover, when the trial court sustains an objection to the prosecutor’s
remarks and defense counsel fails to request an admonition or a mistrial, the
defendant cannot claim the comment was prejudicial.  State v. Dank, 99-0390, pp.
10-11 (La. App. 4 Cir. 5/24/00), 764 So.2d 148, 158; State v. Biagas, 99-2652, p.
11 (La. App. 4 Cir. 2/16/00), 754 So.2d 1111, 1117-18, citing State v. Baylis, 388
So.2d 713, 720-721 (La. 1980).
The appellant’s third assignment of error was not preserved for review.
14




ASSIGNMENT OF ERROR NUMBER FOUR
In his fourth assignment of error, the appellant avers that the sentence of six
years without the benefit of probation, parole, or suspension of sentence 2 is
excessive, arbitrary, capricious, and disproportionate.  In support of his argument,
he notes the testimony of the multitude of witnesses who testified on his behalf at
the sentencing hearing, his total lack of a criminal record, the trial court’s refusal to
allow a sentencing recommendation from the probation officer who completed a
presentence investigation report, and “unusual comments” from the trial court.
La. Const. art.  I, § 20 explicitly prohibits excessive sentences; State v.
Baxley, 94-2982, p. 4, (La. 5/22/95), 656 So.2d 973, 977.  Although a sentence is
within the statutory limits, the sentence may still violate a defendant's
constitutional right against excessive punishment.  State v. Brady, 97-1095, p. 17
(La. App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other
grounds, 97-1095 (La. App. 4 Cir. 3/16/99), 727 So.2d 1264; State v. Francis, 96-
2389, p. 6 (La. App. 4 Cir. 4/15/98), 715 So.2d 457, 461.  However, the penalties
provided by the legislature reflect the degree to which the criminal conduct is an
affront to society.  Baxley, 94-2984 at p. 10, 656 So.2d at 979, citing State v.
Ryans, 513 So.2d 386, 387 (La. App. 4 Cir. 1987).  A sentence is constitutionally
excessive if it makes no measurable contribution to acceptable goals of
punishment, is nothing more than the purposeless imposition of pain and suffering,
and is grossly out of proportion to the severity of the crime.  State v. Johnson, 97-
1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 676.  A sentence is grossly
2 The initial sentence, imposed on August 19, 2005, did not deny benefits.  On August 26, 2005, at the time the court
denied the motion to reconsider sentence, the court amended the sentence to deny benefits, a mandatory prohibition
under the statute.  See La. RS. 14:43.1(C).  It should be noted that La. R.S. 14:43.1(C) was subsequently amended to
provide that, if the victim is under the age of thirteen years and the offender over seventeen, the mandatory
15




disproportionate if, when the crime and punishment are considered in light of the
harm done to society, it shocks the sense of justice.  Baxley, 94-2984 at p. 9, 656
So.2d at 979; State v. Hills, 98-0507, p. 5 (La. App. 4 Cir. 1/20/99), 727 So.2d
1215, 1217.
Generally, a reviewing court must determine whether the trial judge
adequately complied with the guidelines set forth in La. C.Cr.P. art. 894.1 and
whether the sentence is warranted in light of the particular circumstances of the case.
State v. Soco, 441 So.2d 719 (La. 1983); State v. Quebedeaux, 424 So.2d 1009 (La.
1982).  If adequate compliance with Art. 894.1 is found, the reviewing court must
determine whether the sentence imposed is too severe in light of the particular
defendant and the circumstances of the case, keeping in mind that maximum
sentences should be reserved for the most egregious violators of the offense charged.
State v. Brogdon, 457 So.2d 616 (La. 1984), State v. Guajardo, 428 So.2d 468 (La.
1983); Quebedeaux, supra.
The trial court has great discretion in sentencing within the statutory limits.
State v. Trahan, 425 So.2d 1222 (La. 1983).  The reviewing court shall not set aside a
sentence for excessiveness if the record supports the sentence imposed.  La. C.Cr.P.
art. 881.4(D).
As noted by the appellant, the trial court heard testimony from twenty-two
defense witnesses at the sentencing hearing, although most of the testimony
actually consisted of the witnesses reading the letters they had written asking for
leniency.  Some of the witnesses, Shelly Ruiz, Stephanie Burlette, Stacey Galindo,
Leonidas Galindo, and the appellant himself, had also testified at the trial.  One of
minimum sentence is twenty-five years without benefits; the maximum is life imprisonment.  Under the present
provision, the appellant would be subject to this greater penalty.
16




the witnesses, Gary Schwartz, was the defendant’s supervisor at his place of
employment.  Others were family members and friends of the appellant.  Much of
the testimony painted a picture of the appellant as a generous person who did
charity work, stayed away from drugs and alcohol, was loyal to his friends and
family, and was involved in his church and community.  One of his friends, Heidi
Kiesling, testified that she and the appellant along with four other people had been
friends from high school.  Although some of the group had moved away, she
continued to live in Metairie and to see him.  She testified that the defendant had
spent time with her ten-year old son since his birth and that she had no qualms
about allowing him to play with the defendant.
Another witness, Robert Lapole, stated that he had traveled from Texas to
testify and that, when he was overseas in the military, he gave the appellant power
of attorney over his affairs.  Another witness was the Reverend Pedro Nunez, a
priest assigned to St. Raphael church.  He stated that he had known the appellant
and his family for twenty years and that the Galindo family, including the
appellant, had been a role model in the Hispanic community.
The appellant’s aunt, Maria Torres Couvillion, traveled from Arizona to
testify.  She stated that she had lived a few houses from the appellant and his
family from the time her daughter was one year old until she was eight years old
(she was eighteen at the time of the hearing).  Mrs. Couvillion denied that there
had ever been any indication or allegation that the appellant had molested his
cousin.  Another witness, Karen DiMartino Launey, who is related to the appellant
by marriage, similarly testified that her two young daughters spent time around the
appellant and that she never saw any evidence of molestation.  She testified she
would not hesitate to leave them with him.
17




At the sentencing proceeding, the State presented three witnesses, the
victim’s grandparents and mother.  The gist of the testimony of the grandparents
was their personal feelings of betrayal and anger toward the appellant and his
family.  The victim’s mother testified that the victim had undergone counseling for
a year, along with the other family members, and that the victim often asked when
the matter would be over.  She further testified that the victim had been released
from individual counseling just prior to the trial, but was still participating in
family counseling.  The victim’s mother said that she was personally looking
mainly for closure, and that she believed a sentence of two to five years would be
appropriate.
The appellant contends that the trial court made some unusual comments
during the sentencing hearing.  First, he notes that the court interrupted the victim’s
grandmother, stating that its concern was only the defendant and not the families.
The court stated that neither the family of the victim nor the family of the appellant
should feel responsible for what occurred.  However, given the nature of the
testimony being given at the time, the court’s comments make perfect sense.  C.M.
had discussed writing a lengthy letter and her counseling to deal with her anger and
loss of trust.  However, she referred to feelings of betrayal not only as to the
appellant, but also as to his parents, his in-laws, and his wife.  Also, prior to C.M.
testifying, the victim’s grandfather had testified.  During cross-examination,
defense counsel had asked about his role as a caretaker of his granddaughter and
whether the victim was allowed to go over to the appellant’s house unsupervised.
Thus, the trial court was obviously being given evidence, which inferred the fault
of the victim’s caretakers.  It does not appear unusual that the court would
18




proactively attempt to keep the focus of the sentencing hearing on the appellant
only.
The appellant also complains that the trial court stated for the record that it
was its policy not to allow the probation officer to recommend a sentence in the
presentence investigation report.  However, the court explained that it felt it was
the role of the court to determine the sentence.  This view of the court’s role did
not impact the ultimate sentence, which the court chose to impose.
After hearing all the testimony at the sentencing hearing, the court
expounded at length on what it considered important in its sentencing decision.
First, the court stated that it accepted the jury’s verdict.  The court then discussed
how difficult these types of crimes were to determine sentencing because “the
persons involved usually have no record or there is no record of violence.  They’re
persons who are known and respected in the community.”    The court then stated
that its focus was on the victim, and that toward that end the court had reviewed
the videotape of the victim’s statement after the trial, in the presence of counsel.3
The court stated that it found the tape compelling; the court already felt that the
testimony of the victim and her friend at trial was “very, very compelling.”
Finally, the court stated that it was taking into consideration the fact that the
appellant had a wife, a young child, and a very loving family, but nevertheless, that
there were recurring acts against a young and vulnerable victim for which the law
provided special protection.  The court then imposed a mid-range sentence of six
years.
3 The court explained that, during trial, it could hear but not see the video as it was played for the jury.
19




Considering that the court had the benefit of a presentence investigation
report, conducted a lengthy sentencing hearing, and gave extensive reasons for its
sentencing decision, there is no basis to find that the court abused its discretion.
Nevertheless, the appellant suggests that the sentence imposed is disproportionate
and excessive by citing to cases involving more egregious factual situations but
where the defendants received similar or lesser sentences.  However, the appellant
does not mention other cases wherein the defendants received similar sentences.
For example, in State v. Taylor, 95-179 (La. App. 3 Cir. 10/4/95), 663 So.2d 336,
the defendant, a first felony offender, received consecutive sentences of eight years
for sexual battery and three years for attempted indecent behavior with juvenile,
and the court found the sentences were not excessive.
In State v. Badeaux, 01-0406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234,
maximum consecutive sentences for sexual battery and indecent behavior with a
juvenile were upheld.  The court noted the trial court’s reliance on the factors of
the severity of the crime, the vulnerability of the child victim, who was fourteen,
and the use of the defendant’s position as an adult neighbor to commit the offense.
The court rejected the defendant’s argument that his status as a first felony
offender with a history of mental illness should militate against the maximum
sentences; the court also held that the trial court adequately justified imposing
consecutive sentences for offenses arising from one course of conduct.
In  State v. Hubb, 97-304 (La. App. 5 Cir. 9/30/97), 700 So.2d 1103, eight-
year sentences were not constitutionally excessive for two defendants who pled
guilty to sexual battery.  The defendants "french" kissed both victims on several
occasions.  One defendant exposed his genitals to both children and forced one of
the children to fondle him, and the other defendant attempted to make one of the
20




children fondle him and showed the other child photographs of nude women.    One
of the defendants had no criminal history; the other had only misdemeanor
offenses.
In State v. Toups, 546 So.2d 549 (La. App. 1 Cir. 1989), the defendant was
sentenced to eight years for the sexual battery of a five-year old child who was the
daughter of his girlfriend.  The child testified that he had touched her private place
and forced her to rub his.  Despite having no prior felony convictions, the appellate
court found that the sentence close to the maximum was not excessive.
As to the cases cited by the appellant, in none of them did the court find
the sentences excessive.  Furthermore, the cases arguably are distinguishable.  In
State v. Castillo, 97-595 (La. App. 5 Cir. 11/25/97), 705 So.2d 751, the defendant
received a three-year sentence for putting his hands into a nine-year old child’s
pants, rubbing her posterior, and placing his finger into her vagina.  However, the
defendant also entered a guilty plea, thus sparing the child the necessity of
testifying in open court; a lesser sentence for virtually the same action as in the
instant case is thus justified.
Similarly, in State v. Wilturner, 2003-0719 (La. App. 3 Cir. 11/5/03), 858
So.2d 743, the defendant received a five-year sentence for sexual battery of a
twelve-year old mentally disabled boy.   Although his actions were more egregious
than in the instant case, he too pled guilty rather than forcing the victim to go to
trial.  The other cases cited by the appellant, State v. Smith, 34,325 (La. App. 2
Cir. 12/20/00), 775 So.2d 640, and State v. Wheat, 612 So.2d 176 (La. App. 1 Cir.
1992), also involved guilty pleas.
21




The appellant’s sentence falls within the mid-range of the statute as written
at the time of the offense.  It is not disproportionate to many other sentences
imposed on first offenders and is not excessive.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER FIVE
In his fifth assignment of error the appellant avers that his trial counsel was
ineffective in failing to move to quash the bill of information and in not filing a
motion for a bill of particulars.  He further avers that his counsel was ineffective
because he did not file a motion in limine to exclude any reference to the allegation
that the defendant blew a “raspberry” on the victim’s anus after learning two days
before trial that the victim and her witness had recanted the allegation.
As stated in State v. Reichard, 2005-1262 (La. App. 4 Cir. 6/21/06), 935
So.2d 727:
Ordinarily, an ineffective assistance claim is better addressed in
an  application  for  post-conviction  relief  filed  in  the  trial  court  in
which a full evidentiary hearing can be held. State v. Howard,  98-
0064, p. 15 (La. 4/23/99), 751 So.2d 783, 802.   However, where the
record   is   sufficient   to   permit   a   determination   of   counsel’s
effectiveness at trial, the claims may be addressed on appeal.   State v.
Wessinger, 98-1234, (La. 5/28/99), 736 So.2d 162; State v. Bordes,
98-0086, p. 7 (La. App. 4 Cir. 6/16/99), 738 So.2d 143, 147; State v.
McGee, 98-1508, p. 4 (La. App. 4 Cir. 3/15/00), 758 So.2d 338, 341;
State v. Causey, 96-2723, p. 10 (La. App. 4 Cir. 10/21/98), 721 So.2d
78, 84.   Indeed, when the appellate record is sufficient, “the interests
of judicial economy justify consideration of the issues on appeal.”
State v. Kanost, 99-1822, p. 6 (La. App. 4 Cir. 3/29/00), 759 So.2d
184, 188.   Such is the case here.
The standard for assessing an ineffective assistance of counsel
claim  is  well-settled;  the  two-prong  standard  enunciated  in  the
seminal case of Strickland v. Washington,  466 U.S.  668,  104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), must be applied.   State v. Fuller, 454
So.2d 119 (La. 1984); State v. Brooks, 94-2438, p. 6 (La.10/16/95),
661 So.2d 1333, 1337 (on reh’g); State v. Robinson, 98-1606, p. 10
(La. App. 4 Cir. 8/11/99), 744 So.2d 119, 126.   In order to prevail, a
defendant  must  establish  both  that  counsel’s  performance  was
22




deficient and that the deficiency prejudiced the defendant.   State v.
Jackson, 97-2220, p. 8 (La. App. 4 Cir. 5/12/99), 733 So.2d 736, 741.
As to the former, the defendant must show that counsel made errors so
serious that counsel was not functioning as the “counsel” the Sixth
Amendment guarantees.    Strickland,  466 U.S. at  686,  104 S.Ct. at
2064; State v. Ash, 97-2061, p. 9 (La. App. 4 Cir. 2/10/99), 729 So.2d
664, 669.   As to the latter, the defendant must show that                              “counsel’s
errors were so serious as to deprive him of a fair trial, i.e., a trial
whose result is reliable.”   McGee, 98-1508 at p. 5, 758 So.2d at 342.
To  carry  his  burden,  the  defendant  must  show  that  there  is  a
reasonable probability that, but for counsel's deficient performance the
result of the proceeding would have been different; “[a] reasonable
probability is a probability sufficient to undermine confidence in the
outcome."   Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v.
Guy, 97-1387, p. 7 (La. App. 4 Cir. 5/19/99), 737 So.2d 231, 236.
An  “effective  counsel”  has  been  defined  as                                        “not  errorless
counsel, and not counsel judged ineffective by hindsight, but counsel
reasonably  likely  to  render  and  rendering  reasonably  effective
assistance.”    State  v.  Anderson,                                                    97-2587,  p.                              7  (La.  App.  4  Cir.
11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444 (La.
1983).   Given that “opinions may differ on the advisability of a tactic,
hindsight is not the proper perspective for judging the competence of
counsel’s  trial  decisions.                                                            Neither  may  an  attorney’s  level  of
representation  be  determined  by  whether  a  particular  strategy  is
successful.”  State  v.  Crowell,                                                       99-2238,  p.                              8                        (La.  App.   4  Cir.
11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So.2d
714, 724 (La. 1987)).     It follows then “trial strategy” type errors do
not constitute ineffective assistance of counsel. Crowell, 99-2238, at
p. 8, 773 So.2d at 878 (citing State v. Bienemy, 483 So.2d 1105 (La.
App. 4 Cir. 1986));   State v. Bordes, 98-0086, p. 8 (La. App. 4 Cir.
6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107
(noting that “[t]his court has previously recognized that if an alleged
error falls  ‘within the ambit of trial strategy’ it does not  ‘establish
ineffective assistance of counsel.’”)
Reichard, pp. 4-6, 935 So. 2d at 730-31.
As to the first complaint, the record is clearly sufficient to resolve the
question.  Even if defense counsel should have requested a bill of particulars, there
is no indication that the appellant was prejudiced.  Counsel was well aware of the
specific allegations against his client and was well-prepared for trial.  There is
absolutely nothing in the record to indicate that, even if a bill of particulars had
been provided, counsel would have been prepared better or differently.  As
23




discussed in connection with the appellant’s first assignment of error, the
preliminary hearing, arrest warrant application, and police report all provided
defense counsel with sufficient information to determine the particulars of the
allegations against which he had to mount a defense.
As to the second complaint, the record also appears sufficient.  The claim
arises from the fact that the prosecutors advised the defense counsel that, in an
interview with the two girls prior to trial, the girls had recanted the allegation that
the appellant had blown a “raspberry” on the victim’s anus.  The appellant suggests
that it was deficient conduct on the part of his counsel to explore this allegation
during cross-examination of the children because it constituted evidence of the
separate crime of oral sexual battery, La. R.S. 14:43.3, for which he had originally
been arrested pursuant to a warrant, but for which he was not prosecuted.  Thus,
the appellant argues, his counsel erroneously allowed an unadjudicated sexual
crime into evidence, instead of moving to exclude any reference to it or obtaining a
stipulation that the girls had changed their stories.
Here, the record does not affirmatively show why counsel chose to question
the girls about the discrepancy between what they originally reported regarding the
“raspberry” incident and what they told the assistant district attorneys just prior to
trial.  However, it appears to have been a conscious choice of trial strategy.  The
central issue in the case was the credibility of E.M. and M.M.  Defense counsel
carefully elicited that both girls had changed their statements in an obvious attempt
to impeach their credibility.  Notably, when counsel questioned M.M. about her
inconsistent statement to the assistant district attorney, the State objected
repeatedly and unsuccessfully.  Defense counsel then elicited from M.M. that, after
speaking to the prosecutors the day before trial, her mother told her what to say at
24




trial.  The prosecutor objected again when defense counsel questioned E.M. about
the change in her statement.  Defense counsel was able to have E.M. admit that she
told the prosecutors that she “made up” this particular allegation against the
appellant, although she also said she was confused when she spoke with them.
E.M. also, like M.M., testified that her mother told her “to tell everybody about [a]
raspberry being blown” on her anus.
Although the jury ultimately found that E.M. and M.M. were credible, it
appears that defense counsel made a calculated choice to attack their credibility
with the fact that they recanted a portion of the allegations when they spoke to the
assistant district attorneys prior to trial.  The fact that a strategy proves
unsuccessful does not constitute ineffective assistance of counsel.
This assignment of error lacks merit.
ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER SIX
In his final assignment of error, the appellant requests review of the record
for any errors patent, which review this Court undertakes even in the absence of an
assignment of error.  That review reveals no errors.
For the above and foregoing reasons we affirm the appellant’s conviction
and sentence.
AFFIRMED
25

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