STATE OF LOUISIANA v. DANIEL JOHN LASCARI JR (2025)

The defendant, Daniel John Lascari, Jr., was charged by an amended bill of information with molestation of a juvenile under the age of thirteen years, a violation of La. R.S. 14:81.2(D)(1), and sexual battery of a victim under the age of thirteen years, a violation of La. R.S. 14:43.1(C)(2). He pled not guilty. After a trial by jury, he was found guilty as charged on each count. The defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which the trial court denied. The trial court sentenced the defendant on each count to fifty years of imprisonment at hard labor, with the first twenty-five years of each sentence to be served without the benefit of probation, parole, or suspension of sentence. The trial court ordered the sentences to be served concurrently. The trial court denied the defendant's oral motion to reconsider sentence. The defendant now appeals, raising six assignments of error. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On March 8, 2018, A.N.,¹ who was eight years old at the time, informed Kristen Favaloro, her teacher at her school in Covington, Louisiana, that she was bleeding from her private area. Ms. Favaloro had an adult escort A.N. to the school counselor, Linda Garron, to whom A.N. disclosed that on the night before her disclosure, her “Daddy” (the defendant)² rubbed her “a little hard” while putting lotion on her “private part.” A.N. further stated she felt the defendant's private part on her arm at one point, but she moved her arm.³ Ms. Garron reported A.N.’s disclosures to the Department of Children and Family Services (DCFS). DCFS reported the matter to the St. Tammany Parish Sheriff's Office, and the case was assigned to Detective Bernice Andre.

A.N.’s mother brought her to the Children's Hospital in New Orleans, where a rape kit was administered, and then to the Hope House in Covington, where a forensic interview was conducted. Thereafter, Detective Andre obtained and executed a search warrant for the family's residence, a warrant to collect the defendant's DNA, and a warrant for the defendant's arrest. A.N.’s underwear was collected during the execution of the search warrant and sent to the St. Tammany Parish Coroner's Office, along with the defendant's DNA swabs and A.N.’s rape kit. Tara Bell, a forensic DNA analyst employed by the coroner's office, tested a stain on A.N.’s underwear, which produced a DNA sample from which the defendant “and all male relatives on his paternal lineage” could not be excluded as a donor.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant contends he was denied a full and fair voir dire guaranteed by the constitution. He notes defense counsel was compelled to conduct voir dire of forty prospective jurors at once, with eighteen of them seated behind the State and defense counsel tables. The defendant further contends the attorneys were unable to make eye contact or observe facial expressions, body language, and the demeanor of all the prospective jurors. He contends the error was a structural one that permeated the entire trial.

An accused in a criminal case is constitutionally entitled to a full voir dire examination and to the exercise of peremptory challenges. La. Const, art. I, § 17(A). Pursuant to La. Code Crim. P. art. 786, the court, the State, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court. The purpose of voir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality and discovering bases for intelligent exercise of cause and peremptory challenges. State v. Williams, 457 So.2d 610, 613 (La. 1984); State v. McGhee, 2014-1359 (La. App. 1st Cir. 3/6/15), 2015 WL 996370, *2 (unpublished), writ denied, 2015-0699 (La. 5/2/16), 206 So.3d 876.

Herein, the record reflects that after a pool of prospective jurors entered the courtroom, the trial court indicated that twenty-two prospective jurors would be seated as a group. The trial court further described seating arrangements for an additional group of eighteen prospective jurors, stating, “[t]hen in the front row, in which many of you are right behind, we'll have an additional group of, we hope, nine and nine.”

Subsequently, the first twenty-two prospective jurors were called and seated, after which the trial court noted the rest would be seated “in the front two rows.” The record further reflects the trial court stopped short of its initial goal, stating, “I think that will do for the first round[,]” with thirty-seven prospective jurors then being sworn in for voir dire examination. The trial court addressed and questioned the prospective jurors, followed by examination by attorneys for the State and the defendant.

The record does not reflect the defendant objected to the jury selection process in this case. Although the defendant now argues this is an issue of potential structural error, the Louisiana Supreme Court has consistently held that when a defendant fails to timely raise an objection to irregularities in the jury selection process, review of those irregularities is waived. State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832, 840. Furthermore, during voir dire, there was no indication that the attorneys or trial court had difficulty interacting with the prospective jurors. Accordingly, this assignment of error is not preserved for appellate review or is otherwise without merit.⁴

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

In assignment of error number two, the defendant argues the trial court failed to determine the competency of a juror who fell asleep twice during the defendant's trial testimony. Similarly, in assignment of error number three, the defendant argues the trial court erred in denying his motion for new trial on this basis, noting two witnesses observed the juror in question sleeping during the defendant's testimony.

Louisiana Code of Criminal Procedure article 789(A) provides the following standard for substituting a juror with an alternate juror: “Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.” The determination of whether a juror has become unable to perform or disqualified to perform their duty is one made by the trial court in its discretion. See State v. Derouselle, 99-3283 (La. 4/28/00), 761 So.2d 1269, 1270 (per curiam).

Proof that a juror briefly dozed off is not per se proof of inability to perform or of any character of disqualification. See State v. Cass, 356 So.2d 396, 398 (La. 1977) (therein holding that a trial court's summary removal of a juror who was allegedly sleeping during a portion of the trial testimony was reversible error). However, a situation wherein a juror is shown to have been sleeping through a substantial part of the trial or unable to stay awake despite warnings or efforts to arouse him would present “a substantially different question for review.” See Cass, 356 So.2d at 398.

Herein, after his direct examination of the defendant, defense counsel informed the trial court that one of the jurors, Thomas Patton, “appeared to be nodding off and sleeping.” Defense counsel asked the trial court to strike Mr. Patton from the jury and empanel the alternate juror. The State indicated it did not observe the juror sleeping and argued counsel's objection should have been made contemporaneously - during the course of the direct examination of the defendant - and addressed at that time. The trial court denied the motion to strike, noting it would be vigilant. Defense counsel objected to the trial court's ruling.

Later, during a bench conference which took place during the cross-examination of the defendant, defense counsel indicated Mr. Patton was “sleeping again” adding, “[h]e keeps nodding off.” The trial court stated it would caution everyone, offer a coffee break, and cure the issue should it reoccur. Defense counsel then thanked the court. The trial court then informed the jurors coffee breaks would be allowed and issued the cautionary statement to the jurors, telling them “[i]t is important to pay careful attention at all times.”

During the hearing on the motion for new trial,⁵ Karen Guzzardo, an employee of the St. Tammany Parish Clerk of Court, testified she noticed Mr. Patton sleeping during the trial. She stated he was “[f]ully asleep[,]” though she was unable to say how many times she observed him sleeping. Ms. Guzzardo noted the trial court addressed the jury, offering to take a brief recess if they were tired or needed coffee. She further noted Mr. Patton went back to sleep after coffee was offered to the jury. She clarified she only saw him sleeping during the defense's case and did not remember him sleeping during other portions of the trial.

Stephen Fisher, the defendant's brother-in-law who testified at trial, testified at the hearing for the motion for new trial that that he observed a juror on the front row sleeping during the trial. Mr. Fisher specifically stated, “I saw him definitely sleeping [on] one occasion. He was nodding off and very still several times, like, three or four times throughout the four or five hours that I was here.” The trial court noted the trial required long hours and further stated that it had promptly addressed the issue of the juror sleeping when it was brought to the court's attention.

In State v. Shurley, 2014-0850 (La. App. 1st Cir. 6/5/15), 2015 WL 3 613186, *5 (unpublished), writ denied, 2015-1246 (La. 6/17/16), 192 So.3d 775, the defendant requested a juror be removed, or alternatively, moved for a mistrial after a juror was allegedly dozing off during the testimony of the case detective. The trial judge questioned the juror outside the presence of the other jurors, and she admitted to dozing off for a few seconds. Shurley, 2015 WL 3613186 at *5. Based on the short length of time that the juror appeared to be sleeping, the trial judge did not believe there was a sufficient reason to remove the juror. Id. at *5. On appeal, this court found no error in the trial court's decision, noting that the juror's dozing was “a minor, isolated incident, as opposed to a substantial, chronic one.” Id. at *6; see also State v. Moore, 2017-1607 (La. App. 1st Cir. 2/6/19), 2019 WL 474712, *4 (unpublished), writ denied, 2019-03 76 (La. 5/6/19), 270 So.3d581.

By contrast, in State v. Brown, 2023-01715 (La. 12/13/24), 397 So.3d 321, 323, over defense objection, the trial court removed and replaced a juror whose apparent sleeping was found to be “a substantial and chronic distraction to the trial court.” On appeal, the defendant, in part, challenged the removal of the juror. This court rejected the defendant's argument and affirmed his convictions and sentences. Brown, 397 So.3d at 323-24. The Louisiana Supreme Court granted the defendant's writ application and affirmed the trial court's removal of the juror, finding no abuse of discretion. Id. at 328. The juror was observed with her eyes closed on multiple days of the trial, during both live witness testimony and the presentation of the defendant's video statement. She was warned to stay awake by the trial court several times and was tapped on her shoulder to be awakened by a bailiff and another juror. She also exhibited “over-exerted respiration[,]” which resembled snoring. It was also noted defense counsel did not move for a hearing to question the juror on the record. Id. at 323. The Court concluded the record therein supported the juror was not attentive and that her sleepiness put her evaluation of the evidence at risk. Id. at 328.

Based on the totality of the instant record, we cannot say Mr. Patton's sleeping rose to the level of a substantial, chronic distraction. After defense counsel's initial objection and request for removal, defense counsel brought the issue to the trial court's attention only once more, noting that Mr. Patton was sleeping again. However, defense counsel did not renew his request for removal and thanked the trial court after it decided to address the issue by offering coffee and giving a cautionary statement to the jurors. Further, we note defense counsel did not request to question Mr. Patton on the record to determine if he was unable to perform his function. Based on the record before us, we find no error of law, injustice, or abuse of discretion in the trial court's initial ruling denying the motion to replace Mr. Patton or in thereafter denying the motion for new trial. Accordingly, assignments of error numbers two and three lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In assignment of error number four, the defendant argues the trial court erred in allowing A.N. and her mother to testify about subsequent events, namely self-mutilation and a suicide attempt by A.N., without any psychological link between these acts and the instant offenses. The defendant argues the testimony was irrelevant and more prejudicial than probative.

“Relevant evidence” means 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. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by the law. Evidence that is not relevant is not admissible. See La. Code Evid. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. See La. Code Evid. art. 403. In assessing questions of relevancy, the trial court is entitled to much discretion, and its rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. State v. Melendez, 2017-0015 (La. App. 1st Cir. 6/2/17), 2017 WL 2399034, *1 (unpublished).

Herein, at trial, A.N.’s mother testified they moved back to their hometown in Tennessee about a week after the instant offenses. She testified A.N. had “a lot of ups and downs” at which point defense counsel made an anticipatory request for a bench conference, asking the trial court to exclude any testimony of an alleged suicide attempt as irrelevant and inappropriate. The trial court stated it would “overrule [the defendant's] blanket objection” at that point, noting it would reserve the objection until a foundation was laid for the anticipated testimony, and then allowed A.N.’s mother to continue. At that point, A.N.’s mother testified, “[A.N.] has had a lot of emotional, mental ․ she started pulling her hair out when she was getting upset. After that, she had cut herself a few times. And then she had a suicide attempt.” Defense counsel then moved for a mistrial,⁶ the motion was denied, and A.N.’s mother was allowed to describe the cutting and suicide attempt. A.N.’s subsequent testimony was consistent with her mother's testimony regarding her struggles with self-harm, including cutting and her suicide attempt.⁷

We find no abuse of discretion by the trial court in admitting the challenged testimony by A.N.’s mother. At trial, the defendant claimed A.N. lied about her allegations of sexual abuse, had a history of being dishonest, did not like the defendant, and wanted the defendant out of her life. Thus, testimony concerning A.N.’s behavior, including engaging in self-harm, after the alleged incidents was relevant to rebut the defendant's claim that she lied about the incidents. See Melendez, 2017 WL 2399034 at *1-2; State v. Duck, 54,597 (La. App. 2d Cir. 12/14/22), 3 52 So.3d 1097, 1114, writ denied, 2023-00079 (La. 12/5/23), 3 73 So.3d 717; State v. Lambert, 98-0730 (La. App. 4th Cir. 11/17/99), 749 So.2d 739, 755, writ denied, 2000-1346 (La. 1/26/01), 781 So.2d 1258. Even if the testimony at issue was prejudicial, its probative value was in no way substantially outweighed by the danger of unfair prejudice, confusion, or misleading of the jury. See La. Code Evid. art. 403. Accordingly, we find no merit in assignment of error number four.

ASSIGNMENT OF ERROR NUMBER FIVE

In assignment of error number five, the defendant argues Dr. Anne Troy impermissibly bolstered A.N.’s testimony. The defendant notes Dr. Troy testified that victims of abuse often suffer from mental disorders and indicated A.N.’s mental issues and self-harm could have resulted from abuse.

Dr. Troy, an expert, witness in child maltreatment and sexual abuse, explained the concepts related to child sexual abuse such as delayed disclosure, grooming, and the interview process. She further testified regarding the effects of sexual abuse on a child, which she noted often includes depression, low self-esteem, cutting, and suicidality. However, Dr. Troy explained that victims of sexual abuse may react differently to the abuse. She repeatedly clarified that she was not testifying that A.N. was sexually abused or attempting to bolster her as a witness, but was instead speaking to the science. Dr. Troy further testified she did not provide any medical care to A.N.

At the outset we note the record reflects the defendant did not object to Dr. Troy's testimony. An irregularity cannot be availed of after the verdict unless it was objected to at the time of the occurrence. La. Code Crim. P. art. 841(A). The contemporaneous objection rule has two purposes: to put the trial judge on notice of the alleged irregularity so that he may cure the problem and to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. Thus, to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. See La. Code Crim. P. art. 841(A); State v. McElveen, 2023-0939 (La. App. 1st Cir. 12/30/24), ___ So.3d ___, 2024 WL 5245030, *13.

Notably, on cross-examination, defense counsel questioned Dr. Troy about cutting and suicide attempts, which elicited additional testimony regarding the correlation between sexual abuse and self-harm, the subject matter to which the defendant objects on appeal. As the defendant did not contemporaneously object to Dr. Troy's testimony, he is precluded from raising this issue on appeal.⁸ See Melendez, 2017 WL 2399034 at *2 n.4. Accordingly, assignment of error number five was not preserved for review.

ASSIGNMENT OF ERROR NUMBER SIX

In assignment of error number six, the defendant argues the sentencing is excessive in this case. He notes he has no history of sexually deviant behavior. He further notes that in initial interviews A.N. said the incident occurred only a few times. He contends a comparison of the sentences imposed in similar cases provides additional evidence that the sentences are excessive.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. See State v. Sepulvado, 367 So.2d 762, 766-67 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. The trial court has great discretion in imposing a sentence within the statutory limits, and this court will not set aside such a sentence as excessive in the absence of a manifest abuse of discretion. State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So.3d 207, 211, writ denied, 2017-1743 (La. 8/31/18), 251 So.3d 410.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Scott, 228 So.3d at 211. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Id. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even when there has not been full compliance with Article 894.1. Id.

The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Harris, 2022-1190 (La. App. 1st Cir. 6/2/23), 3 69 So.3d 447, 451. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Scott, 228 So.3d at 211.

On count one, molestation of a juvenile under the age of thirteen years, the defendant faced a sentence of imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence. La. R.S. 14:81.2(D)(1). Likewise, on count two, sexual battery of a victim under the age of thirteen years, the defendant faced a sentence of imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence. La. R.S. 14:43.1(C)(2). Thus, the fifty-year concurrent sentences imposed by the trial court are mid-range sentences. Further, the requisite minimum number of years were ordered to be served without benefits.

On appeal, the defendant argues the record does not reflect the trial court considered his personal history, prior criminal record, the seriousness of the offenses, and the likelihood of rehabilitation. He notes he is a first-time offender with no past history of proclivity to interact sexually with minor children. Noting he was born in 1982, he further contends any more than twenty-five years imprisonment will likely result in his death in prison. Finally, he notes, if released from prison, he will be required to be electronically monitored for the rest of his life and register as a sex offender.

At the sentencing hearing, the defendant submitted a letter to the judge, in which he claimed innocence and expressed concerns for his freedom. He did not express any remorse or concern for A.N. The State also introduced a victim impact statement by A.N., in which she stated the defendant did not understand how much he ruined her life or have any bad feelings regarding his actions. She further stated she would never be able to forget the “lingering feeling of [the defendant's] dirty hands.” She requested the maximum punishment.

In imposing the sentences in this case, the trial court found an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime. See La. Code Crim. P. art. 894.1(A)(1). The court also found the defendant is in need of correctional treatment that can be provided most effectively by commitment to an institution and noted a lesser sentence would deprecate the seriousness of the defendant's crimes. See La. Code Crim. P. art. 894.1(A)(2) and (3). Further, the trial court noted it reviewed the statutory scheme of each of the offenses and heard the testimony and considered the “devastating downstream consequences” of the defendant's victimization of the particular victim, A.N., and her family, as well as “the long-term consequences to [A.N.] and those around her.” See La. Code Crim. P. art. 894.1(B)(1), (2), and (9).

We reject the defendant's argument that the sentences imposed in other cases support his excessive sentence claim. There is little value in making sentencing comparisons. It is well-settled that sentences must be individualized to the particular offender and to the particular offense committed. State v. Folse, 2018-0152 (La. App. 1st Cir. 9/21/18), 393 So.3d 917, 934, writ denied, 2018-1740 (La. 4/22/19), 268 So.3d 296. In this case, we find the trial court adequately considered the sentencing guidelines. Further, notwithstanding the defendant's arguments on appeal regarding his first offender status and likelihood of dying in prison due to his age, we find the reasons articulated by the trial court are more than sufficient to support the defendant's sentences. The defendant used his position of trust and authority over A.N. to sexually abuse her at a very young age and consistently demonstrated a lack of remorse. Considering the facts of the offenses and the impact of the offenses on the victim, we reject the defendant's argument that the mid-range sentences imposed herein are grossly out of proportion to the seriousness of the offenses. Further, the sentences do not shock this court's sense of justice. Thus, we find no abuse of the trial court's discretion in imposing the sentences. Accordingly, assignment of error number six lacks merit.

PATENT ERROR REVIEW

On appeal, this court routinely reviews the record for error patent. Pursuant to La. Code Crim. P. art. 920(2), in conducting a patent error review, this court shall consider “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

Louisiana Code of Criminal Procedure article 930.8(C) provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for applying for post-conviction relief. Herein, the record reflects the trial court failed to properly advise the defendant of the prescriptive period for applying for post-conviction relief under La. Code Crim. P. art. 930.8(C). Specifically, the trial court informed the defendant he has two years to file an application for post-conviction relief from the date the convictions become final but made no mention of the finality of the sentences.

Nonetheless, the trial court's failure to correctly advise the defendant of the limitation period has no bearing on the sentence and is not grounds to reverse the sentence or remand for resentencing. See State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1142-43, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. Out of an abundance of caution, we advise the defendant La. Code Crim. P. art. 930.8 generally provides that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of convictions and sentences have become final under the provisions of La. Code Crim. P. arts. 914 or 922. See LeBoeuf, 943 So.2d at 1143.

CONVICTIONS AND SENTENCES AFFIRMED.

FOOTNOTES

1.   In accordance with La. R.S. 46:1844(W), the child victim herein is referenced only by her initials. We note the victim's mother has the same initials and will be referenced herein as “A.N.’s mother.”

2.   The defendant was engaged to A.N.’s mother and they had been living together since A.N. was approximately six years old.

3.   According to Ms. Garron, A.N. disclosed additional incidents, starting when she was eight years old.

4.   We note this case is distinguishable from State v. St. Amant, 413 So.2d 1312, 1319 (La. 1981) (on rehearing), upon which the defendant relies on appeal. Therein, the Louisiana Supreme Court granted a rehearing on whether the defendant's right to a full voir dire examination was circumvented due to the examination of thirty-six prospective jurors at the same time. St. Amant, 413 So.2d at 1319. In its majority opinion on rehearing, the Court noted defense counsel twice asked the State to “slow down” its examination because he was unable to “keep up,” and the trial judge denied defense counsel's request to further question twelve selected jurors. Id. Although the Court originally found no abuse of the trial court's discretion in overruling the defendant's objection to the voir dire process, on rehearing, the Court reversed its original decision and remanded the case for a new trial. However, the Court noted its holding was specific to the case before it: “[u]nder the facts and circumstances of this case, we conclude that the trial judge abused his discretion by requiring the examination of thirty-six jurors at the same time.” Id. at 1320. Thus, St. Amant did not hold that a jury selection procedure for voir dire examination of prospective jurors in panels of thirty-six or more is per se reversible error. Unlike the circumstances of St. Amant, herein there is no indication the voir dire was rushed or limited or that the defendant was afforded less than a full and fair examination.

5.   The pertinent portion of the defendant's motion for new trial is pursuant to two grounds: a ruling during the proceeding shows prejudicial error; and the ends of justice would be served by granting a new trial. See La. Code Crim. P. art. 851(B)(2) and (5), respectively. A ruling on a motion for new trial on the ground of serving the ends of justice presents a question of law, which should not be disturbed on review unless the trial court abused its great discretion. See State v. Guillory, 2010-1231 (La. 10/8/10), 45 So.3d 612, 615 (per curiam); see also State v. Garnett, 2023-0699 (La. App. 1st Cir. 2/21/24), 384 So.3d 384, 389 n.1. In deciding whether the trial court abused its discretion in granting or denying a new trial under Article 851(B)(5), we keep in mind two precepts. One, the trial court is vested with almost unlimited discretion and its decision should not be disturbed unless there has been a palpable abuse of that discretion. Secondly, this ground for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion should be denied, no matter upon what allegations it is grounded. See Guillory, 45 So.3d at 615.

6.   On appeal, the defendant does not challenge the trial court's denial of his motion for mistrial, only his overruled objection. In an abundance of caution, we note mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive him of a fair trial. State v. Walston, 2022-0317 (La. App. 1st Cir. 11/4/22), 2022 WL 16707997, *7 (unpublished), writ denied, 2022-01809 (La. 9/19/23), 370 So.3d 464. When a complained-of remark or comment is made by a witness, La. Code Crim. P. art. 771(2) allows the defendant to request that the court promptly admonish the jury to disregard irrelevant or prejudicial remarks. A mistrial under La. Code Crim. P. art. 771 is at the trial court's discretion and should be granted only where the prejudicial remarks make it impossible for the defendant to obtain a fair trial. A trial court's ruling denying a motion for mistrial will not be disturbed absent an abuse of discretion. Walston, 2022 WL 16707997 at *7. Herein, the defendant did not ask the trial court to admonish the jury. Further, as later discussed, there has been no showing of any prejudice tending to deprive the defendant of the reasonable expectation of a fair trial. Thus, the trial court did not abuse its discretion in denying the motion for mistrial.

7.   We note the defendant did not object to A.N.’s testimony. To the extent the defendant challenges A.N.’s testimony on appeal, the defendant has waived this argument since a contemporaneous objection is required to preserve an error for appellate review under La. Code Crim. P. art. 841(A). Melendez, 2017 WL 2399034 at *2, n.4. Moreover, A.N.’s testimony was cumulative to testimony by her mother, asserted in this assignment of error, to which the defendant did object and preserve for appellate review.

8.   We note the defendant raised this issue in his motion for new trial. Nonetheless, raising the issue in a motion for new trial does not serve to revive it, nor does it preserve it for appellate review. State v. Moody, 2000-0886 (La. App. 1st Cir. 12/22/00), 779 So.2d 4, 8, writ denied, 2001-0213 (La. 12/7/01), 803 So.2d 40.

THERIOT, J.