STATE v. WARREN (2025)

On July 22, 2020, Defendant Dalvin Warren was charged by a grand jury indictment with one count of indecent behavior with a juvenile, a violation of La.R.S. 14:81.¹ On August 6, 2024, the State filed a motion, which the court granted, to amend the indictment to include the victim's age, twelve, and date of birth, October 24, 2007. On August 9, 2024, after a four-day trial, a unanimous jury found Defendant guilty of indecent behavior with a juvenile under the age of thirteen. Thereafter, on October 1, 2024, the trial court sentenced Defendant to twenty-five years at hard labor, the first two years without benefit of probation, parole, or suspension of sentence. The trial court suspended three years of the sentence and ordered Defendant be placed on supervised probation for three years. As special conditions of probation, the trial court ordered Defendant to pay a $2,000.00 fine; $1,000.00 for the cost of prosecution; $435.00 for court costs; a $50.00 victim's reparation fee; and a $71.00 per month probation supervision fee ($11.00 of which was allocated to the Louisiana Sex Registry Fund.) In default of payment, the trial court ordered Defendant to serve six months in the Avoyelles Parish Jail. The trial court also ordered various other conditions of probation; the pertinent conditions will be further discussed in the “Errors Patent and Sentencing Issues” section of this opinion.

Defendant filed a notice of appeal that was granted on October 25, 2024. On March 19, 2025, this court remanded the appeal for an evidentiary hearing to determine whether Defendant was entitled to court-appointed counsel for the purposes of appeal. After an evidentiary hearing held April 14, 2025, the trial court found Defendant eligible for the appointment of counsel. The appeal was re-lodged in this court on May 14, 2025. Defendant alleges four assignments of error: (1) that the indictment was defective; (2) that the trial court erroneously allowed the improper use of expert digital forensic evidence; (3) that the jury's request to review evidence was erroneously denied; and (4) that the sentence was excessive. For the following reasons, we affirm Defendant's conviction. The sentence, however, is vacated because of various errors patent, and the case is remanded for resentencing.

FACTS

The victim testified that Defendant was her “step-grandpa” and described him as a friend in whom she confided. According to the victim, she and her family had a bonfire on October 18, 2020. The victim was drinking along with other adults. Defendant texted her from Wal-Mart to see what kind of alcohol she wanted. According to the victim, it was common for Defendant to provide her with alcohol.

The victim and Defendant talked “regular” at the bonfire, but when everyone went inside, they began “sexual flirting texting.” The victim stated Defendant told her he was going to give her “oral.” At another point in the night, “Joey” (the victim's stepdad), sent her a text stating that he bet Defendant was about to send her a “dick pic.” While she and Joey were texting, Defendant sent her a picture of his “dick.” The victim said she sent a screenshot of the picture to Joey and said, “they looked the same.” When the State asked her why she was comfortable sending that screenshot to Joey, the victim started crying. The victim stated that Joey was her best friend, and she loved him. The victim explained that she loved Joey like a boyfriend and did not see him as her stepdad.

At another point in the night, Defendant kissed her and then pushed her head down to give him “oral.” Someone almost caught them, the victim testified, so they went back outside. Later, the victim and Defendant went to the back of the shed, at which time Defendant gave the victim “oral” and then put the tip of his penis inside of her.

The victim testified that she sent Defendant pictures of herself without clothes on, but she did not recall how many. The victim remembered that on the evening of the bonfire, she sent Defendant a picture of her vagina. The victim testified that she was twelve years old when she sent the picture of her vagina to Defendant. According to the victim, “sending pictures and the stuff” with Defendant “lasted like two days and that was it.”

At another point in the evening, the victim laid on the floor of the outdoor kitchen and placed herself where only Defendant could see. The victim pulled her pants to the side, opened her legs, and showed her vagina while Defendant was watching. The victim testified that Defendant later FaceTimed her while he masturbated in the shower.

The victim woke up to her mom and “Tina” looking for her phone. According to the victim, Joey cleared her phone before her mom got it. The victim testified that Joey and her mom broke up because her mom walked in while Joey was “raping” her. The victim agreed that this occurred in July 2021, at which time the victim claimed to still be in love with Joey. Although the victim stated that she wanted to have sex with Joey, she used the word “rape” since she was twelve and he was thirty-five.

Defendant testified and denied the allegations made by the victim. According to Defendant, at one point during the bonfire, he looked for his phone in his chair but could not find it. The victim, Defendant testified, came out of the shop with Defendant's phone and “was just kind of laughing.” Later, after he took a shower, Defendant saw that he was receiving a FaceTime call from the victim. Defendant began hitting the wall to wake his wife and accidentally answered the call, which was “minimized.” Defendant further testified that he received a picture from the victim, which he immediately closed and deleted. Defendant and his wife began arguing, and Defendant denied that anything had been going on.

Defendant testified that he was an “uncircumcised man” and denied that “those dick pics” were of him. According to Defendant, his son, Joey, was circumcised. When asked if he was “almost ninety percent sure those pictures” were of Joey's penis, Defendant responded, “Yes, sir.”

ERRORS PATENT AND SENTENCING ISSUES

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are several errors patent involving the sentence imposed.

First, the trial court stated that Defendant was subject to the following general condition of probation: “[H]e shall make reasonable reparation or restitution to the aggrieved party for damages or loss cause [sic] by his offense in an amount to be determined by the court; if appropriate.” This court has stated the following regarding the imposition of restitution as a condition of probation without specifying the amount of restitution to be paid:

Whether the restitution was ordered as a condition of probation or as part of the principal sentence, the restitution order must be a certain amount determined by the trial court:

If restitution is ordered as a condition of probation, it is to be “a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain” [La C. Cr. P. art. 895.1(A)(1)] and “in an amount to be determined by the court” [La. C. Cr. P art. 895(A)(7)]. When the trial court fails to set a specific amount to be paid in restitution as a special condition of probation, the defendant's sentence is defective. State v. Wilson, 613 So.2d 234 (La. App. 1 Cir. 1992), writ denied, 93-0533 (La. 3/25/94), 635 So. 2d 238. The court may also order restitution as part of the principal sentence under La. C. Cr. P. art. 883.2, in which case a nonspecific restitution order will render the sentence indeterminate and thus invalid. State v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223.

State v. Hampton, 52,430, p. 2 n. 2 (La.App. 2 Cir. 11/14/18), 261 So.3d 993, 998, n. 2, writ denied, 19-287 (La. 4/29/19), 268 So.3d 1029 (alterations in original).

In the present case, the trial court stated the following regarding restitution:

In addition to that, the restitution, the Court's gonna order that there be, if there's any, that there be restitution and at the request of your Court appointed attorney you are ․ you are reserved unto you the restitution hearing if there's a debate between him and ․ and the other department [sic] ․

In a recent case, this court addressed the trial court's failure to set an amount of restitution and found the error required the sentence to be vacated and the case remanded for resentencing. State v. Loyd, 18-968 (La.App. 3 Cir. 6/5/19), 274 So.3d 112. The restitution order found to be indeterminate in Loyd and in the case cited by Loyd is similar to the restitution order in the present case. Addressing the issue, Loyd stated:

We further find that in sentencing Defendant, the trial court failed to set the amount of restitution to be paid to the victim. Specifically, the trial court stated:

Order that you pay restitution to Ms. [Spotsville] for the monetary amount that she paid you, and as well as any out of pocket expenses that were not covered by insurance. Court will allow you to res - - reserve the right to a restitution hearing if you and your par - - probation or parole officer cannot agree on that amount.

In State v. Fussell, 06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, restitution was imposed pursuant to La.Code Crim.P. art. 883.2, as it was in the instant case. On error patent review, this court found the defendant's sentence was indeterminate due to the trial court's failure to set the amount of restitution. The trial court stated in pertinent part:

I'm also gonna [sic] order you to pay all restitution involved with respect to - - if there is any - - I order you to pay for any and all medical counseling and health expenses incurred by the victim or her family, as a consequence of your conviction for these offenses. That's also gonna [sic] be - - it's an indetermined amount, it's just gonna [sic] be generally made in the judgment. I don't know what it's gonna [sic] be. I don't even know if the State's gonna [sic] make an application for that.

․

And I've already ordered you to pay for any and all medical counseling or other health expenses incurred by the victim or her family as a consequence of your commission of those particular offenses in that case.

Fussell, 941 So.2d at 139.

This court vacated the defendant's sentences and remanded the case for resentencing with the instruction that if restitution was imposed, the trial court must specify the amount.

The supreme court agreed, stating:

We agree with the Third Circuit Court of Appeal that, due to a nonspecific restitution order, the sentences imposed upon Defendant by the trial court were indeterminate and, thus, invalid. See La. C.Cr.P. art. 879 (stating that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence”); La.C.Cr.P. art. 883.2. Accordingly, this case must now be remanded for resentencing on all convicted counts.

State v. Fussell, 06-2595, p. 25 (La. 1/16/08), 974 So.2d 1223, 1238 (footnote omitted).

State v. Vidrine, 19-210, pp. 10-13 (La.App. 3 Cir. 10/2/19), 280 So.3d 664, 670–72 (alterations in original).

As in Vidrine and Fussell, we find the trial court in the present case failed to specify the amount of restitution imposed. Thus, we vacate the sentence and remand the matter for resentencing. The trial court is instructed that if restitution is imposed, it must specify the amount of restitution.

Second, by ordering restitution to the “aggrieved party,” the trial court failed to specify to whom restitution was to be paid. In State v. Pope, 19-670, pp. 8-9 (La.App. 3 Cir. 6/10/20), 299 So.3d 161, 169, writ denied, 20-852 (La. 10/6/20), 302 So.3d 532, this court found that if restitution was imposed upon remand, the trial court must specify to whom restitution was to be paid. Accordingly, the trial court is instructed to specify to whom restitution must be paid, if it is imposed.

Third, the trial court ordered Defendant to “perform community service work at the direction of his probation officer.” In State v. R.D., 08-717 (La.App. 3 Cir. 12/10/08) (unpublished opinion) (2008 WL 5170121), this court addressed an instance wherein discretion was left to probation and parole. The trial court ordered R.D. to “submit to electronic monitoring or home incarceration as required by probation officer” as a special condition of probation. Id. at 1. The exact verbiage used in the trial court's ruling is shown in the following passage from this court's ruling:

For the offense of molestation of a juvenile, the trial court sentenced Defendant to serve ten years with the Department of Corrections, with five years suspended. The trial court put Defendant on supervised probation for five years, and, as a condition of probation, required that Defendant be “subject to electronic monitoring or home incarceration by Probation & Parole at their discretion ․ depending on the circumstances at the time.”

․

․ the failure of the trial court to specify whether Defendant would be subject to electronic monitoring or home incarceration, or both, rendered Defendant's sentence indeterminate and, therefore, illegal.

This court requires re-sentencing when the indeterminacy involves probation. See State v. Williamson, 04-1440 (La.App. 3 Cir. 3/2/05), 896 So.2d 302; State v. Van Winkle, 06-1636 (La.App. 3 Cir. 6/6/07), 964 So.2d 400.

Therefore, we vacate Defendant's sentence for molestation of a juvenile and remand the case to the trial court with instructions that it specify whether, as a condition of probation, Defendant will be subject to electronic monitoring, home incarceration, or both. Additionally, the trial court is ordered to specify the condiditons [sic] of the home incarceration. If electronic monitoring is imposed and any conditions are required, the trial court should specify those as well. See State v. Breaux, 05-358 (La.App. 5 Cir. 12/27/05), 920 So.2d 274.

Id. at 1–2.

As noted in R.D., the imposition of electronic monitoring and any conditions of such must be specified by the trial court. Other circuits have come to the same conclusion regarding the trial court's delegation of authority to probation and parole. For example, in State v. Arceneaux, 570 So.2d 215 (La.App. 5 Cir. 1990), the trial court placed the defendant on one year of active probation with the special condition of restitution to the victims. The probation and parole office was ordered to determine the amount of restitution. Id. The fifth circuit vacated the defendant's sentence after it determined, “La.C.Cr.P. art. 895 A allows the judge to impose conditions of probation, including restitution. He may not legally delegate that authority to the probation and parole office; and if he does, the sentence of probation is illegal.” Id. at 215–16.

The second circuit followed the same path. In State v. Ripley, 39,111, pp. 21-22 (La.App. 2 Cir. 12/15/04), 889 So.2d 1214, 1225, writ denied, 05-151 (La. 6/24/05), 904 So.2d 718, the court declared that the trial court improperly delegated its own necessary action by allowing the probation officer to determine the amount of restitution owed. Accordingly, this court finds that upon remand for resentencing in this case, the trial court is instructed to specify any community service hours Defendant must perform as a condition of his probation.

Defendant raises potential errors patent in brief. First, Defendant claims the trial court incorrectly denied Defendant diminution for good behavior. The trial court stated the following, in pertinent part:

The sentence is imposed is [sic] not an enhances [sic] sentence․I'm sorry, the sentence imposed is an enhanced sentence as defined in our law because the victim is under 13 years of age at the time of the commission of this offense. As required by Article 890.1 of the Code of Criminal Procedure I hereby inform you that the crime to which you have been convicted is not a crime of violence or an attempted crime of violence as defined in our law; this sentence is not subject to diminution for good behavior as the crime for which you have been convicted is a sex offense listed under the Code of Criminal Procedure Article 894.1[.]

In State v. Sewell, 22-798, p. 7 (La.App. 3 Cir. 3/22/23) (unpublished opinion) (2023 WL 2592018), writ denied, 23-572 (La. 2/14/24), 379 So.3d 25, this court found the trial court exceeded its authority when it stated that Sewell was “ ‘being sentenced under 15:537.’ ” This court cited a previous case wherein this court stated:

We first address whether the trial court “denied” diminution of sentence. Such a denial by the trial court would constitute error as the supreme court has held that the provisions of La.R.S. 15:537(A), which prohibits diminution of sentence for certain sex offenders, and the provisions of La.R.S. 15:571.3, which sets forth the guidelines for diminution of sentence for all prisoners, do not form part of the sentence. State v. Prejean, 08-1192 (La. 2/6/09), 999 So.2d 1135 (per curiam). The guidelines are instead directives to the Department of Corrections in computing an inmate's sentence. Id. See also State v. Fallon, 15-1116, p. 4 (La.App. 3 Cir. 4/6/16), 189 So.3d 605. Both the supreme court and this court have repeatedly stated that trial judges lack authority to deny diminution of sentence. See State v. Narcisse, 97-3161 (La. 6/26/98), 714 So.2d 698; Fallon, 189 So.3d 605. In cases in which the trial court has been found to deny diminution sentence [sic], this court has corrected the sentencing error. See, e.g., State v. Davis, 19-562 (La.App. 3 Cir 2/5/20), 291 So.3d 246, writ granted on other grounds, 20-392 (La. 6/3/20), 296 So.3d 1041; Fallon, 189 So.3d 605.

State v. Monceaux, 22-28, p. 6 (La.App. 3 Cir. 6/1/22), 340 So.3d 201, 206.

Id. The court ordered Sewell's sentence amended to delete the trial court's statement regarding diminution of sentence. Id. at 12. In accordance with Sewell, the trial court is prohibited from denying Defendant diminution of sentence.

Defendant also claims he was not properly advised of his sex offender notification requirements. Defendant acknowledges that the trial court ordered, as a condition of probation, that he comply with the requirements of the sex offender law. Defendant contends, however, that the trial court's order did not comply with La.R.S. 15:543(A), which requires him to be provided with written notification of the sex offender registration and notification requirements. In State v. Monceaux, 22-28, p. 20 (La.App. 3 Cir. 6/1/22), 340 So.3d 201, 213, this court remanded the case with instructions to the trial court to send Monceaux written notice of the registration and notification requirements within thirty days of its opinion. Accordingly, we instruct the trial court is instructed to comply with the sex offender notification requirements of La.R.S. 15:543(A) at resentencing.

Next, Defendant argues the trial court's imposition of a $2,000.00 fine “highlights the court's confusion as to the applicable sentencing law.” Defendant notes that no fine is allowed under the penalty provision for a victim under the age of thirteen while a fine is allowed under the lesser penalty provision for a victim aged thirteen or older. The only way a fine could have been imposed, Defendant argues, is if the trial court had sentenced Defendant to the lower penalty provision for a child aged thirteen or older. Otherwise, Defendant contends, the fine must be vacated.

We find, however, that the fine was imposed as a condition of probation rather than as part of the principal sentence. The supreme court has held that the “specific conditions of probation enumerated in Article 895 are not exclusive,” and a trial court has authority to “ ‘impose any specific condition reasonably related to ‘․ rehabilitation.’ ” State v. Rugon, 355 So.2d 876, 878 (La.1977). The supreme court further stated that this “authority is broad enough to include the exaction of a fine as a condition of probation.’ ” Id. Thus, the trial court's imposition of a fine as a condition of probation was proper in this case and does not show that the trial court was confused as to the applicable sentencing provision.

Defendant also claims that the “imposition of costs and fees in addition to incarceration is not authorized.” Defendant claims that although costs and fees may be imposed as conditions of probation, his “probation” will really be parole since it will not occur until after incarceration is completed. Defendant cites no authority for this statement, and this argument does not merit further consideration.

Defendant further claims the case should be remanded for a hearing as required by La.Code Crim.P. art. 875.1.  ² Effective August 1, 2022, prior to Defendant's October 1, 2024 sentencing, Article 875.1 provides:

A. The purpose of imposing financial obligations on an offender who is convicted of a criminal offense is to hold the offender accountable for his action, to compensate victims for any actual pecuniary loss or costs incurred in connection with a criminal prosecution, to defray the cost of court operations, and to provide services to offenders and victims. These financial obligations should not create a barrier to the offender's successful rehabilitation and reentry into society. Financial obligations in excess of what an offender can reasonably pay undermine the primary purpose of the justice system which is to deter criminal behavior and encourage compliance with the law. Financial obligations that cause undue hardship on the offender should be waived, modified, or forgiven. Creating a payment plan for the offender that is based upon the ability to pay, results in financial obligations that the offender is able to comply with and often results in more money collected. Offenders who are consistent in their payments and in good faith try to fulfill their financial obligations should be rewarded for their efforts.

B. For purposes of this Article, “financial obligations” shall include any fine, fee, cost, restitution, or other monetary obligation authorized by this Code or by the Louisiana Revised Statutes of 1950 and imposed upon the defendant as part of a criminal sentence, incarceration, or as a condition of the defendant's release on probation or parole.

C. (1) Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall conduct a hearing to determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. The court may consider, among other factors, whether any victim of the crime has incurred a substantial financial hardship as a result of the criminal act or acts and whether the defendant is employed. The court may delay the hearing to determine substantial financial hardship for a period not to exceed ninety days, in order to permit either party to submit relevant evidence.

(2) The defendant or the court may waive the judicial determination of a substantial financial hardship required by the provisions of this Paragraph. If the court waives the hearing on its own motion, the court shall provide reasons, entered upon the record, for its determination that the defendant is capable of paying the fines, fees, and penalties imposed without causing a substantial financial hardship.

D. (1) If the court determines that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents, the court shall do either of the following:

(a) Waive all or any portion of the financial obligations, except as provided in Paragraph E of this Article.

(b) Order a payment plan that requires the defendant to make a monthly payment to fulfill the financial obligations.

(2)(a) The amount of each monthly payment for the payment plan ordered pursuant to the provisions of Subsubparagraph (1)(b) of this Paragraph shall be determined by the court after considering all relevant factors, including but not limited to the defendant's average gross daily income for an eight-hour work day.

(b) If the court has ordered restitution, half of the defendant's monthly payment shall be distributed toward the defendant's restitution obligation.

(c) Except as provided in Paragraph E of this Article, during any periods of unemployment, homelessness, or other circumstances in which the defendant is unable to make the monthly payment, the court or the defendant's probation and parole officer is authorized to impose a payment alternative, including but not limited to substance abuse treatment, education, job training, or community service.

(3) If, after the initial determination of the defendant's ability to fulfill his financial obligations, the defendant's circumstances and ability to pay his financial obligations change, the state, the defendant, or the defendant's attorney may file a motion with the court to reevaluate the defendant's circumstances and determine, in the same manner as the initial determination, whether a modification of the monthly financial obligation imposed pursuant to this Article is appropriate under the circumstances.

E. Notwithstanding any other provision of this Article or any other provision of law to the contrary, a court may not waive nor forgive restitution due to a crime victim unless the victim to whom restitution is due consents to such an action.

F. If, at the termination or end of the defendant's term of supervision, any restitution ordered by the court remains outstanding, the balance of the unpaid restitution shall be reduced to a civil money judgment in favor of the person to whom restitution is owed, which may be enforced in the same manner as provided for the execution of judgments in the Code of Civil Procedure. For any civil money judgment ordered under this Article, the clerk shall send notice of the judgment to the last known address of the person to whom the restitution is ordered to be paid.

G. The provisions of this Article shall apply only to defendants convicted of offenses classified as felonies under applicable law.

H. Notwithstanding any provision of this Article or any other law to the contrary, if the financial obligations imposed upon a defendant would cause substantial financial hardship to the defendant or his dependents, the court shall not order that the defendant be incarcerated for his inability to meet those financial obligations. This provision shall apply to defendants convicted of traffic offenses, misdemeanor offenses, or felonies under applicable law.

Discussing Article 875.1, this court stated the following in State v. Lemay, 23-369, pp. 28-29 (La.App. 3 Cir. 12/20/23) (unpublished opinion) (2023 WL 8797499), writ denied, 24-23 (La. 6/19/24), 386 So.3d 673:

Paragraphs B and G of La.Code Crim.P. art. 875.1 make it clear that the article applies to any fine, fee, cost, restitution, or other monetary obligation imposed as part of a criminal sentence (principal) or as a condition of parole or probation in a felony case. The trial court is required, prior to imposing or enforcing a financial obligation, to conduct a hearing to determine whether payment in full would cause substantial financial hardship to the defendant or his dependents. The judicial determination of financial hardship may be waived by the court or the defendant. However, if the court waives the hearing, it must provide reasons on the record for its determination that the defendant is able to pay. If the court determines that a substantial financial hardship would be created on either the defendant or his dependents, it can waive all or any portion of the obligation (for restitution, the victim must consent) and order a monthly payment plan, half of which must be distributed toward a restitution obligation, if such were imposed.

In State v. Tucker, 22-735, p. 23 (La.App. 3 Cir. 5/31/23), 368 So.3d 187, 201, this court held that a defendant is not required to lodge an objection or file a motion to reconsider sentence on the basis that the trial court failed to comply with La.Code Crim.P. art. 875.1 in order to preserve the claim for review. Thus, Mr. Lemays's claim is properly before this court. In Tucker, 368 So.3d at 202, this court further found the trial court erred in failing to hold a hearing pursuant to La.Code Crim.P. art. 875.1 prior to imposing a $5,000 fine; hence, this court vacated the fine and remanded the case to the trial court for the required hearing. Similarly, Mr. Lemay was entitled to a hearing pursuant to La.Code Crim.P. art. 875.1 prior to the imposition of the financial obligations.

The court in Lemay vacated the financial obligations imposed and remanded the matter for a hearing. Thus, the trial court is instructed to comply with La.Code Crim.P. art. 875.1 before imposing any financial obligations upon Defendant.

Finally, Defendant argues that because he is indigent, the trial court erroneously imposed default time for non-payment of his financial obligations. The trial court ordered Defendant to serve six months in parish jail in the event he defaults on payment of his fines, fees, or costs.

In State v. Tucker, 22-735, pp. 24-25 (La.App. 3 Cir. 5/31/23), 368 So.3d 187, 201–02 (footnotes omitted), this court stated the following about default time:

Furthermore, courts have not put the onus on a defendant to raise his indigency when default time has been imposed pursuant to La.Code Crim.P. art. 884, which requires the trial court to impose a specific term of imprisonment when it imposes a fine or costs that are not paid. The issue has been considered an error patent:

The record indicates that Defendant is indigent. During the pre-plea, guilty plea, and sentencing proceedings, he was represented by a court-appointed attorney; and, on appeal, he is represented by the Louisiana Appellate Project. This court finds these facts are presumptive evidence of indigence. See State v. Jones, 535 So.2d 3 (La.App. 4 Cir.1988). Although we are amending the sentence to delete the fine and payment to the Public Defender's Office, the order to pay $150.00 costs for the crime lab (presumably court costs) still remains. Therefore, we likewise delete the portion of the sentence providing for a jail term in the event of default of payment of costs. The trial court is instructed to note the amendment in its court minutes.

State v. Belton, 11-948, pp. 4-5 (La.App. 3 Cir. 3/7/12), 88 So.3d 1159, 1162. See also State v. Duke, 11-688 (La.App. 3 Cir. 2/1/12), 84 So.3d 722, writ denied, 12-373 (La. 9/21/12), 98 So.3d 324; State v. Jackson, 53,497 (La.App. 2 Cir. 5/20/20), 296 So.3d 1156; State v. George, 94-2215 (La.App. 4 Cir. 4/26/95), 654 So.2d 813, writ denied, 95-1221 (La. 10/13/95), 661 So.2d 495.

When sentence was imposed in this case, Defendant was represented by privately retained counsel. As previously discussed, Defendant has since been determined to be indigent for purposes of appeal. Louisiana Code of Criminal Procedure Article 884 states the following about default time:

A. If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.

B. The provisions of this Article do not apply if the court has determined, pursuant to the provisions of Article 875.1, that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. In such cases, the provisions of Article 875.1 shall apply.

Thus, we instruct the trial court to consider the provisions of La.Code Crim.P. art. 884(B) before the imposition of any default time.

In sum, we vacate the sentence and remand the case for resentencing. We instruct the trial court that, if restitution is imposed upon remand as a condition of probation, it must specify the amount of restitution, specify to whom it must be paid, and follow the procedure set forth in La.Code Crim.P. art. 895.1. Furthermore, we instruct the trial court that, before any financial obligations and default time are imposed, the trial court should comply with the provisions of La.Code Crim.P. arts. 875.1 and 884. If community service is imposed as a condition of probation, the trial court is instructed that it must specify the amount of community service hours. We instruct the trial court that it is prohibited from denying diminution of sentence and that it must advise Defendant of the sex offender notification requirements in La.R.S. 15:543(A).

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the indictment against him was defective in several ways. The original indictment charged Defendant as follows:

BETWEEN OCTOBER 17, 2020 AND OCTOBER 19, 2020, in the Parish of Avoyelles, DALVIN WARREN committed the offense of R.S. 14:81 entitled “INDECENT BEHAVIOR WITH JUVENILE” by committing a lewd and lascivious act upon a juvenile or in the presence of “A.C.D.”, a minor under the age of 17, with the intent of arousing or gratifying the sexual desires of either person, the defendant being over the age of 17 years[.]

On the morning of trial, the State filed an amended indictment to add the victim's age, “12,” and her date of birth, “10.24.2007.” Although the amended indictment was emailed to counsel and to the court, the State noted that it was “timestamped as filed” by the clerk. According to the State, the amended indictment was placed in a stack of bills and was not time-stamped until just prior to the calling of the case for trial. As will be discussed more thoroughly below, it is unclear whether Defendant objected to the amendment, but, at most, Defendant objected “generally.”

Lack of Objection

The State argues Defendant failed to preserve this issue for appeal by failing to adequately object to the charging instrument prior to the commencement of trial. Defendant, however, cites a case wherein the supreme court addressed a defective indictment as an error patent, even though no objection had been raised below. State v. Edwards, 283 So.2d 231 (La.1973).

As the State argues in brief, it appears that, at most, Defendant entered a “general objection” to the amended indictment. The State explains that it is unclear whether the “general objection” applied to the amended indictment or another motion that had been discussed by the parties. Even if Defendant's “general objection” pertained to the amended bill, the State argues that Defendant failed to assert the grounds for his objection and is limited on appeal to the grounds articulated at trial.

In State v. Draughn, 05-1825, pp. 60-61 (La. 1/17/07), 950 So.2d 583, 623, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the supreme court addressed the lack of an objection to a defective indictment:

The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Gainey, 376 So.2d 1240, 1243 (La.1979). A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Williams, 480 So.2d 721, 722, n. 1 (La.1985); La.C.Cr.P. art. 465, Official Revision Comment (a). Given counsel's failure to file a motion to quash, the defendant arguably waived any claim based on the allegedly defective indictment.

Notwithstanding the procedural bar to the claim, the Louisiana Constitution of 1974 provides that an accused shall be informed of the nature and cause of the accusation against him. La. Const. Art. I, § 13. That requirement is implemented by La.C.Cr.P. art. 464, which provides:

The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

The supreme court found that since Draughn was properly charged with a short-form indictment, he was made aware of the nature of the charges against him. Although a short-form indictment is not permitted for the crime charged in the present case, we find Draughn's discussion of “fair notice” applies here. See La.Code Crim.P. art. 465.

Defendant filed a motion for bill of particulars but did not file a motion to quash the charging instrument. Thus, Defendant did not attack the charging instrument on any specific grounds. According to Draughn, however, a post-verdict attack may still be viable if the indictment failed to give fair notice of the offense charged. Thus, we must determine whether Defendant was given fair notice of the charges against him.

First Claim – Indictment Failed to Specify How Offense Was Committed

Defendant first argues the indictment is defective because it alleges that he committed an act “ ‘upon a juvenile or in the presence of ACD” and because it fails to specify whether he intended to arouse himself or ACD. As discussed above, Defendant cites Edwards, 283 So.2d 231, as a case wherein the supreme court recognized a similar error as an error patent. Like Defendant, Edwards was charged with indecent behavior with a juvenile. The court in Edwards stated the following:

The bill of information filed against Mitchell Edwards simply recites:

“ * * * That Mitchell Edwards * * * on the 17 day of the month of September, in the year of our Lord One thousand nine hundred and seventy two, in the Parish, District and State aforesaid, violate the laws of Louisiana by indecent behaviour (sic) with a Juvenile contrary to the form of the Statute of the State of Louisiana * * *.”

Whereas, R.S. 14:81 defines indecent behavior with juveniles as follows:

“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child's age shall not be a defense.

“Whoever commits the crime of indecent behavior with juveniles shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.”

Under our Code of Criminal Procedure, Article 464, an indictment “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

Some offenses specifically enumerated in Article 465 C.Cr.P. may be charged in the short form of indictment. Indecent behavior with juveniles is not so listed in this article. Hence, it is one of the offenses which cannot be charged in the short form.

The essential elements of the crime of indecent behavior with juveniles (R.S. 14:81), as set out in the statute, are: (1) the commission by anyone over the age of seventeen; (2) of any lewd or lascivious act; (3) upon the person or in the presence; (4) of a child under the age of seventeen; (5) with the intention of arousing or gratifying the sexual desires of either person.

It is evident, and this Court has so held, that the crime denounced in R.S. 14:81 may be committed in two ways: ((1) by the commission of a lewd or lascivious act upon the person; or (2) by the commission of a lewd or lascivious act in the presence of any child under the age of seventeen. The bill of information herein did not inform the accused in which way he was charged with having committed the offense. See State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950); State v. Hebert, 205 La. 110, 17 So.2d 3 (1944).

Furthermore, it is obvious that the bill of information charges none of the essential elements of the crime. Therefore, the bill of information fails to comply with the mandate prescribed by Section 10 of Article 1 of the Louisiana Constitution that “the accused shall be informed of the nature and cause of the accusation against him.” See State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970).

The bill of information is fatally defective thereby rendering it invalid.

For the reasons assigned, the conviction and sentence are annulled and set aside, and the defendant is ordered discharged.

Id. at 232–33 (footnotes omitted).

The State responds that the bill of information in Edwards was in “short form,” which, according to La.Code Crim.P. art. 465, is not proper for charging indecent behavior with a juvenile. Furthermore, the State contends the bill of information in Edwards did not reference the statute alleged to have been violated, did not identify the victim by name or age, and “did not indicate in any way what it means to ‘violate the laws of Louisiana by indecent behaviour (sic) with a juvenile.” The bill of information filed in the present case, the State argues, was not in short-form and is distinguishable from the bill in Edwards.

Similarly, State v. Dugas, 94-769 (La.App. 3 Cir. 2/1/95), 649 So.2d 1193, addressed the defective bill of information strictly as an error patent. Dugas involved the charges of aggravated oral sexual battery and molestation of a juvenile. This court first found error in the charging of these offenses by short-form indictment since they are not listed in La.Code Crim.P. art. 465. Id. Since the offense of molestation of a juvenile contains similar wording to the offense of indecent behavior with a juvenile, we will concentrate on Dugas’ discussion of molestation of a juvenile:

Louisiana Revised Statutes 14:81.2 provides, in pertinent part:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

The bill of information is also insufficient under the Edwards standard as there are two ways to commit the crime and the defendant was not informed in which way he was charged with having committed the crime. This is the same issue presented in State v. Edwards, 283 So.2d 231 (La.1973).

Although we entertain serious misgivings about the legal validity of the bills of information, the errors appear to be errors of form. Any error in the form of the indictment not raised pre-trial is considered waived. Furthermore, as this error is not raised by the defendant on appeal, nor did the defendant request a bill of particulars or file a motion to quash, it can be assumed the defendant was adequately informed of the nature and cause of the accusation against him. See State v. Namias, 357 So.2d 494 (La.1978).

Id. at 1195.

The present case is distinguishable from Dugas in several ways, the first of which is that the error is raised in this case. Secondly, Defendant filed a motion for bill of particulars in this case. The motion was set for hearing on October 19, 2021. The minutes of October 19, 2021, make no mention of the bill of particulars, but they do state that “COUNSEL STIPULATED THAT DISCOVERY HAS BEEN PROVIDED BY THE STATE RESERVING THEIR RIGHTS TO CHALLENGE THE SUFFICIENCY OF SAID DISCOVERY.” Defendant points to nothing in the record wherein a challenge was made to the adequacy of the charging instrument, nor has this court found any such challenge. Additionally, no motion to quash was filed. Thus, this case is similar to Dugas in that there is nothing in the record to indicate Defendant was not adequately informed of the charges against him.

In State v. Free, 26,267 (La.App. 2 Cir. 9/21/94), 643 So.2d 767, writ denied, 94-2846 (La. 3/10/95), 650 So.2d 1175, the second circuit addressed an assigned error regarding the denial of a motion to quash alleging an insufficient charging instrument:

Free correctly argues that, according to the jurisprudence, the amended indictment is fatally defective. State v. Hebert, 205 La. 110, 17 So.2d 3 (1944); [State v.]Prejean, [216 La. 1072, 45 So.2d 627 (1950)]; State v. Edwards, 283 So.2d 231 (La.1973); State v. Terregano, 336 So.2d 859 (La.1976). However, considering the underlying facts peculiar to the instant case, the defendant has not suffered the prejudice that the holding of Hebert and its progeny was designed to overcome.

The amended indictment filed against Free tracks the language of the statute and identically charges each of the six counts as follows:

Between May, 1991 and February 29, 1992, [the defendant] did willfully and unlawfully violate the provisions of LSA–R.S. 14:81, relative to indecent behavior with juveniles in that he being over the age of seventeen, committed a lewd or lascivious act upon the person or in the presence of [the victim], a child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.

(Our emphasis.)

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. LSAC.Cr.P. Art. 464; Edwards, supra. The charged offense may be committed in two distinct ways: (1) by the commission of a lewd or lascivious act upon the person; or (2) by the commission of a lewd or lascivious act in the presence of any child under the age of seventeen, with the requisite intent. LSA–R.S. 14:81. An indictment for indecent behavior with juveniles must inform the accused in which way he is charged with having committed the offense, whether upon the person or in the presence of the person. Otherwise, the defendant would go into court without any knowledge, insofar as the disclosures in the indictment are concerned, of the kind or nature of acts intended be relied on as constituting the offense charged. Hebert, supra; Edwards, supra.

An indictment which charges indecent behavior with juveniles in the alternative language of the statute does not adequately inform an accused of the nature and cause of the accusations against him. Hebert, supra; Prejean, supra; Edwards, supra. Such an indictment is fatally defective and should be quashed. Hebert, supra; Edwards, supra. A deficiency of this sort may be cured by a response to a motion for a bill of particulars. State v. Gainey, 376 So.2d 1240 (La.1979).

However, in the instant case, the original indictment for molestation of juveniles included specific factual allegations of sexual misconduct. The elements of the lesser offense of indecent behavior with juveniles mirror the elements of molestation of juveniles, except that lesser offense deletes the additional criminal element of:

by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

LSA–R.S. 14:81.2. According to the state's argument during the hearing on the motion to quash, the amended indictment not only removed the additional elements from the charged offenses, but also charged the defendant with additional criminal conduct:

All of [the specific factual allegations] were deleted. However, the conduct to be proved at trial is the same as previously alleged, in addition to other acts which we believe are lewd and lascivious. This is merely a short form indictment. The evidence is the same as it always has been. And I think the original indictment on the molestation counts certainly inform the defendant of the nature of the proof to be made at trial. We are not saying, by amending the indictment that he did not do these things. In fact, the evidence will be that he did commit these various acts, in addition to other conduct which may or may not [comprise] the crime of indecent behavior.

The crime of indecent behavior with juveniles cannot be charged in the short form. However, by virtue of open file discovery, the defendant was aware of all the evidence the state had at its disposal in this prosecution. He was not only aware of the nature and cause of the accusation against him so that he could prepare his defense, but he had also been fully informed of the nature of the evidence by which the state expected to prove the charges. See Prejean, supra, at 630,. By the comments in the record, the state admitted that the amended indictment charged the defendant with any and all allegations of sexual misconduct with the two specified victims during the identified period. Therefore, the defendant may plead these convictions as a bar to any subsequent prosecution for alleged misconduct with either of the victims during the identified time period. Prejean, supra, at 632,; Terregano, supra, at 861,.

Article 1, § 13, La. Const.1974, requires only that the accused be informed of the nature and cause of the accusation against him. The constitutional provision that a defendant be informed of the nature and cause of the accusation is not to be restricted to mean that he must be so informed by indictment. Gainey, supra, at 1242, (emphasis in original). If the indictment sufficiently identifies the conduct charged and the statute violated, a motion to quash will not be sustained. Gainey, supra, at 1244,. The deficiency in the bill of information in Gainey was cured by the response to the motion for a bill of particulars.

Under the particular circumstances of the instant case, the defendant had full knowledge not only of the nature and cause of the charges against him, but also of the nature and extent of the evidence prior to the amendment of the indictment. Cf. Prejean, supra, at 632,; Gainey, supra, at 1240–2,.

Id. at 774–75 (alterations in original).

In State v. Ellis, 38,740, pp. 2-4 (La.App. 2 Cir. 8/18/04), 880 So.2d 214, 217–18, the second circuit again addressed a raised error concerning the sufficiency of two charges of indecent behavior with juveniles. After discussing Free, the court in Ellis stated:

In the case sub judice, the state concedes that the final amended bill of information tracks the alternative language of La. R.S. 14:81, that is, it charges that defendant committed a prohibited act “upon the person or in the presence of (the victim)” and thus, is defective. See State v. Free, supra. However, as was the case in Free, by virtue of discovery, the previous versions of the bill of information, and the state's answer to defendant's application for a bill of particulars, defendant was aware of all of the evidence the state intended to use to establish its case against him. Likewise, he was aware of the nature and cause of the accusations against him so that he could prepare his defense. As noted by this court in State v. Free, supra at 775,, the constitutional mandate that a defendant be informed of the nature and cause against him does not require that he may only be so informed by indictment [or information]. Under the facts and circumstances of this case, defendant had full knowledge of the nature and cause of the charges against him, as well as of the nature and extent of the evidence the state had with which to prove its allegations.

Furthermore, defendant has not claimed any surprise, nor has he shown any prejudice due to this alleged defect. State v. Comeaux, 408 So.2d 1099 (La.1981). A defendant may not complain of technical insufficiency in an indictment or bill of information for the first time after conviction, when the defendant is fairly informed of the charge against him and there is no prejudice caused by the defect. Id.; State v. Shelton, 545 So.2d 1285 (La.App. 2d Cir.1989); State v. Johnson, 02–254 (La.App. 5th Cir.06/26/02), 822 So.2d 840. This assignment of error is without merit.

See also State v. Jarrell, 07-412 (La.App. 1 Cir. 9/19/07) (unpublished opinion) (2007 WL 2726718), writ denied, 07-2065 (La. 3/7/08), 977 So.2d 897, where the court found by virtue of open-file discovery, the defendant was aware of all the evidence the State had at its disposal in the prosecution.

Likewise, the present Defendant was granted open-file discovery and was aware of all the evidence the State had at its disposal. Although Defendant filed a motion for bill of particulars, he did not file a motion to quash based on any insufficiency in the indictment and did not complain that discovery was inadequate. Thus, even though the prior indictment filed in the present case did not include specific allegations of sexual conduct like the original bill of information in Free, this court finds Defendant was fairly informed of the charges against him and has not shown prejudice because of the deficiency in the indictment. Further, the trial court instructed the jury that it must find Defendant committed a lewd or lascivious act “upon the person of A.C.D.” without including the alternative language.

Defendant also complains that the bill of information failed to specify whether he intended to arouse himself or ACD. In State v. Terregano, 336 So.2d 859, 861 (La.1976), the supreme court found a bill of information was valid even though it did not specify whether the defendant intended to arouse or gratify his sexual desire or the victim's sexual desire.

At the time Terregano's offense was committed, the offense of indecent behavior with a juvenile included the phrase “with the intention of arousing or gratifying the sexual desires of either person.” See Edwards, 283 So.2d at 232. As set forth in the above excerpt, the charging instrument charged Terregano with “the intent of arousing or gratifying sexual desire.” Even though this wording is slightly different than the statute, the wording used in Terregano nonetheless failed to specify whose desire Terregano intended to arouse. The State argues that Terregano illustrates that it is not necessary for a bill to specify whose sexual desire a defendant intended to arouse in order to put the defendant on notice of what he is charged with. As the court found in Terregano, the bill in the present case sufficiently informed Defendant of the nature and cause of the charge against him.

Considering the cases above, we find Defendant failed to show that he was unaware of the charges against him. Defendant did not raise any claim regarding the inadequacy of the charging instrument prior to trial. Although Defendant filed a motion for bill of particulars, he later stipulated that discovery had been provided by the State, reserving his right to challenge the sufficiency of discovery. Defendant filed another motion and order for discovery, which was set for hearing on September 20, 2022. According to the minutes of September 20, 2022, the court deemed discovery satisfied. It appears that the other motions for discovery all dealt with the victim's medical records. In brief, the State contends that “[t]hrough open file discovery ․ the defendant was aware of all accusations and their evidentiary basis, was adequately notified of the nature of and charges against him, and had notice of all facts to be used in the prosecution of his case.” Without any pretrial claim regarding the sufficiency of the charging instrument and without any specific showing of prejudice, we find this claim lacks merit.

Second Claim – State Improperly Avoided Limits of Double Jeopardy

Defendant argues (footnotes omitted):

[W]here the Indictment was as non-specific and devoid of facts as described above, the State improperly avoids the limits of double jeopardy for the allegations in the five offenses filed in five separate cases, all arising out of the same transaction, against Mr. Warren. This trial is illustrative of the problem. The State submitted all of ACD's allegations to the jury with the hope that something would stick and the jury would guess which pieces were meant to prove this charge.

Due Process requires the State to be more definitive in the Indictment, particularly where the statute is broad and can be violated in many ways. Because the State's Indictment did not specify what lewd and lascivious act allegedly was committed on or in the presence of ACD, it prevents application of the “additional fact” test for double jeopardy, and allows the same alleged acts to constitute the allegation of pornography involving a juvenile, contributing to the delinquency of a minor, first degree rape, and/or computer aided solicitation of a minor, all without the need for proof of an additional fact. On a proper indictment, this case was subject to a double jeopardy challenge or could be the basis for double jeopardy claim on the other pending charges.

This court has stated the following regarding the standard for determining double jeopardy:

The Louisiana Supreme Court has very recently announced that Louisiana courts “are bound only to apply the standard established by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) to protect against double jeopardy[.]” State v. Frank, 16-1160 (La. 10/18/17), 234 So.3d 27. Under the Blockburger test, “there is no double jeopardy ․ where each provision requires proof of an additional distinct element that the other does not.” State v. Cooley, 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87 So.3d 285, 295, writ denied, 12-1008 (La. 10/26/12), 99 So.3d 640. In other words, “a defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.” Frank, 234 So.3d at 30, (citing State v. Balentine, 47,858, p. 2 (La.App. 2 Cir. 7/10/13), 119 So.3d 979, 985 (Drew, J., dissenting)).

State v. Hampton, 17-383, pp. 11-12 (La.App. 3 Cir. 11/15/17), 259 So.3d 1125, 1132 (alterations in original).

State v. Johnson, 23-510, p. 17 (La.App. 3 Cir. 3/27/24), 413 So.3d 1080, 1092, writ denied, 24-483 (La. 11/6/24), 395 So.3d 873. Since the elements of indecent behavior with a juvenile are clearly set forth in the charging instrument in this case, Defendant will be able to adequately raise any double jeopardy claim that may arise if he is convicted of multiple offenses arising out of the same criminal incident. Thus, we find this claim lacks merit.

Third Claim – Neither Original Nor Amended Indictment Charged Defendant with Indecent Behavior of a Child under the Age of Thirteen

Defendant contends that both the original and amended indictments charged him with committing indecent behavior against “ ‘a minor under the age of seventeen,’ an offense that is tried by a six-person jury and with a maximum sentence of seven years.” Although both the original and amended indictments cite to La.R.S. 14:81, the general statutory provision for indecent behavior with a juvenile, Defendant claims that neither cites to the specific penalty provisions. The penalty provisions for La.R.S. 14:81 state the following:

H. (1) Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

(2) Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

Defendant contends the State's amendment to add the victim's age and date of birth did not amend the charge against him to indecent behavior with a juvenile under the age of thirteen because the amendment did not remove the language “a minor under the age of seventeen.” Without citing any authority, Defendant argues:

Adding ACD's birthdate alone did not invoke the more serious charge as ACD was both under the age of seventeen and under the age of thirteen. To charge under the more severe section, the State was required to clearly state the allegation and remove the reference to “under 17.”

Defendant contends the error in the indictment “mistakenly resulted” in him being tried by a twelve-person jury. The penalty provision set forth in La.R.S. 14:81(H)(1) calls for a sentence with or without hard labor, necessitating a trial by jury composed of six jurors. La.Code Crim.P. art. 782(A). A sentence imposed under La.R.S. 14:81(H)(2), however, must be served at hard labor, necessitating a trial by jury composed of twelve jurors. La.Code Crim.P. art. 782(A). Additionally, the maximum sentence under La.R.S. 14:81(H)(1) is seven years, while the maximum sentence under 14:81(H)(2) is twenty-five years.

The State responds that its amendment to the indictment to include the victim's age and date of birth “did not change the substance of the indictment, raise new allegations, or create ambiguity of the nature of the crime in which the defendant was charged.” Additionally, the State contends that the citation to La.R.S. 14:81 rather than to 14:81(H)(2) did not create a prejudicial error. If the court finds it was an error, the State asserts the error was clerical in nature, not substantive. Citing La.Code Crim.P. art. 464, the State argues that a “clerical error in the bill does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice.” The State concludes:

Dalvin Warren was not mislead to his prejudice as to the nature and cause of the accusation against him – it was clear he was charged with indecent behavior with a juvenile, and he knew from the outset that the child was under 13 years of age, both through open file discovery and the fact that she was his step-granddaughter.

Law and Analysis

Recently, the supreme court addressed a raised error regarding the bill of information's failure to specify the victim's date of birth and failure to specify which of two penalty provisions would apply:

Defendant was charged with violating La. R.S. 14:89.1(A)(2), aggravated crime against nature when the victim (defendant's 12-year-old daughter in this instance) is under the age of eighteen. However, the bill of information was incomplete in that it failed to list the victim's date of birth, nor did it reference which of two potential penalty provisions, La. R.S. 14:89.1(C)(1) or La. R.S. 14:89.1(C)(2), would apply. See generally Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362–63, 147 L.Ed.2d 435 (2000) (quoting with approval Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (“[o]ther than the fact of a prior conviction, any fact that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”) (emphasis added). Defendant was convicted after the jury was instructed under subsection (C)(2), and then sentenced accordingly. Under the circumstances, the court of appeal was correct to find the charging instrument defective, as a fact that significantly increased the maximum penalty for the crime—the vicitm's age—was not charged in the bill of information. Such a defect runs afoul of the clear language of Apprendi requiring such facts be charged, and the court of appeal was correct to find reversible error. The court of appeal erred, however, in fashioning its remedy, i.e. in remanding for a new trial.

․

Accordingly, we reverse the court of appeal and reinstate defendant's conviction, and remand for resentencing under La. R.S. 14:89.1(C)(1). See State v. Susan, 54,887 (La. App. 2 Cir. 3/8/23), 357 So.3d 1000, writ denied, 2023-00412 (La. 10/3/23), 370 So.3d 1071.

State v. Chester, 24-207, pp. 1-4 (La. 6/27/25), 413 So.3d 384, 385–87 (footnotes omitted). See also State v. Rippenkroeger, 24-766 (La.App. 1 Cir. 8/1/25), 417 So.3d 1274, where the first circuit found the trial court committed an Apprendi violation by sentencing the defendant under the increased penalty provision when the bill of information did not include the victims’ dates of birth and did not reference the increased penalty provision.

Unlike Chester, the present victim's age and date of birth were set forth in the amended indictment filed in the present case. In Dugas, 649 So.2d at 1194, this court found that including the victim's age in the bill of information sufficiently informed Dugas that he was being charged with committing an aggravated sexual battery on a victim under the age of twelve. In State v. Gragg, 22-377 (La.App. 3 Cir. 9/21/22), 348 So.3d 254, the bill of indictment set forth the victim's birthdate but did not refer to the enhanced penalty provision for a victim under thirteen and did not specifically allege that the victim was under thirteen at the time of the offense.

In this case, the State should have explicitly noted in the bill of indictment that the enhanced sentence provision in La.R.S. 14:89.1(C)(2) was applicable to Defendant, and the trial court should have included a jury instruction as to whether K.M. was under the age of thirteen at time of the offense. However, like [State v.] Ardoin, [10-1018 (La.App. 3 Cir. 3/9/11), 58 So.3d 1025, writ denied, 11-653 (La. 10/14/11), 74 So.3d 218,] these errors are harmless. The indictment clearly stated that the victim, K.M., was born on August 21, 2000, and that the criminal acts occurred during the period of August 2007 through February 2015; the written jury form addressed the age findings required for application of the enhanced sentencing provision; the record evidence was sufficient for a rational trier of fact to conclude that the State proved beyond a reasonable doubt that K.M. was under the age of thirteen years old at the time of the offense; and the jury specifically found that K.M. was under the age of thirteen at the time of the offense.

Id. at 265.

As in Gragg, neither the original nor the amended indictments filed in the present case specified the “under thirteen” penalty provision for indecent behavior with a juvenile and neither specifically included the words “under the age of thirteen.” However, as in Gragg, the amended indictment in the present case clearly included the victim's age and date of birth. Furthermore, the trial court in the present case instructed the jury that in order to convict Defendant of indecent behavior with a juvenile who is under the age of thirteen, it must find the victim was under the age of thirteen. The jury's verdict also included a specific finding that the victim was under the age of thirteen.

Additionally, Defendant requested the following special jury instruction:

Defendant request[s] that the total statute including all penalties provisions under LSA R.S. 14:81, be read to the Jury, as per Defendant's request herein and for reasons that the violation of LSA R.S. 14:81(H)(2)-requires a mandatory term of imprisonment at “hard labor” for not less than two (2) nor more than twenty-five (25) years.

Furthermore, in his pre-sentence memorandum, Defendant's counsel acknowledged that Defendant was being sentenced under the penalty provision for a victim under the age of thirteen. Accordingly, Defendant clearly understood that the increased penalty provision was applicable in this case, requiring he be tried by a jury of twelve persons.

For the foregoing reasons, we find the State's failure to charge the specific penalty provision was harmless in light of its inclusion of the victim's age and date of birth in the indictment, the trial court's jury instruction that the jury must find the victim was under the age of thirteen, and the jury's specific finding that the victim was under the age of thirteen. Moreover, the victim testified at trial that she was twelve years old when the incident at issue occurred.

Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the “trial court erred in denying his motion to exclude Curtis Gunter's testimony for non-compliance with La.Code Crim.P.. art. 719 which stonewalled the defendant and prevented his defense.” As will be discussed, Defendant did not preserve this issue for review. The discussion is lengthy, however, because of the arguments raised in brief and the extensive discussion of the issue at trial.

Proceedings at Trial

This court notes that Curtis Gunter was one of the potential witnesses regarding whom the trial court questioned prospective jurors about. Additionally, the State named Detective Gunter as one of the witnesses that needed to be sequestered. Despite these prior mentions of Detective Gunter, on the third day of trial, defense counsel asserted to the trial court that it had just learned about Detective Gunter that morning. Defense counsel informed the trial court that the defense had just been provided a “CV” for Curtis Gunter, a witness the defense claimed was an expert who testified all over the country. The defense objected to the State's failure to notify it in discovery that Detective Gunter would be called as an expert. When the trial court mentioned that Detective Gunter was on the list given by the State earlier in trial, defense counsel responded:

Well they can list whoever they want to in the trial, and we can object for reasons that I'm objecting to now. I could have done it then as well and at that point maybe you could have declared a mistrial, but we elected not to do that because that's our tactical advantage to come in and say, hey if we're going to play by the rules we're going to take fair advantage of those rules, all of which includes Mr. Gunter now needing to be excluded.

Although the State acknowledged that Detective Gunter brought his “CV” with him, the State claimed that Detective Gunter had never been tendered as an expert. The State further claimed that Detective Gunter was mentioned throughout discovery “because he is the person that performed the forensic dump.” Emphasizing that Detective Gunter's “CV” was not a report, one of the prosecutor's tore up the “CV.” The State further explained:

Your Honor, he provided a cellphone dump which the defense has had since discovery was provided to them. They had the entire dump, otherwise they should have objected to this yesterday whenever Cammack was going through the dump. They've had this and Mr. Gunter is recognized in the report several times. He's on the evidence log which was admitted as a joint exhibit yesterday. He's throughout discovery and this only applies if a generated report was written, which we do not have because he's never generated a “report,” what was generated has been provided to defense, they have it.

When defense counsel noted that Detective Gunter was not listed on the index of all discovery, the State explained that Detective Gunter conducted “a forensic dump” but did not generate a report. The State further explained that Detective Cammack's report states that he received “the forensic download captured on a purple microcenter USB drive and the physical devises [sic] from office Curtis Gunter.”³ Defense counsel responded, “That's fine, where is the report?” The State responded, “It was provided, that's the dump.” After defense counsel again asked for Detective Gunter's report and was again told Detective Gunter did not create a report, defense counsel stated:

That's right. So he's going to come in here and so we're not going to give them a report and we're not going to call him expert so we can get him in the side door, under the side of tent [sic] and let him testify about all of this[.]

One of Defendant's other attorneys stated that even though they were given a “dump,” they were not given any of the necessary requirements of La.Code Crim.P. art. 719, such as “a list of reasons [for] his conclusions and reports.”

When defense counsel contended that Detective Gunter's testimony would actually be “opinion” testimony rather than simply explanatory testimony, the State responded, “He's explaining it in the same way that detective Cammack explained it yesterday when it went into evidence without objection, he just happens to be a little bit smarter.” The State asserted the following as the purpose of Detective Gunter's testimony: “Your Honor, the purpose of his testimony, he is the one who did the forensic extraction, okay. He is going to say I did the forensic extraction; this is what I discovered, this is what is relevant to this case. This is what it means.” The State reiterated that Detective Gunter was not an expert.

When the trial court ordered the State's discovery responses to be unsealed in order to determine whether Detective Gunter was mentioned, one of Defendant's counsels acknowledged that Detective Gunter's name was mentioned and acknowledged that the “dump is in there.”

Defense counsel responded:

So the situation is, no matter what title or designation or what they claim they are going to call him for, he is by their own admissions on the document she tore up several times, a forensic examiner. When an individual is listed as such on the eve of trial, then these laws apply and to bring him in at this point and say well he's not going to testify about opinion on a dump, he's going to testify by facts is preposterous. Okay, he's got to rely upon his expert opinions and his talent, how did you take the gallbladder out doc, well I had a anesthesiologist there, I had blood pressure here, I had all these component parts and I was able to extract from the patient an appendix. Okay, now he's an expert, well no he's just a farmworker, no he's not he's a doctor. This is an expert, he's a forensic examiner, it's what he does around the state and he's quite effective, you know no problem. If we would have been given his report under Melendez-Diaz we could have gotten our expert up here too to say he was wrong on certain factual findings and methodologies that he used. To put him on the witness stand now deprives the defendant of his right of confrontation because he doesn't have a real right of confrontation. He doesn't have the sophisticated backing now through his attorney's to be prepared to take on a cross examination of this expert. You can call him just a fact finder, he's not, he's an expert. Thank you, Judge.

The trial court ruled as follows:

I'm going to permit the witness to testify in this case for the following reasons. Number one, discovery is ongoing and it has been provided. The witness Curtis Gunter was listed earlier in these proceedings from day one, I questioned the witness about the name Curtis Gunter earlier, there was never any mention about whether he should or should not testify or that there was anything lacking as far anybody's rights being violated and whether or not Melendez-Diaz notice was required. There is no report provided by this witness, there was no particular motion that a report should be required because he's an expert. I am not considering him to be necessarily qualified as a “expert,” he did handle the “dump” in this case and has special knowledge that would be pertinent to the facts of the case. I do not find that this case rises to the level where Melendez notice will be required of the witness and I'm going to deny any motion that he be, that Gunter be stricken from the record of this case as a witness.

Referring to Detective Cammack's statement during his own testimony that an “expert” was needed to explain some things, defense counsel insisted the jury be told that Detective Gunter was not an expert in the case. The trial judge refused to give such a charge to the jury, reasoning that Detective Cammack did not decide who was and who was not an expert. Defense counsel “assign[ed] [as] error” the trial court's ruling and then subsequently moved for a mistrial. Defense counsel argued that Detective Gunter was being “snuck in as an expert,” and the defense had no idea what Detective Gunter was going to say. The State objected, contending it was the defense's fault for not looking at the information provided in discovery.

When the trial court asked the basis for the request for mistrial, defense counsel asserted:

It's an irregularity in the proceeding Judge that will not allow us to move forward. Mr. Warren is strapped with having to have a review on this ruling that would be prejudicial to him if he doesn't and financially he cannot continue this litigation as such. It would defectively and fundamentally deprive him of his due process rights, and he's entitled to have whether they went to call Mr. Gunter an expert or not, somebody come in here and his [sic] give his defense as well. It's called fair play.

In response, the State argued, “Your Honor, this is not grounds for a mistrial. They've had all of the information, they conceded that they did have it. Your Honor, that's not a grounds [sic] for a mistrial.” Finding no “illegal defect in the proceedings which would make a judgment upon a verdict reversible as a matter of law, the trial court denied the request for a mistrial. Before Detective Gunter's testimony, defense counsel stated that the defense would “like to re-urge that no acquiesces [sic] in the ruling earlier.” The trial court stated that the record would reflect such.

Detective Gunter testified that he was a digital forensic analyst with the Rapides Parish Sheriff's Office. When asked to give the jury a brief professional background, Detective Gunter replied: “I've been in law enforcement for over twenty one years. In the past twelve years I've been assigned to Rapides Parish Sheriff's Office criminal investigation division, during which time I have became [sic] a digital forensic examiner and analysis [sic].” Detective Gunter described his job duties as “[c]ell phone and computer extractions and analysis.” Cellebrite, the detective explained, was a company that made digital forensic software. Defense counsel interjected, and the following colloquy took place:

BY MR. ANGELO PIAZZA [(Defense Counsel)]:

Your Honor, if I may at this point I just want to reiterate our previous colloquy on the record and that he is not being offered as an expert, but as an investigator.

BY MS. BERTHOLL [(Prosecutor)]:

Your Honor, I have not tendered him as such.

BY MR. ANGELO PIAZZA:

I just want to make sure we understand what we're talking about.

BY MS. DONNAGHEY [(Prosecutor)]:

(UNINTELLIGIBLE).

BY THE COURT:

I don't think there's been

BY MS. BERTHOLL:

He's not tendered.

BY THE COURT:

He's not being tendered.

BY MR. ANGELO PIAZZA:

He's not being tendered as an expert and that's fine, I'll take that Judge. Thank you.

Detective Gunter testified that he was contacted by Detective Glenn Cammack on October 20, 2020, to assist with obtaining a forensic image from two cellphones and an iPad. After performing the extractions, Detective Gunter provided a copy to Detective Cammack. When asked if he completed “a report wherein you gave an opinion as to this information,” Detective Gunter replied, “No, I did not,” and explained:

Because this was an agency assist to begin with and usually in those situations its, the phone is dropped off along with legal demand, I preform [sic] the extraction, I give the officer a copy of it, I do not know their case as well as they do, so what is not pertinent to me might be pertinent to them and I do anywhere from five to eight hundred cell phone extractions a year and I simply do not have time to go through every device.

Detective Gunter testified that the week before trial, Detective Cammack asked him for specific dates and specific information. Detective Gunter discussed a nine-minute FaceTime call extracted from “A.D.’s” phone. The call took place on October 17, 2020, at 11:42 p.m. After the State asked Detective Gunter to explain a FaceTime call, defense counsel objected to his testimony as being irrelevant and redundant as to what had already been admitted in the case.

Detective Gunter then testified regarding a FaceTime call that was deleted from a device belonging to Defendant. Additionally, Detective Gunter testified regarding a “safari web history report” from Defendant's phone. The report showed a search was made on October 18, 2020, at 8:04:13 a.m., asking, “ ‘can text message pictures be retrieved from cell phone company.’ ” Two more of these same searches were made at 8:01:07 a.m. and 8:01:52 a.m., and the searches had been deleted. Another search testified to by Detective Gunter was made on October 18, 2020, at 8:02:20 a.m. and stated, “ ‘if you have a subpoena for text messages and text pictures, can they be retrieved and how far back can they be retrieved.’ ” When the State moved to introduce the web history, one defense counsel said, “[n]o objection,” while the other defense counsel said, “[j]ust except for our prior objection still.”

Once again during Detective Gunter's testimony, defense counsel objected to his testimony as being repetitive of other evidence already introduced. When the State sought to introduce a Cellebrite extraction report showing a conversation between Defendant and Tina Warren at 4:06:35 a.m. on October 18, 2020, defense counsel entered the “[s]ame general objection.” The trial court then asked defense counsel if the jury being given a copy of the exhibit was acceptable to him, and defense counsel replied:

BY MR. ANGELO PIAZZA:

Judge we hate to acquiesce we're asking that we move to a different subject, because․our objection is continuing.

BY MS. BERTHOLL:

But Your Honor, I'd had him identify it, I'd like him now to read the substance. I'm just providing it to the jury to speed things up. BY THE COURT:

I will permit the jury to view the exhibit, it is subject to objection for the record, the continuing objection.

BY MS. BERTHOLL:

For the record, Judge this is not redundant, this is brand new information.

BY MR. ANGELO PIAZZA:

Oh, well then she needs to be sworn in if she's going to testify to that. She's going to become a witness.

BY MS. BERTHOLL:

This was already admitted as․

BY MR. ANGELO PIAZZA:

No, no, that's for the witness to decide what's new evidence.

BY THE COURT:

Yes.

BY MR. ANGELO PIAZZA:

So I'm objecting, I ask an [sic] instruction to the jury to disregard that comment.

BY THE COURT:

Disregard that comment by counsel please.

Later, when asked if it had any objection to evidence being introduced, defense counsel replied, “[s]ame continuing redundancy objection.” One final time, defense counsel noted its continuing objection when the State sought to introduce the entirety of the dump “by reference” since the images in the dump could not be put into the record.

During cross-examination by defense counsel, Detective Gunter stated that he had never been tendered as an expert.

Defendant's Argument in Brief

Defendant contends that he requested “discovery of investigative reports and expert witness information” in a motion for discovery and a request for bill of particulars. “[T]he State's failure to respond or give notice of an intent to use ․ a digital forensic examiner,” Defendant contends, “disarmed the defendant and misrepresented the strength of the State's case.” According to Defendant (footnote omitted), Detective Gunter was “put on the State's witness list only as a chain of custody witness for the transfer of the cellphone and I-pad to him and then back to Dep. Cammack after the extraction, not as a digital forensic examiner.” Using law enforcement software called Cellebrite, Detective Gunter produced a compact disc containing over 7,000 pages of computerized raw data. Although Defendant acknowledges that he was provided this information in May 2023, he claims he was not able to access the information until a week before trial, after two trips to the District Attorney's office.

Defendant asserts that the State decided to have Detective Gunter explain information derived from the raw data only after Deputy Cammack faltered in his explanation to the jury. When the State appeared on the third day of trial with Detective Gunter's curriculum vitae listing his credentials as a digital forensic examiner, Defendant moved to exclude Detective Gunter's testimony for lack of compliance with La.Code Crim.P. arts. 718 and 719 and for failure to qualify him as an expert. Defendant argues the trial court erred in failing to exclude Detective Gunter's testimony in three respects, all of which are discussed below.

Claim 1 – Detective Gunter gave Expert Testimony without Foundation/Qualification

Comparing a digital forensic analyst to a DNA analyst, a drug analyst, and a firearms examiner, Defendant argues they “all use programs and protocols to test evidence submitted to them, produce the testing results, and then interpret and explain those results in testimony.” Defendant contends that the State called Detective Gunter to give such expert testimony but “bypassed qualification of him as an expert to avoid their discovery violations.” Defendant further argues:

The trial court's acceptance of the State's sham and allowing Gunter to testify as an expert without notice or qualification violated Mr. Warren's Fifth and Sixth Amendment rights. Gunter was asked for his analysis of the extractions of digital evidence from the three devices provided to him by Cammack. Gunter gave his explanations, interpretations, and opinions about the Cellebrite test results to the jury as an expert.

Defendant cites La.Code Evid. art. 702 as allowing expert testimony “from a witness who has scientific, technical, or other specialized knowledge to help the trier of fact to understand the evidence or to determine a fact in issue.” Defendant argues:

Just as a lay person in the jury is unable to understand the process for extracting DNA and diagraming allelles to match them to a person without an expert's guidance, the regular lay person is unable to interpret or explain the Cellebrite data from a digital extraction without the help of an expert as found in the overwhelming majority of cases.

Defendant claims in a footnote, without specifically citing any case, that a “Lexis search revealed 75 cases where the forensic digital analyst was qualified as an expert, after a hearing or by stipulation.” Defendant further claims that there have been eleven cases since 2013 from this circuit “where an expert in forensic digital analysis testified,” specifically citing a civil case, Starks v. Starks, 17-1139 (La.App. 3 Cir. 6/27/18), 250 So.3d 1025.

Defendant argues the State “devised a scheme of calling Gunter but not designating him as an expert.” Even though the State did not formally offer Detective Gunter as an expert, Defendant asserts “the jury was invited to consider him as the expert to whom Cammack had deferred.”

As for the State's claim that Detective Gunter was not an expert because he did not author a report, Defendant claims that on at least three occasions, Detective Gunter referred to a report he created from Cellebrite. In furtherance of its claim that the State intended Detective Gunter to testify as an expert without being so qualified, Defendant asserts “the prosecutor set the stage at the outset before the jury by making two references to the ‘technology’ they were about to see.’ ” This court notes the “technology” the State was referring to was the equipment used to present the evidence rather than Detective Gunter's testimony, “Your Honor, we had set up this technology before and the picture and everything in evidence, just so we don't have any technical snags.” Finally, Defendant claims Detective Gunter's words were clearly that of an expert.

State's Argument in Brief

The State's brief does not address Detective Gunter's testimony except for a brief summary in its “CONCLUSION”:

Curtis Gunter's testimony was properly allowed by the District Court, as Gunter was not tendered as an expert, and the jury repeatedly heard that he was NOT an expert – having heard this from Gunter, the Court, and Defense. Evidence discussed during Gunter's testimony had either been previously entered into the record without objection, or was only objected to by the defense as being redundant in presentation. The term “reports” was used to described [sic] data logs generated by Cellebrite, not Gunter's personal work and/or opinion, and to any extent that meet [sic] the definition of a “report” La. C. Cr. P. Art. 719, they were all provided to the defense in discovery, and no additional steps would be required because the witness was not an expert and was not identified as one.

Despite this concluding summary, the State did not address Defendant's assignment regarding Detective Gunter in the body of its brief.

Despite the extensive discussion about Detective Gunter's expert status prior to his testimony, we find Defendant failed to preserve the arguments he now raises on appeal. According to La.Code Crim.P. art. 841(A), “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”

Defense counsel made sure it was stated for the record during Detective Gunter's testimony that the detective was not being tendered as an expert. As a witness testifying as a non-expert, Detective Gunter's “testimony in the form of opinions or inferences [was] limited to those opinions or inferences which [were]: (1) [r]ationally based on [his perception]; and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” La.Code Evid. art. 701.

In State v. Decay, 01-192, p. 22 (La.App. 5 Cir. 9/13/01), 798 So.2d 1057, 1072, writ denied, 01-2724 (La. 8/30/02), 823 So.2d 939, the defendant argued that Trooper Schmidt was erroneously allowed to give his expert opinion even though he was not qualified as an expert. The trooper testified, based on his experience, as to the meaning of certain phrases used in two conversations between the defendant and another person regarding the purchase of drugs. Although the defendant objected to parts of the trooper's testimony, the fifth circuit found the defendant waived any objection to the unobjected to testimony. Id. at 1074. The fifth circuit found the trooper's testimony was permitted under La.Code Evid. art. 701:

Generally, a lay witness can only testify to the facts within his knowledge and not to impressions or opinions; however, a witness is permitted to draw reasonable inferences from his personal observations. State v. Hubbard, 97–916 (La.App. 5th Cir.1/27/98), 708 So.2d 1099, 1106, writ denied, 98–0643, (La.8/28/98) 723 So.2d 415, (citing State v. Alexander, 430 So.2d 621 (La.1983)). Where the subject of the testimony is such that any person of experience may make a natural inference from observed facts, a lay witness may testify as to such inferences, provided he also states the observed facts. Id. (citing State v. Carter, 96–358 (La.App. 5th Cir.11/26/96), 685 So.2d 346).

In addition, unless otherwise provided by law, all relevant evidence is admissible at trial. La.C.E. art. 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.C.E. art. 401. However, 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, considerations of undue delay, or waste of time. La.C.E. art. 403. The determination concerning relevancy of evidence is within the discretion of the trial judge whose rulings will not be disturbed in the absence of an abuse of discretion. State v. Winfrey, 97–427 (La.App. 5th Cir.10/28/97), 703 So.2d 63, 75, writ denied, 98–0264, (La.6/19/98), 719 So.2d 481, (citing State v. Carter, 96–358, (La.App. 5th Cir.11/26/96), 685 So.2d 346, 351).

In this case, the State did not offer Trooper Schmidt as an expert witness. Here, Trooper Schmidt was testifying to inferences he made based on his observations and experience. Further, his testimony was based on his seven years of experience as a Louisiana State trooper, including two years as a member of the FBI narcotics task force in New Orleans. His testimony was also relevant to show the steps in the investigation in which he and other law enforcement officers conducted surveillance of the Defendant and Esteen on June 6, 1998. Therefore, we find that the trial court properly allowed Trooper Schmidt to testify to inferences regarding the content of the recorded conversations based on his own observations.

Id. at 1074.

Additionally, this court notes that “[a] law enforcement officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert; however, only experts are allowed to give opinion testimony in areas of specialized knowledge.” State v. Figueroa, 24-739, p. 8 (La.App. 1 Cir. 5/23/25), 417 So.3d 795.

Although Defendant's attorneys objected numerous times to Detective Gunter's testimony as being repetitive to Detective Cammack's testimony, they never objected to any of Detective Gunter's testimony being beyond the allowable scope of Article 701and/or breaching the prohibited scope of Article 702. Thus, Defendant has waived any claim that Detective Gunter's testimony was prohibited expert testimony.

Claim 2 - State Failed to Provide Mandatory Discovery

Defendant notes that he filed a motion for discovery and inspection, demanding information required by La.Code Crim.P. arts. 718 and 719. Those articles provide:

Subject to the limitation of Article 723 of this Code, and except as otherwise prohibited by law, upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce law enforcement reports created and known to the prosecutor made in connection with the particular case, and to permit or authorize the defendant or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that are intended for use by the state as evidence in its case in chief at trial, or were obtained from or belong to the defendant.

La.Code Crim.P. art. 718.

Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. If the witness preparing the report will be called as an expert, the report shall contain the witness's area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor. If the expert witness has not reduced his results to writing, or if the expert witness's written report does not contain the information required of an expert as provided in this Article, the state must produce for the defendant a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.

La.Code Crim.P. art. 719(A).

Defendant acknowledges that the “preliminary requirement[s] of Arts. 718 and 719 were fulfilled” because he was given access to the contents of his phone and iPad, as well as the relevant contents of the victim's phone. Defendant contends, however, that the State did not comply with the “remainder of the requirements related to experts used as consultants or as witnesses.” According to Defendant, “[t]he State failed to comply with the mandatory requirement of La.C.Cr.P. Art. 719 [sic] to identify any expert and provide their expert's results, reports, opinion and reasoning and a list of materials he examined.” Defendant contends that Detective Gunter “began providing expert advice to the Avoyelles Parish district attorney and sheriff's office a week before [his] trial.” Thus, Defendant argues that “[a]t least by that stage, the State had the duty to disclose the expert's participation and results to Mr. Warren, including the reports he said he wrote.” Defendant cites to three record pages wherein Detective Gunter testified regarding a report he created from Cellebrite. Detective Gunter refers to the “extraction report” created from a phone, not a report regarding his opinions or findings.

Defendant contends the State's noncompliance denied him the ability to adequately prepare for cross-examination and defense: “By failing to correctly identify Curtis Gunter as an expert in digital forensics and provide the required information, the State violated Mr. Warren's Fifth and Sixth Amendment rights to a defense and confrontation.” Acknowledging that the State listed Detective Gunter's name, Defendant asserts the State failed to provide the information required by La.Code Crim.P. art. 719. The detective's true purpose and role, Defendant claims, were not revealed until the third day of trial, at a time when it was too late for the defense to prepare or respond. Defendant contends he did not have “the opportunity to subpoena information from Gunter or request access to Cellebrite software for his own testing.”

Defendant concludes his argument:

By waiting until the third day of trial to acknowledge Mr. Gunter's role when the State had been consulting with him and using his expertise for at least a week before trial started, the State prevented the defense from subpoenaing his CV and documents, requesting a Daubert hearing, preparing for trial, and making a reasoned decision about the need for a defense expert. In this case, the State's failure to disclose Mr. Gunter's expert role deprived Mr. Warren of his ability to challenge Gunter at an appropriate time where planning for the defense would have been possible. A new trial is required.

All of Defendant's arguments hinge upon Detective Gunter actually being tendered as an expert. As stated previously, Detective Gunter was not tendered as an expert, and Defendant never objected to any of his testimony as being inappropriate expert testimony. Furthermore, Defendant objected to Detective Gunter's testimony regarding the Cellebrite report as being redundant of previous testimony, not for being undisclosed. Thus, Defendant fails to prove the merits of his claim.

Claim 3 – Prejudice Due to Prevention of Defense – Error Not Harmless

Defendant asserts the trial court abused its discretion in denying his request to exclude Detective Gunter's “surprise” testimony and allowing Detective Gunter to testify “without telling the jury explicitly that he was an expert.” Again, Defendant failed to object to any of Detective Gunter's testimony as being inappropriate expert testimony. Thus, Defendant has waived any claim that Detective Gunter was erroneously allowed to testify as an expert.

Defendant claims that the crux of the victim's allegations against Defendant appeared to be that she received a “dick pic” from Defendant. Since his conviction hinged upon the technical evidence from Detective Gunter as to the making and sending of the picture, Defendant claims he was “denied pre-trial discovery of Gunter's opinion and was unable to defend against it.” Citing a federal district court opinion from Georgia, Defendant claims the State's failure to comply with La.Code Crim.P. art. 719 “eroded [his] chosen trial strategy.” Defendant argues:

Had he known that Gunter's expert testimony was being presented, he could have subpoenaed Joseph Warren's phone information and had a search done on Joseph's phone for the original “dick pic.” Mr. Warren was so certain that the penis in the photo was likely Joseph's and absolutely was not his, that he allowed a photo of his own penis to be entered into evidence. He was unaware that he needed access to Joseph's phone because the State withheld discovery. Without discovery of Gunter's expert status, Warren was deprived of the opportunity to prepare his case to meet ACD's allegations at trial. The error was not harmless.

In addition to the fact that Defendant failed to preserve any claim that Detective Gunter testified as an expert, Defendant fails to show how he was prejudiced. Defendant was provided the cell phone dump in discovery. Thus, he was provided information regarding the pictures that may be introduced at trial. Furthermore, at least in the record references specifically cited by Defendant, Detective Gunter's testimony was not significantly different from Detective Cammack's unobjected to testimony.

Finally, Defendant contends that “bits” of Detective Gunter's testimony actually supported Defendant's testimony and should have been revealed to Defendant prior to trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963.) Defendant further contends that “[w]ithin the Cellebrite raw data, if accurately interpreted and explained, there are likely more instances of Brady evidence.” Defendant claims that if the Cellebrite data had been provided in a timely and usable format, “and if the State's intent to use Gunter as an expert was timely known, the defense could have prepared for better cross examination of him, and even secured his own expert.”

Defense counsel acknowledged that they were given the “dump” in discovery. Thus, if there was any exculpatory evidence, it was disclosed to Defendant. Moreover, Defendant did not object at trial to the late discovery of alleged Brady material. Accordingly, Defendant failed to preserve any claim regarding the late disclosure of Brady evidence. See State v. Roussel, 381 So.2d 796, 800 (La.1980).

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant claims the trial court erred in denying the jury's request to examine the physical evidence during their deliberations. The State responds that the decision was within the trial court's discretion. La.Code Crim.P. art. 793. Defendant failed to preserve this claim for review.

Louisiana Code of Criminal Procedure Article 793(A) provides:

Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

In brief, Defendant states that the defense stated three times that it had no objection to the jury having the requested evidence, “even suggesting that they may want all of the physical evidence.” Defendant fails to acknowledge, however, that defense counsel Angelo Piazza expressed concern on more than one occasion with the trial court's contemplation of granting the jury's request. Moreover, the defense not only failed to object when the trial court denied the jury's request, it appeared to agree with the trial court's decision. Thus, this assignment of error is denied for failure to object to the trial court's ruling. La.Code Crim.P. art. 841.

ASSIGNMENT OF ERROR NUMBER FOUR

In this assignment of error, Defendant raises various challenges to the sentence imposed. Because of errors patent, however, the sentence must be vacated and the case remanded for resentencing. Accordingly, this assignment of error is moot.

CONCLUSION

Defendant's conviction is affirmed. Defendant's sentence, however, is vacated, and the case is remanded for resentencing. The trial court is instructed that if restitution is again imposed as a condition of probation, it should specify the amount of restitution, specify to whom restitution must be paid, and follow the procedure set forth in La.Code Crim.P. art. 895.1. Furthermore, the trial court is instructed that before any financial obligations and default time are imposed, the trial court must comply with the provisions of La.Code Crim.P. arts. 875.1 and 884. If community service is imposed as a condition of probation, the trial court must specify the amount of community service hours required to be served. Additionally, the trial court is prohibited from denying diminution of sentence and must advise Defendant of the sex offender notification requirements in La.R.S. 15:543(A).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   Defendant was charged in separate docket numbers with contributing to the delinquency of a juvenile, pornography involving a juvenile, first degree rape, and computer aided solicitation of a minor. According to testimony of the victim's mother at sentencing, these charges were still pending at that time.

2.   Although Defendant cites La.Code Crim.P. art. 875.2 in brief, the Article is numbered 875.1.

3.   Detective Glenn Cammack testified before Detective Gunter.

BRADBERRY, Judge.