STATE v. FLORES (2025)

Defendant-appellant, Luis Miguel Flores, appeals his convictions for one count of first degree rape of a known juvenile where the child was under the age of thirteen, in violation of La. R.S. 14:42(A)(4) (Count One); one count of sexual battery upon a known juvenile where the victim was under the age of thirteen and the offender was seventeen years of age or older, in violation of La. R.S. 14:43.1 (Count 2); and one count of indecent behavior with a juvenile where the victim is under the age of thirteen, and the offender was seventeen years of age or older, in violation of La. R.S. 14:81 (Count 3). For the reasons stated below, we affirm appellant's convictions, remand the matter to the trial court for resentencing as to Counts 2 and 3, and for provision to Defendant of the written notice required by La. R.S. 15:543.¹

STATEMENT OF THE CASE

On August 17, 2023, Mr. Flores was indicted by a Jefferson Parish Grand Jury for first degree rape of a child under the age of thirteen (La. R.S. 14:42(A)(4) (Count 1); sexual battery upon a juvenile under the age of thirteen, where the offender is seventeen years of age or older (La. R.S. 14:43.1) (Count 2); and indecent behavior with a juvenile under the age of thirteen, where the offender is seventeen years of age or older (La. R.S 14:81) (Count 3). On August 18, 2023, Mr. Flores entered a plea of not guilty on all counts.

On March 11, 2024, the State filed a Notice of Intent to Introduce Evidence under La. C.E. art. 412.2 or 404(b)(3)/ “Res Gestae,” which it supplemented on November 26, 2024. Therein, the State sought to introduce evidence of similar incidents of sexual abuse of the victim which occurred outside Jefferson Parish, but within a year of the alleged conduct perpetrated against the victim in Jefferson Parish, for which Mr. Flores was facing trial. Mr. Flores opposed the introduction of such evidence under Articles 412.2 and/or 404(b)(3) and/or as res gestae evidence. The trial court ruled that the State would be permitted to introduce evidence of other alleged acts of sexual abuse of the victim that occurred in Dallas, Texas and New Orleans, Louisiana.

On December 5, 2024, the State filed a Motion in Limine to Exclude, seeking to exclude evidence of the citizenship or undocumented status of the victim and her mother. The State orally withdrew this motion on December 9, 2024, the first day of trial.

On December 7, 2024, Mr. Flores filed a Motions in Limine to exclude any evidence or mention of his previous arrests or incarcerations due to his immigration status, including statements made by the victim's mother in the 9-1-1 call reporting the victim's allegations of abuse, and statements made by the victim in interviews conducted at the New Orleans and Jefferson Parish Child Advocacy Centers.

On December 9, 2024, prior to jury selection, the State moved to be permitted to introduce res gestae evidence that Mr. Flores was incarcerated at the time the victim reported the abuse to her mother. The State represented to the trial court that:

We're not trying to introduce why he was incarcerated. We're not trying to introduce his documentation or lack of documentation. We're merely trying to introduce the reality that he was incarcerated and, therefore, could not return to the victim's residence; could not return to her life where he had previously made threats; that ․ he would do harm to her mother․ The only issue is the State wanting to introduce, which we ordinarily would not, that the defendant was incarcerated, unrelated to this case in its entirety. Because of the probative value of those reasons why the victim noted, when she chose to disclose and the time, just the reality of the time when this incident was occurring, the delay of that reporting and then what had to transpire in order to make her able to report, when she chose to do so. Those are all very relevant issues that will be examined. The victim's credibility will, obviously be a big part of this trial to explaining why it is she felt comfortable to report is an unfortunate, but very much a necessity in the presentation of this case. And we're not trying to introduce his status or why he was incarcerated. For the Court's knowledge, it was, I believe, because he is an undocumented person. We're not trying to introduce that. We've been very clear in our preparation with the victim and her mother that's not something we are going to talk about․ I do have some more to discuss regarding this documentation issue in voir dire.

The trial court ruled that the State could not make any mention of Mr. Flores’ incarceration or of Mr. Flores’ immigration status at the time the victim made the initial report to her mother. The trial court instructed that the State could say that Mr. Flores was “unavailable,” or “had no way to contact [the victim]” at the time the victim reported the abuse to her mother.

The State then informed the court that it intended to present to potential jurors the fact that the victim and her mother were undocumented, in order to explore their biases. The prosecutor stated that “part and parcel to that is [the defendant] also has a right to not have that held against him. Although we won't be presenting it, it is still very relevant to determine the jurors’ positions on that issue.” The court responded that if the defense had no intent of discussing Mr. Flores’ undocumented status, there would be no need for the State to bring it up. The prosecutor responded that the State intended to “denote [in regard to Mr. Flores] that it's not a thing for the jury to legally consider and if they're comfortable following that law.” The prosecutor further stated: “Inasmuch as we want to make sure that it's not an issue regarding the victim or the victim's family, it is also not an issue for them to consider regarding the defendant.” The court observed that “[i]f [potential jurors] know nothing about either person's status, why is it – well, who's going to make it an issue?” The prosecutor responded that the State could not tell the story of the victim and her family without letting the jury know that they are undocumented. Thereafter, the following exchange occurred:

[The Court]: Well, I can certainly ․ if that's the road you want to go down in terms of your voir dire, in terms of, you know, finding out what prejudices the jurors may have relative to the victim's status being undocumented. So, I'm certain that they will give that to you. And I'm certain that that would, that opinion would potentially carry over to the defendant, also, without noting what his status is.

[The Prosecutor]: And absolutely. I don't intend to denote what his status is; only the fact that the status is not for their consideration --

[The Court]: Correct.

[The Prosecutor]: -- pursuant to law.

[The Court]: I follow you.

[The Prosecutor]: I absolutely don't intend to do --

[The Court]: Okay.

[The Prosecutor]: -- a status in any way.

[The Court]: All right.

Defense counsel did not object to the trial court's apparent ruling that the State would be permitted in voir dire to inform potential jurors that the immigration status of the defendant could not be considered in their deliberations. Nor did defense counsel make any arguments against allowing the State to so inform potential jurors during voir dire. Instead, defense counsel proceeded to raise her own motions in limine, stating that there were two, one of which – the motion seeking to prevent the State from referencing or admitting evidence of Mr. Flores's previous immigration incarcerations or arrests – had been resolved by the court's ruling denying the State's motion to introduce evidence of Mr. Flores’ incarceration at the time of disclosure. She informed the court that the other defense motion in limine was one to prevent the State from referencing or admitting the 9-1-1 call made by the victim's mother to report the victim's allegations against the defendant without proper authentication. The court instructed her to make her objection at the appropriate time during the trial.

During voir dire, which occurred later the same day, the prosecutor asked whether any potential jurors were familiar with undocumented friends or family members living in Jefferson Parish. Two potential jurors responded affirmatively. The prosecutor then asked whether any juror's opinions on undocumented individuals would prevent him/her from being able to be a fair and impartial juror. None responded. When questioned individually, one juror responded that the person's status would have nothing to do with the crime.

After further questioning of jurors, the prosecutor stated:

And as I said earlier, we as the State, although we obviously do present cases that involve victims, be it child crimes, sexual assault, a robbery or murder, whatever it may be, the fact that a victim is documented or undocumented, it's not really an issue․ And yeah, there's a whole separate Court that handle[s] all those kind of things. But is everyone comfortable with the fact that you may hear from a victim or a witness in this case that is not a documented citizen? It's fair to have an opinion. I'm not here to tell you that you shouldn't have an opinion․ I'm also not trying to have a policy to be a juror or anything like that. I'm just – this is a very real issue that affects this community. If it's something that will influence your consideration of the testimony, please, feel free to let us know. Okay. And to be sure, that applies to the entirety of this case. The defendant has rights. It doesn't matter what their status is. If you have a lot of thought, a belief, you hear evidence to that effect, it's not relevant; okay? He has a right to a fair trial. We need to protect that just as much as we need to protect the right of a victim to report it.

(Emphasis added).

Following these statements, defense counsel requested a bench conference in which she argued that the above highlighted statements by the prosecutor impermissibly implied that Mr. Flores was undocumented and requested a mistrial. The court responded, “Well, he's saying they may hear that.” The prosecutor then argued that he had clarified that the defendant's status was “not a consideration for them as jurors legally.” Thereafter, the trial court denied Mr. Flores's motion for a mistrial.

A jury was selected on December 9, 2024. The trial commenced on December 10, 2024, and the evidence was completed that day. On December 11, 2024, the jury returned a verdict of guilty on each of the three counts. Mr. Flores filed a Motion for New Trial on December 17, 2024, seeking a new trial on, among other grounds, the district court's denial of his motion for a mistrial due to the State's alleged reference to his immigration status. The defense argued that the trial court had ruled on December 9, 2024, that “evidence that Mr. Flores had been incarcerated due to his immigration status and subsequently deported” was more prejudicial than probative.” Mr. Flores’ counsel also represented in the Motion for New Trial that, although she did not object when the State discussed with jurors their biases against undocumented immigrants, when the State pointed out that “such grace should be extended to Mr. Flores,” she objected and moved for a mistrial on the ground that the prosecutor's statement implied that Mr. Flores was undocumented. She argued that the denial of a mistrial prevented Mr. Flores from receiving a fair trial because all of the jurors who were empaneled heard the prosecutor's implication.

The trial court conducted a hearing on the Motion for New Trial on December 18, 2024, after which the motion was denied. Mr. Flores waived sentencing delays and victim impact statements were read into the record. The trial court then sentenced Mr. Flores to life in prison, without benefits of parole, probation or suspension of sentence as to Count 1 (La. R.S. 14:42(A)(4)); and ten years’ imprisonment on each of Count 2 (La. R.S. 14:43.1) and Count 3 (La. R.S. 14:81). All sentences were ordered to run concurrently with each other. The trial court waived all fines, fees, and costs, with the exception of the $45.00 fee assessment provided under La. R.S. 15:168.²

A motion for appeal was filed on December 26, 2024, and was granted by the trial court on the same day. This appeal timely followed.

FACTS

Mr. Flores and Kira Diaz, the mother of the victim, G.D., met in 2015 while they were living in Honduras. They soon entered into a romantic relationship. At the time, G.D. was five years old. G.D. became attached to Mr. Flores and he became a father-figure to her. G.D. referred to Mr. Flores as her “dad” or her “daddy.” Mr. Flores ultimately left Honduras and moved to Dallas, Texas. Shortly thereafter, Ms. Diaz and G.D. went to Mexico. Ms. Diaz, who was pregnant with Mr. Flores's child, gave birth in Mexico to J.D., the little brother of G.D.

After J.D.’s birth, Ms. Diaz left Mexico with G.D. and J.D., and relocated to Miami, Florida. She soon left Miami with the children and joined Mr. Flores in Dallas. Mr. Flores and Ms. Diaz never married; however, they became parents to another child, S.D., who was born after the family relocated to the United States. After living for a time in Dallas, the family relocated to New Orleans in 2017 and briefly lived with Mr. Flores's uncle. At that time, G.D. was seven years old. Mr. Flores, Ms. Diaz, G.D., and J.D., subsequently moved to Avondale, Jefferson Parish, Louisiana, where they stayed with relatives of Ms. Diaz. After living with relatives in Avondale for a short period of time, they moved to a house in Metairie.

Mr. Flores, Ms. Diaz, and G.D. are all undocumented immigrants. In 2019, Mr. Flores was detained by immigration authorities and was incarcerated outside of Louisiana while awaiting a deportation hearing. On or about June 9, 2019, while Mr. Flores was incarcerated, G.D. reported to Ms. Diaz that her “daddy” had sexually molested her while the family lived in Dallas, after they moved to New Orleans, and after they moved to Jefferson Parish. G.D. would have been seven, eight, or nine years old at the time of the alleged abuse. Mr. Flores had been incarcerated for about seven months on immigration charges at the point at which G.D. reported the abuse to her mother.

G.D., who was ten at the time she reported the abuse, had a history of being untruthful, and Ms. Diaz initially did not know whether to believe her. Nevertheless, Ms. Diaz took G.D. to Children's Hospital in New Orleans on the day following G.D.’s report of incidents of abuse. G.D.’s allegations were reported to the New Orleans Police Department (“NOPD”) by Children's Hospital.

Sergeant Arianne White of NOPD met with Ms. Diaz at Children's Hospital. Ms. Diaz reported that G.D. had made allegations of incidents that had occurred in Dallas, Texas, New Orleans, and Jefferson Parish. Ms. Diaz was asked to bring G.D. back on June 13, 2019, for an interview to be conducted at the Child Advocacy Center (the “CAC”) in New Orleans, which she did. The interview was directed by Sgt. White but conducted by a child forensic interviewer employed by the New Orleans CAC. Sgt. White ultimately obtained an arrest warrant for Mr. Flores on charges of first-degree rape, sexual battery and indecent behavior with a juvenile.

G.D.’s allegations were also referred to Jefferson Parish but, according to Sgt. White, “they could not take on the case because we did not have a location within Jefferson Parish at that time.” Some two to three years later – 2021 or 2022 – Ms. Diaz contacted Jefferson Parish authorities to inquire as to the status of the case against Mr. Flores in Jefferson Parish. At that point, Ms. Diaz was interviewed by a Jefferson Parish Sheriff's Deputy.

Amanda Hill, a former employee of the Jefferson Parish Sheriff's Department's Special Victim's Unit, testified that she was the deputy to whom Ms. Diaz reported the allegations that G.D. had made against Mr. Flores. She was not contacted by Ms. Diaz until 2022. Once she had conducted an interview with Ms. Diaz, then-Dpty. Hill scheduled a CAC interview with G.D. at the Jefferson Parish CAC. G.D. was interviewed there by Aubrey Zeigler, a child forensic interviewer with the Jefferson Parish CAC, but Dpty. Hill was in the next room and was able to direct questions to be asked by Ms. Zeigler. Following G.D.’s Jefferson Parish CAC interview, Dpty. Hill interviewed Ms. Diaz a second time and had her identify a photograph of the suspect. Thereafter, the deputy obtained an arrest warrant for Mr. Flores.

Dr. Ellie Wetsman, a child-abuse pediatrician with the Jefferson Parish Coronor's Office, previously worked at Children's Hospital from 2001 through 2022, where she examined children who were alleged victims of sexual abuse. Dr. Wetsman was accepted by the trial court as an expert in the field of child sex abuse.

On June 13, 2019, Dr. Wetsman saw G.D. at the New Orleans CAC. There, she took a medical history and conducted a physical examination of the child. The physical examination did not reveal any signs of physical trauma, which was not unusual. Dr. Wetsman explained that perpetrators of child sexual abuse generally try not to “injure the child and cause a lot of attention to be made” because they want to continue to perpetrate the abuse. Because the incidents allegedly occurred more than seventy-two hours prior to the examination, no DNA testing was done.

At the time Dr. Wetsman examined G.D., she was ten years old and would have been entering fifth grade at the end of the summer. G.D. also underwent a forensic interview at the New Orleans CAC on June 13, 2019. Dr. Wetsman reviewed the forensic interview to ascertain the allegations made by G.D. against Mr. Flores. In that interview G.D. reported penile, vaginal penetration by her stepfather when she was eight and nine years old.

Ms. Ziegler testified that she conducted a second forensic interview of G.D. in 2022. Both forensic interviews of G.D. were played to the jury at trial.

G.D. testified at trial and described incidents of sexual misconduct perpetrated by Mr. Flores that occurred in Dallas, Texas, when she was seven or eight years old, in New Orleans, when she was eight years old, and in Jefferson Parish, when she was eight or nine years old. G.D. testified that she, her mother, her little brother, and Mr. Flores lived in an apartment in Dallas, Texas for about a year. She stated that her mother worked at a daycare center. Her little brother went to the daycare center with Ms. Diaz most of the time. She described being home with Mr. Flores one day while her mother was at work. On that occasion, she was in her parents’ room watching Sponge Bob. Mr. Flores came into the room, closed the door, and asked her to come there to him. When she did, he told her to lie on the bed. He touched her skin on her chest area with his hands and then went into the bathroom. She did not report this to her mother because she was confused and did not know whether it was wrong.

G.D. described a second incident that occurred while they were living in Dallas. On that occasion, her mother was, again, at work. G.D. was in her room and Mr. Flores told her to come into her parents’ room. He told her to lie down on the bed and when she did, he touched her skin in her chest area and touched her vagina over her clothes. On this occasion, he told her that if she told anyone, he would kill or hurt her mother and then, he went into the bathroom. G.D. said that she felt confused and scared. She thought that because Mr. Flores had threatened to hurt or kill her mother, what he was doing must be bad. She also thought that she had done something to cause Mr. Flores to touch her like that. She did not tell her mother because she believed that Mr. Flores would harm her mother.

While the family was living with Mr. Flores’ uncle in New Orleans after they left Dallas, G.D. testified that Mr. Flores one day called her into a middle room in the house. Her mother was at work. She said there was a mattress on the floor. G.D. testified that Mr. Flores showed her a video on his phone of a woman losing her virginity. At the time, she did not understand what it was, but she came to understand when she got older. G.D. stated that Mr. Flores spoke about the woman getting something “popped.” He told her that it would hurt at first, but then it would feel good. He then told her to lay down on the mattress, but not on her back; instead, he instructed her to lie like a dog, in the same way the girl in the video was positioned. In the video the people were naked, and the man inserted his penis into the girl and when he took it out, it was red. Mr. Flores then tried to insert his penis inside G.D., but “it wasn't working.” He stepped out of the room and “got this weird looking bottle.” He then put something in his hand and rubbed it on her vagina. She stated that it stung a little bit and then he inserted himself inside her for what she estimated was about seven to nine minutes. She did not remember anything else about that time. She said that she was scared but she did not tell her mother because she thought that her mother would face some sort of punishment and she did not want that. G.D. was eight at the time.

G.D. described a second incident that occurred in New Orleans at Mr. Flores’ uncle's house on her ninth birthday. She recalled wearing a white dress that day and stated that she was excited because she was going to the trampoline park. Her mother was not at home, and Mr. Flores called her into the middle room and told her to lie down. He then changed his mind and told her to lie down like a dog again. He did not use the little bottle, he just inserted himself inside of her, but then, he got a call from her mom, saying that she was on her way home. Mr. Flores then stopped and went to the bathroom. Afterwards, G.D. did not see Mr. Flores as her dad anymore.

Shortly after that day, the family moved to Avondale, where they lived with her aunt, TT. While they were living in Avondale, Ms. Diaz borrowed TT's car to go grocery shopping. G.D. asked her mother if she could go with her to the store. Although she did not tell her mother, G.D. said that she wanted to go to the store with her mother because she did not want to be alone in the house with Mr. Flores. Her mother did not permit her to go because the car was small, and she said there would not be enough space for G.D. and the groceries. After her mother left, G.D. went to her own room and Mr. Flores called her into the living room. She went to the living room, but he was not there. Mr. Flores then walked into the living room and told her to get on the couch and position herself like a dog again. She did as she was told and he penetrated her by putting his penis inside her vagina. She said that she felt like she had no choice but to do what Mr. Flores said.

G.D. testified that Mr. Flores touched her on other occasions while they lived at her Aunt TT's house, but she did not remember them clearly. She stated that on some occasions, he touched her vagina with his hand. She recalled one incident in which Mr. Flores was working out of town and called home on Facetime. Her mother gave the phone to G.D. and told her to go to her room and talk to her dad. On the call, Mr. Flores told her to show him her breasts. She informed him that her mother was sleeping in the other room, but he was insistent. On this occasion, G.D. refused to do as Mr. Flores asked her to do and took the phone back to her mother.

G.D. testified that one day, she, her mom, and Mr. Flores were at a gas station. When Mr. Flores went inside to pay, G.D. asked her mother if Mr. Flores was her biological father. Her mom stated that he was not. G.D. said that she asked because she did not believe that a “real dad” would treat her the way Mr. Flores was treating her.

G.D. also recalled telling her mother about the abuse. G.D. stated that Mr. Flores was not living in the house with them at that time. He had been away for several months, so she thought this was the right time to tell her mother because he was away. They were living in Metairie at the time. She told her mom at that time that Mr. Flores had been touching her during the past few years. G.D. described her mother as being “starstruck” and said that Ms. Diaz “couldn't believe it.” Her mother and her mother's friend asked her to show them how Mr. Flores had touched her. She had a big Teddy Bear that Mr. Flores had bought her and she showed them on the Teddy Bear what Mr. Flores did to her. The next day, her mother took her to the hospital. The doctor examined her and then, she spoke to the police officers about the abuse.

G.D. testified that she could not remember all the details of every time she was touched. She explained that it had happened a long time ago – she was fifteen years old when she testified at trial – and that she had spent the past few years just trying to forget about it. She stated that those years when she was being abused by Mr. Flores were the worst years of her life and that she did not want to think about it anymore.

G.D. admitted that she and her mother were undocumented immigrants at the time of trial. She stated that they were pursuing U-Visas, for which they became eligible as a result of G.D. having been the victim of a crime. These U-Visas would allow them to remain in the United States legally and, ultimately, to apply for citizenship.

At the time of trial, G.D., her younger brother, J.D., her younger sister, S.D., and her mother were residing in a shelter in Boston, Massachusetts.

ASSIGNMENTS OF ERROR

Mr. Flores assigns two errors on appeal. First, he contends that the trial court erred in denying his motion for a mistrial after the prosecutor improperly referenced his undocumented status during voir dire. Second, Mr. Flores contends that the trial court erred by denying his motion for a new trial due to the prosecutor's improper remarks during voir dire calling attention to his undocumented status.³ Mr. Flores addressed these assignments of error as a single issue on appeal.

DISCUSSION

Denial of Motion for Mistrial

La. C.Cr.P. art. 770 provides:

A mistrial must be granted on motion of a defendant when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

1. Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;

2. Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

3. The failure of the defendant to testify in his own defense; or

4. The refusal of the judge to direct a verdict.

An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Additionally, Article 771 provides that the judge may admonish the jury to disregard a remark or comment made to or within the hearing of the jury, “when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant ․ in the mind of the jury,” when the remark is not within the scope of article 770 and is made by the judge, district attorney or a court official. Under Article 771, the court may grant a mistrial if it is satisfied that any admonition is insufficient to assure the defendant a fair trial.

Discretionary grounds for declaring a mistrial are set forth in La. C.Cr.P. art. 775, which provides that a mistrial may be ordered and, in a jury case, the jury dismissed when:

(1) the defendant consents to a mistrial;

(2) the jury is unable to agree upon a verdict;

(3) there is a legal defect in the proceedings which would make any judgment tendered upon a verdict reversible as a matter of law;

(4) the court finds that the defendant does not have the mental capacity to proceed;

(5) it is physically impossible to proceed with the trial in conformity with law; or

(6) False statements of a juror on voir dire prevent a fair trial.

Article 775 further provides that, “upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

In his brief, Mr. Flores appears to argue that the prosecutor's comments to potential jurors on voir dire that they should not consider the immigration status of the victim, the witnesses, or the defendant, did not mandate a mistrial. Instead, he suggests that a mistrial should have been granted under Article 771 because the prosecutor's remarks to potential jurors made it impossible for him to obtain a fair trial.⁴ Mr. Flores contends that “there has been a drumbeat of incessant commentary about the role that illegal immigrants play in our society with much politicization of the issue. If the goal is a fair trial, politics have no place in the courtroom.” The State argues that the prosecutor's reference to the defendant's right to a fair trial and the victim's right to report an offense “came in the context of telling the jury that ‘status’ was not relevant to its consideration of the case.” According to the State, the prosecutor's comments, “taken as a whole,” did not warrant the exercise of the trial court's discretion to declare a mistrial and, as a result, the trial court also did not abuse its discretion in denying Mr. Flores’ Motion for New Trial.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to a defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Adams, 13-992 (La. App. 5 Cir. 5/21/14), 142 So.3d 265, 272, writ denied, 14-1245 (2/6/15), 158 So.3d 813; State v. Wall, 14-539 (La. App. 5 Cir. 12/23/14), 209 So.3d 962, 971-72; State v. Frye, 25-57 (La. App. 5 Cir. 11/5/25), ––– So.3d ––––, –––– – ––––, 2025 WL 3087632 at ** 21-23.

In this case, we find no abuse of discretion in the trial court's denial of Mr. Flores’ motion for a mistrial. The prosecutor apprized the trial court and defense counsel prior to the commencement of voir dire that the State intended to inform the jury that the immigration status of the victim, witnesses, and the defendant, was irrelevant to its determination of guilt or innocence. Mr. Flores lodged no objection to the State's intended parameters.

Further, the State made no express reference to Mr. Flores’ immigration status in its voir dire. The only specific mention of anyone's status as undocumented was made in reference to the victim or a witness and was coupled with the request to inform the State if such a person's status would influence the juror's decision-making process. The prosecutor then stated, “Okay. And to be sure, that applies to the entirety of the case. The defendant has rights. It does not matter what their status is․ He has a right to a fair trial. We need to protect that just as much as we need to protect the right of a victim to report it.” While these statements may have indirectly implied that Mr. Flores was undocumented, the prosecutor essentially told potential jurors directly that the victim was undocumented and that one or more witnesses were also undocumented. Whatever bias a potential juror may or may not have had against undocumented individuals would have applied equally to all such individuals.

Under the circumstances, we do not see how Mr. Flores suffered any substantial prejudice that deprived him of his right to a fair trial. The only “prejudice” that he has identified is his supposition that because of current political rhetoric, the general populace views undocumented individuals negatively. Such an assumption does not rise to the level of a showing of substantial prejudice sufficient to deprive Mr. Flores of his right to a fair trial. Indeed, the jurors who were questioned individually indicated that a person's status as undocumented would not affect their decision-making process.

Moreover, even if a mistrial should have been granted under Article 770 or 771 because of the prosecutor's comments implying that Mr. Flores was undocumented, this would not automatically result in a reversal of his convictions but would be an error subject to harmless error review. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 101-02; State v. Simpson, 24-250 (La. App. 5 Cir. 4/16/25), 413 So.3d 1248, 1276-77. We find, considering the entirety of the evidence presented at trial, that any error of the trial court in denying Mr. Flores’ motion for a mistrial based on the prosecutor's comments was harmless. An error is harmless when the guilty verdict was surely unattributable to the error. State v. Bauer, 23-447 (La. App. 5 Cir. 10/30/24), 397 So.3d 1249, 1263 n. 7, writ denied, 24-1455 (La. 4/1/25), 404 So.3d 650.

The victim, G.D., testified at trial that Mr. Flores raped her multiple times, touched her breasts and/or vagina on numerous occasions, and tried to get her to show him her breasts on Facetime. All of these acts occurred when the victim was seven, eight or nine years old. G.D.’s testimony – which the jury obviously found credible – was sufficient, beyond a reasonable doubt to convict Mr. Flores of the crimes of first-degree rape of, sexual battery upon, and indecent behavior with a victim under the age of thirteen when the offender was seventeen years of age or older. We find that the guilty verdicts were surely unattributable to any error of the trial court in denying Mr. Flores’ motion for a mistrial.

 Denial of Motion for New Trial

La. C.Cr.P. art. 851(B)(2) provides that a new trial shall be granted where “the court's ruling on a written motion, or an objection made during the proceedings shows prejudicial error.” “The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” La. C.Cr.P. art. 851(A).

The denial of a motion for new trial is not subject to review on appeal absent an error of law. Adams, 142 So.3d at 272; La. C.Cr.P. art. 851. The trial court's grant or denial of a motion for new trial is committed to its sound discretion. Its decision will not be disturbed on appeal absent a clear showing of an abuse of discretion. Adams, 142 So.3d at 272; State v. Dillon, 23-423 (6/5/24), 391 So.3d 82, 93-94, writ denied, 24-835 (La. 11/14/24), 395 So.3d 1182.

We have found that the trial court did not abuse its discretion in denying Mr. Flores’ motion for a mistrial based on the prosecutor's comments during voir dire that may have implied that Mr. Flores was an undocumented individual. Accordingly, we also find that the trial court did not abuse its discretion in denying Mr. Flores’ Motion New Trial on that basis.

ERROR PATENT REVIEW

We have reviewed the record for errors patent, in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We have identified five patent errors. Defendant received illegally lenient sentences on Counts 2 and 3. Additionally, the trial court failed to conduct a financial hardship hearing as to the payment of fees, failed to inform Mr. Flores of the sex offender registration requirements, and failed to advise Mr. Flores of the time period for seeking post-conviction relief.

 Illegally Lenient Sentence, Count 2

Mr. Flores was convicted, on Count 2, of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, a violation of La. R.S. 14:43.1(C)(2). The penalty for conviction of that offense is “imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years,” with at least twenty-five years of the sentence imposed to be served without benefit of parole, probation, or suspension of sentence. The trial court sentenced Mr. Flores to serve ten years on Count 2. Accordingly, the sentence is illegally lenient, and we vacate the sentence as to Count 2 and remand the matter to the trial court for resentencing in accordance with the statutory range provided in La. R.S. 14:43.1(C)(2).

 Illegally Lenient Sentence, Count 3

Mr. Flores was convicted on Count 3 of indecent behavior with a juvenile victim under the age of thirteen, when the offender is seventeen years of age or older, a violation of La. R.S. 14:81(H)(2). That section provides that a person convicted of this crime “shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years,” at least two years of which, shall be served without benefit of parole, probation or suspension of sentence. Generally, when a trial court does not impose the required restriction of benefits, such conditions are deemed to exist by operation of law under La. R.S. 15:301.1; however, that statute does not operate to cure the error in this case where the portion of the sentence to be served without benefits is left to the discretion of the trial judge. Accordingly, we vacate Mr. Flores’ sentence as to Count 3 and remand the matter to the trial court for resentencing in accordance with La. R.S. 14:81(H)(2).

 Lack of Financial Hardship Hearing

The trial court imposed an Indigent Defense Board fee of $45.00 on Mr. Flores in accordance with La. R.S. 15:168. La. C.Cr.P. art. 875.1 requires the trial court to conduct a hearing to determine whether the payment of any fine, fee, cost, restitution, or monetary obligation would cause substantial financial hardship to the defendant or his dependents. The record does not reflect that such a hearing was conducted in this case in conjunction with the imposition of the fee or that the judicial determination was waived. Accordingly, we vacate the trial court's imposition of the $45.00 Indigent Defender Board fee. However, because Mr. Flores was sentenced to life imprisonment on Count 1, we decline to remand this matter for a financial feasibility hearing, which would appear to constitute an exercise in futility. See State v. Lopez, 23-335 (La. App. 5 Cir. 8/21/24), 398 So.3d 167, 185, writ denied, 24-1187 (La. 1/14/25), 398 So.3d 650.

 Failure to Inform Defendant of Sex Offender Registration Requirement

All three of Mr. Flores’ convictions are defined as sex offenses under La. R.S. 15:541(24). La. R.S. 15:542 requires any person convicted of a sex offense and/or a criminal offense against a victim who is a minor, to register and provide notification as a sex offender and/or child predator. La. R.S. 15:543(A) requires the trial court to provide written notification at sentencing of the registration requirements of 15:542 to a defendant convicted of a sex offense and/or a criminal offense against a minor. The record does not reflect that the trial court provided the required notification to Mr. Flores at sentencing.

In State v. Abrego-Zambrano, 24-133 (La. App. 5 Cir. 12/18/24), 409 So.3d 880, 892, writ denied, 25-84 (La. 4/1/25), 404 So.3d 651, this Court recognized that the trial court's failure to provide the required written notification constitutes an error patent, and warrants remand for written notification, even where a life sentence has been imposed. Accordingly, we remand the matter to the trial court and instruct the trial court to provide Mr. Flores with the required written notice of the registration requirements for sex offenders by sending the appropriate notice to Mr. Flores. We further instruct the trial court to file written proof into the record confirming that Mr. Flores received such notice.

 Failure to Notify Mr. Flores of Post-Conviction Relief Deadlines

La. C.Cr.P. art. 930.8 requires the trial court to inform the defendant at sentencing of the time limits for filing an application for post-conviction relief. The minute entry of sentencing reflects that the trial court informed Mr. Flores that he had two years after the judgment of conviction and sentence became final to seek post-conviction relief. The sentencing transcript, however, does not reflect that Mr. Flores was so informed. The transcript, not the minute entry, is controlling. State v. Lynch, 441 So.2d 732, 734 (La. 1983). It is well-settled that where the trial court fails to notify the defendant of his post-conviction rights, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Taylor, 20-215 (La. App. 5 Cir. 4/28/21), 347 So.3d 1008. Accordingly, we hereby inform Mr. Flores that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922.

DECREE

For the reasons stated herein, we affirm defendant-appellant's convictions on all counts. We vacate defendant-appellant's sentences on Counts 2 and 3 and remand the matter to the trial court for re-sentencing in accordance with this opinion. We further remand the matter to the trial court, with instructions to provide the written notice of the sex offender registration requirements, required under La. R.S. 15:543, and to file into the record proof confirming that defendant-appellant received the required notice.

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING AS TO COUNTS 2 AND 3; REMANDED WITH INSTRUCTIONS TO PROVIDE THE NOTICE REQUIRED BY LA. R.S. 15:543 AND TO PROVIDE CONFIRMATION OF RECEIPT THEREOF BY DEFENDANT-APPELLANT

FOOTNOTES

1.   Although Mr. Flores did not assign any errors relative to his sentences, we remand to the trial court as to the sentences imposed on Counts 2 and 3 due to errors patent identified by this Court.

2.   La. R.S. 15:168(B)(1)(a) imposes an Indigent Defender Board fee of $45.00 upon defendants utilizing indigent defender services, who are convicted after trial or who enter a plea of nolo contender or guilty.

3.   Mr. Flores alleged other grounds in his Motion for New Trial, but on appeal, asserts only the prosecutor's statements on voir dire as a basis for his second assignment of error.

4.   Mr. Flores’ brief states that:La. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C.Cr.P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible․ For purposes of article 770, a law enforcement officer is not considered a ‘court official,’ and an unsolicited, unresponsive reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C.Cr.P. art. 770. (Citations omitted).He then discusses permissive grounds for a mistrial and correctly sets forth the applicable standard of review as an abuse of discretion. Thus, he appears to argue that the district court abused its discretion in denying his motion for a mistrial, not that the trial court was required to grant a mistrial.

WICKER, J.