STATE v. RUIZ CARDONA (2026)

The defendant, Kerling Tony Ruiz-Cardona, was charged by bill of information with sexual battery (Count One), a violation of La. R.S. 14:43.1, and indecent behavior with a juvenile (Count Two), a violation La. R.S. 14:81. The defendant pled not guilty. After a trial by jury, he was found guilty as charged. He was sentenced to seven years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on Count One, and to seven years imprisonment at hard labor on Count Two, to be served concurrently. The defendant now appeals, raising two assignments of error. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On June 28, 2019, L.C. brought her fourteen-year-old daughter S.R. (the victim) to work with her at B&L Supply Company (“B&L”) in Mandeville, Louisiana, as she had occasionally done before.¹ At the time, the defendant worked for Kevin Kendrick, a licensed plasterer who would send his employees to B&L to pick up materials. On the above-mentioned date, the defendant came to B&L to retrieve one of Kendrick's orders, and sat in his usual waiting area. While the defendant was there waiting for the order to be completed, S.R. went to the kitchen to get something to eat.

According to S.R., while she was preparing something to eat, the defendant came in the kitchen, stood behind her, pushed her up against the counter, and began grazing her arm with his hand. He then put his hand inside of her overall pants, underneath the waistband of her underwear, and kissed her on the cheek.² As the defendant pushed up against her from behind, S.R. felt his penis become erect. S.R. used her left arm to push the defendant back, and he walked away. Several weeks later, L.C. asked S.R. to come to work with her again, but S.R. refused and disclosed the incident. Thereafter, on July 24, 2019, L.C. called 911 and reported the incident.

The case was assigned to Deputy Edward Gornor with the St. Tammany Parish Sheriff's Office. Deputy Gornor arranged for S.R. to be interviewed at the Children's Advocacy Center's Hope House and interviewed and medically examined at the Audrey Hepburn Care Center. He also executed a warrant for the defendant's arrest.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues the trial court erred in denying his challenge for cause of prospective juror Ford. He argues the error is reversible.

Pursuant to La. Code Crim. P. art. 797(2), the State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. Additionally, La. Code Crim. P. art. 797(4) provides that the State or the defendant may challenge a juror for cause on the ground that the juror will not accept the law as given to him by the court. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Mills, 2013-0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 487, writ denied, 2014-2027 (La. 5/22/15), 170 So.3d 982, and writ denied sub nom, State ex rel Mills v. State, 2014-2269 (La. 9/18/15), 178 So.3d 139. However, a prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if, after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Baker, 2023-1036 (La. App. 1st Cir. 10/18/24), 2024 WL 4522611, *2 (unpublished). Prejudice is presumed when the trial court erroneously denies a challenge for cause and the defendant has exhausted his peremptory challenges. State v. Holmes, 2022-0328 (La. App. 1st Cir. 10/6/23), 377 So.3d 260, 265, writs denied, 2023-01359, 2023-01484 (La. 3/19/24), 381 So.3d 708. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. Id.

A trial court is afforded broad discretion in determining whether to strike a juror for cause because of the trial court's ability to form a first-person impression of prospective jurors during voir dire. State v. Diggs, 2019-0956 (La. App. 1st Cir. 12/27/18), 294 So.3d 487, 491, writ denied, 2020-00181 (La. 7/24/20), 299 So.3d 69. The trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning, whereas the reviewing court reviews the matter only on a transcript in a record. State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 627, cert. denied sub nom, Dorsey v. Louisiana, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). Therefore, the trial court's rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. Diggs, 294 So.3d at 492.

In this case, the particular response at issue came after the prosecutor asked the second panel of prospective jurors if they personally, a loved one, a close friend, or a family member had ever been a victim of a sex crime. The prospective juror at issue asked to speak privately. After being granted permission to approach the bench, she stated her daughter, who was about the same age as the victim in this case, had a traumatic experience when she was thirteen years old. The prospective juror added, “I feel like I would undoubtedly feel like with the victim [sic].” She noted the perpetrator was seventeen years old. She stated they decided to “let it go” after a detective spoke to the perpetrator's family, further noting the perpetrator was leaving for military service. She mentioned therapy just before the trial court interjected to apologize for her experience and to invite counsel to ask any follow-up questions. Counsel declined to ask any questions.

The prospective juror was later directly questioned by the State about her children, as she replied in the affirmative when specifically asked if they ever lied. When asked to explain how she could determine her daughter was lying she replied, “Nervousness. Not making eye contact.” Defense counsel later challenged the prospective juror for cause, stating, “She is the one who approached the bench, said she had a daughter who was the victim of this similar crime and she didn't think she could be fair based on her daughters [sic] experience.” The State responded, “I know she was fearful at the beginning but she continued on the panel and participated actively. She was not emotional. She gave good answers.”

The trial judge then stated he recalled the prospective juror's statement regarding her daughter but did not recall her stating she would have an inability to be fair and impartial. Defense counsel then stated, “I think based on the experience that her daughter went through, she didn't think that she could be fair.” The prosecutor then told the trial judge she thought the prospective juror stated she could be fair. In response, defense counsel stated, “I don't know the answer, Judge. I thought I heard she could not be fair.” The trial judge denied the challenge for cause, stating, “The [c]ourt's recollection is she did not give any indication that that would prevent her from being fair or impartial or create any bias toward the defendant.” Defense counsel did not object to the trial judge's ruling. Defense counsel used his eleventh peremptory challenge to strike the prospective juror. Subsequently, the defendant exhausted all twelve of his peremptory challenges.³

We note the prospective juror did not directly state that she could not or would not be fair and impartial, defense counsel made no effort to question her in that regard, and just prior to the trial court's ruling, defense counsel expressed uncertainty as to the basis for his challenge. Moreover, as the defendant concedes on appeal and the record reflects, defense counsel did not contemporaneously object to the trial court's denial of his challenge for cause.

Louisiana Code of Criminal Procedure article 800(A) provides:

A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of the objection.

The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. Irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence. State v. Bowden, 2015-0183 (La. App. 1st Cir. 9/18/15), 2015 WL 5516143, *3 (unpublished). Because the defendant did not contemporaneously object to the denial of his challenge for cause, this assignment of error is not preserved for appellate review. See La. Code Crim. P. art. 800(A); State v. Sagastume, 2022-01824 (La. 12/8/23), 379 So.3d 1243.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant argues the trial court erred in admitting the testimony of L.C. regarding a similar, unreported incident involving the defendant and L.C. that L.C. claimed happened a year to a year and a half before the incident involving S.R. that was the subject at trial. The defendant argues the evidence was used to portray him as having a bad character.

Prior to trial, the State filed a notice of its intent to offer evidence of the incident involving the defendant and L.C. pursuant to La. Code Evid. arts. 412.2 and 404(B), arguing that the incident demonstrated the defendant's sexually assaultive behavior had occurred previously and in the same manner. The defendant filed an opposition arguing that the evidence was overly prejudicial and that the incident involving L.C. was not admissible under Article 412.2 because L.C. was not a child when it occurred. Finally, the defendant argued the evidence would lead the jury to convict on a purely emotional and improper basis. At the pretrial hearing, the trial court rejected the defendant's arguments, ruling that, based on the representation of what L.C.’s testimony would be, the testimony fell within Article 412.2.⁴

At trial, L.C. testified that about a year and a half before the incident involving S.R., the defendant approached her from behind at their old shop, pressed his whole body against her, and placed his hands on her hips and buttocks. She stated she nudged him back and he just stood there, then put his hands up and left. L.C. denied telling S.R. about the incident, but explained she always instructed S.R. to be careful around strangers and cautious of everyone, though she said she did tell S.R. that the defendant gave her “weird vibes.” She stated she informed a couple of employees of her experience and thereafter made an effort not to be alone with the defendant.

Louisiana Code of Evidence article 412.2 provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

The legislature enacted La. Code Evid. art. 412.2 in 2001 to loosen restrictions on “other crimes” evidence and to allow evidence of “lustful disposition” in cases involving sexual offenses. State v. Lafont, 2023-0086 (La. App. 1st Cir. 9/15/23), 375 So.3d 1002, 1007. In 2004, the legislature amended La. Code Evid. art. 412.2’s language from allowing admission of “evidence of the accused's commission of another sexual offense,” to the above language, allowing “evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children[.]”⁵ See La. Acts 2004, No. 465, § 1. This revised language significantly broadened the scope of evidence admissible under La. Code Evid. art. 412.2. LaFont, 375 So.3d at 1007-08.

However, the balancing test set forth in La. Code Evid. art. 403, which insures the fundamental fairness of the proceedings, specifically applies to La. Code Evid. art. 412.2. LaFont, 375 So.3d at 1008. Ultimately, questions of relevancy and admissibility of evidence are discretion calls for the trial court. Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Willie, 2020-0340 (La. App. 1 Cir. 3/11/21), 2021 WL 925922, *3 (unpublished); LaFont, 375 So.3d at 1008.

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. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. See La. Code Evid. art. 402; State v. Germany, 2021-1614 (La. App. 1 Cir. 9/26/22), 353 So.3d 804, 820, writ denied, 2022-01568 (La. 1/11/23), 352 So. 3d 983. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403; Germany, 353 So.3d at 820.

On appeal, the defendant argues that the evidence does not indicate a lustful disposition towards children in accordance with Article 412.2, because L.C. was an adult when the act allegedly occurred. He also argues the evidence was only introduced to lead the jury to make an improper, emotional decision. Further, he argues the evidence was highly prejudicial and that it had no probative value. Moreover, the defendant argues for the first time that L.C.’s claim is suspicious and unreliable, noting L.C. only disclosed this incident after S.R. made her claim against the defendant.

Initially, we note it is not necessary, for purposes of Article 412.2 testimony, for a defendant to have been charged, prosecuted, or convicted of the “other acts” described. Furthermore, Article 412.2 “does not limit the admissibility of prior acts only to those identical or similar in nature.” State v. Wright, 2011-0141 (La. 12/6/11), 79 So.3d 309, 315. While the defendant argues the evidence was not admissible under Article 412.2 because L.C. was not a minor, Article 412.2 was enacted to allow evidence of “sexually assaultive behavior” or “lustful disposition” in cases involving sexual offenses. See Lafont, 375 So.3d at 1007-08. Hence, the article specifically applies to the admission of two types of evidence: 1) the accused's commission of another crime, wrong, or act involving sexually assaultive behavior; or 2) the accused's commission of acts which indicate a lustful disposition toward children. See La. Code Evid. art. 412.2(A); La. Acts 2004, No. 465, § 1; Lafont, 375 So.3d at 1008.

In State v. Curtis, 2008-0657 (La. App. 1st Cir. 2/13/09), 2009 WL 385783 (unpublished), the defendant was convicted of indecent behavior with a juvenile. In that case, the conviction was based on evidence the defendant inappropriately groped a sixteen-year-old employee by reportedly grabbing her and touching her breasts while she was in the kitchen at work. Curtis, 2009 WL 385783 at * 1. At the pretrial hearing, two witnesses testified regarding their personal observations of the defendant inappropriately touching several other female employees. The trial court ruled that the evidence was admissible under Articles 412.2 and 403 and would be permitted at the trial. On appeal, the defendant argued the trial court allowed inadmissible evidence under Article 412.2, because the other allegations involved adult victims and was dissimilar to the act charged in that case. In upholding the conviction, this court disagreed with the defendant's characterization of the evidence and held that where the evidence showed a pattern of inappropriate behavior by the defendant towards females in a place of business, “[t]he fact that the other incidents did not involve children is of no moment.” Curtis, 2009 WL 385783 at *5-6.

Likewise, we find the incident involving the defendant and L.C. similar to the incident that was the subject at trial, showing a pattern of inappropriate behavior towards female victims in a place of business, with no regard to the age of the victim. Regarding the defendant's argument that L.C.’s claim was suspect and unreliable due to the timing of the disclosure, we note the defendant did not challenge the evidence on this basis below in his opposition, at the pretrial hearing, or at trial.⁶ It is well-settled a defendant is limited on appeal to the grounds for the objections articulated at trial. A new basis for an objection cannot be raised for the first time on appeal. This rule applies to instances where a party objected to the introduction of evidence at trial on one ground but either adds to or changes the basis for challenging the evidence on appeal. State v. Henry, 2019-65 (La. App. 3 Cir. 12/18/19), 287 So.3d 847, 871. Thus, the defendant failed to preserve this argument for appeal. At any rate, we note defense counsel had ample opportunity to cross-examine L.C. regarding her credibility at trial. Furthermore, such matters concern the weight of the evidence, as opposed to the admissibility of the evidence. State v. Hicks, 2008-0511 (La. App. 1st Cir. 9/19/08), 2008 WL 4287559, *6 (unpublished), writ denied sub nom, State ex rel. Hicks v. State, 2008-1986 (La. 5/15/09), 8 So.3d 578.

Herein, the evidence at issue consisted of “sexually assaultive behavior” by this defendant against another female, in which he pressed his body against her from behind, while he was working for the same business as in the instant offense. Based on the similarities between the defendant's behavior with S.R. and L.C., we find the evidence of other sexually assaultive behavior was highly relevant and probative to show the defendant's propensity to engage in unwanted, inappropriate physical conduct of a sexual nature in a place of business. When balanced against its prejudicial effect, the probative value of the evidence was not outweighed by the danger of unfair prejudice under Article 403. Accordingly, we find no abuse of the trial court's discretion in determining the evidence was admissible under La. Code Evid. art. 412.2. Assignment of error number two is without merit.

PATENT ERROR REVIEW

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

The number of persons required for a jury in a criminal case is dictated by La. Const. art. I, § 17(A), which provides, in pertinent part, as follows:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict․ A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

Louisiana Code of Criminal Procedure art. 782(A) provides, in pertinent part, that “[a] case in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.”

In this case, the defendant was charged with and convicted of sexual battery and indecent behavior with juveniles, crimes punishable by imprisonment with or without hard labor. La. R.S. 14:43.1(C)(1); La. R.S. 14:81(H)(1). Thus, a six-person jury was required for these offenses. However, the record reflects that the defendant was tried by a jury of twelve, and all twelve jurors concurred in the verdict. Thus, in the instant case, trial error occurred with respect to the number of jurors composing the jury.

Nevertheless, the error in trying a six-person jury offense in a twelve-person jury forum falls within the vast category of trial errors which are subject to harmless error analysis and which warrant reversal only where the defendant is actually prejudiced. State v. Brown, 2011-1044 (La. 3/13/12), 85 So.3d 52, 53 (per curiam). In Brown, the Louisiana Supreme Court found an error with respect to jury size to be a waivable trial error. The Court found the defendant therein “acquiesced in the error [of trying a six-person jury offense in a twelve-person jury forum] by actively participating in the selection of a twelve-person jury without objection at any stage of the proceedings and thereby waived any relief on appeal on grounds that the panel selected was composed of a greater number of jurors than required by law.” Brown, 85 So.3d at 53.

Similarly, in the instant case, the defendant acquiesced in the error of trying six-person jury offenses in a twelve-person jury forum. He raised no objection at voir dire and, thereafter, he participated in the selection of the twelve-person jury. Additionally, he failed to file a motion in arrest of judgment.⁷ Thus, any relief based on the wrong jury forum was waived. See State v. Dahlem, 2013-0577 (La. App. 1st Cir. 6/18/14), 148 So.3d 591, 597, writ granted, 2014-1555 (La. 3/27/15), 161 So.3d 646, and aff'd, 2014-1555 (La. 3/15/16), 197 So.3d 676.

Moreover, as noted, the verdicts were unanimous in this case. The defendant received six more factfinders than constitutionally mandated, and was thus afforded greater protection than required by law. The defendant suffered no actual prejudice, as any six of the twelve jurors in this case would have rendered a guilty verdict because all twelve jurors found the defendant guilty on each count. Therefore, we find that the error of impaneling a twelve-person jury in the trial of a six-person offense was harmless. See State v. Miller, 2018-639 (La. App. 3d Cir. 3/27/19), 269 So.3d 806, 813-14, writ denied, 2019-00659 (La. 11/5/19), 281 So.3d 670.

CONVICTIONS AND SENTENCES AFFIRMED.

I respectfully concur. I believe that the colloquy at the time counsel for defendant attempted to strike a prospective juror for cause should qualify as a contemporaneous objection as required by La. Code of Crim. Pro. Art. 800(A). According to the record, the defense set forth its objection and grounds for challenging the prospective juror, and the prosecution responded. Thereafter, the trial ruled on the objection and denied it. The need for another objection seems superfluous. Because of the trial court's decision, the defendant was unable to utilize a challenge for cause and instead was compelled to exercise one of its allotted peremptory challenges. Given the record before us which outlines the trial court's opportunity to rule on counsel for defendant's challenge to the prospective juror, this Court should be allowed to review the assigned error on appeal.

For these reasons, I concur.

FOOTNOTES

1.   S.R. was born on October 13, 2004. Under La. R.S. 46:1844(W), the victim and her mother will be identified by their initials.

2.   S.R. denied that the defendant's hand was inserted far enough to touch her vaginal area.

3.   In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges. In all other cases, each defendant shall have six peremptory challenges. La. Code Crim. P. art. 799. The instant trial involved offenses not necessarily punishable by imprisonment at hard labor; therefore, pursuant to La. Code Crim. P. art. 799, either side should have only been granted six peremptory challenges. See La. R. S. 14:43.1(C)(1); La. R.S. 14:81(H)(1). However, in this case both the State and the defense erroneously received twelve peremptory challenges each. As the defendant was afforded a greater number of challenges than required by law, and, thus additional protections, we find no prejudice. Accordingly, this error was harmless. See La. Code Crim. P. art. 921; State v. Miller, 2018-639 (La. App. 3d Cir. 3/27/19), 269 So.3d 806, 814 n.4, writ denied, 2019-00659 (La. 11/5/19), 281 So.3d 670.

4.   It is well-settled that the trial court is not required to hold a pretrial hearing under Article 412.2. See State v. Williams, 2002-1030 (La. 10/15/02), 830 So.2d 984, 987. In this case, the trial court allowed the parties to introduce evidence and make arguments prior to ruling on the admissibility of the prior act. The trial court inquired as to the facts of the other incident, asking, “Does it stop with essentially coming behind [L.C.] and brushing [?]” The State replied, “It is just coming up against her back side. She can feel his entire body behind her.”

5.   Article 412.2 uses the term “sexually assaultive behavior” as a general expression that is not restricted to the statutory definition of “assault” given in La. R.S. 14:36. State v. Willie, 2020-0340 (La. App. 1st Cir. 3/11/21), 2021 WL 925922, *3 (unpublished).

6.   As the State indicated in its notice of intent, defense counsel was provided with L.C.’s recorded statement in discovery.

7.   Louisiana Code of Criminal Procedure art. 859 provides, in pertinent part, that the court shall arrest the judgment when the tribunal that tried the case did not conform with the requirements of La. Code Crim. P. arts. 779, 780 and 782.

PENZATO, J.

Balfour, J.J., concurs with reasons