STATE OF LOUISIANA v. DEREK POLK (2026)

A grand jury indicted the defendant, Derek M. Polk, with first degree rape when the victim is under the age of thirteen years, a violation of La. R.S. 14:42(A)(4).¹ He entered a plea of not guilty.² Following a jury trial, the defendant was found guilty as charged.³ The defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which the trial court denied. The trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant filed a motion to reconsider sentence, which the trial court denied. The defendant now appeals, raising three assignments of error. For the following reasons, we affirm the defendant's conviction and sentence.

STATEMENT OF FACTS

On December 9, 2021, Delaundra Bordelon, a child welfare investigator at the Department of Children and Family Services (“DCFS”), received a report of homelessness concerning seventeen-year-old K.A. When Ms. Bordelon located K.A., K.A. made allegations concerning her six-year-old paternal half-brother, S.A., the victim in the instant case.⁴ On December 16, 2021, Ms. Bordelon interviewed S.A. at his elementary school, and S.A. disclosed acts of sexual abuse by his mother, B.M.S. DCFS contacted the St. Tammany Parish Sheriff's Office (“STPSO”), and the case was assigned to Detective Matt Bauer. Ms. Bordelon took S.A. to the Children's Advocacy Center Hope House in Covington, Louisiana (“CAC”) for an interview, conducted by April McCormick, a forensic interviewer. Ms. Bordelon and Detective Bauer observed the interview.

During the interviews by Ms. Bordelon and Ms. McCormick, S.A. described incidents of oral and vaginal intercourse with his mother that he said took place in his mother's truck. S.A. indicated the defendant, who he called “Daddy Derek,” would be on the phone with B.M.S. during the incidents, telling her what sexual acts to perform with S.A.⁵

Detective Bauer contacted Rayburn Correctional Facility (“Rayburn”), where the defendant was incarcerated, and received recordings of jail calls between the defendant and B.M.S. from June 1, 2021 through December 2021. On December 21, 2021, Detective Bauer arrested B.M.S. She was advised of her Miranda ⁶ rights, executed a waiver of rights form, and confessed to the sexual abuse of S.A. Thereafter, on January 10, 2022, Detective Bauer contacted the defendant. The defendant was advised of his Miranda rights, executed a waiver of rights form, and gave a recorded interview, in which he admitted to S.A. being present during “phone sex” between him and B.M.S. and to S.A. being part of their “fantasy.” Detective Bauer obtained and executed a warrant for the defendant's arrest on the instant offense.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues the State presented insufficient evidence to prove beyond a reasonable doubt that he was a principal to first degree rape. Thus, he contends the trial court erred in denying his motion for post-verdict judgment of acquittal and motion for new trial.⁷

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV, La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Thomas, 2019-0409 (La. App. 1st Cir. 10/25/19), 289 So.3d 1030, 1037.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Currie, 2020-0467 (La. App. 1st Cir. 2/22/21), 321 So.3d 978, 982.

When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Southall, 2022-0746 (La. App. 1st Cir. 6/2/23), 369 So.3d 925, 930, writ denied, 2023-00875 (La. 2/6/24), 378 So.3d 750.

Louisiana Revised Statutes 14:41(A) defines “rape” as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. La. R.S. 14:41(B) (prior to amendment by 2022 La. Acts, No. 173, § 1). First degree rape, in pertinent part, is a rape committed where the sexual intercourse is deemed to be without lawful consent of the victim because it is committed when the victim is under the age of thirteen years. La. R.S. 14:42(A)(4). Lack of knowledge of the victim's age shall not be a defense. La. R.S. 14:42(A)(4).

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals to that crime. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Dyson, 2016-1571 (La. App. 1st Cir. 6/2/17), 222 So.3d 220, 229, writ denied, 2017-1399 (La. 6/15/18), 257 So.3d 685. First degree rape is a general intent crime. See La. R.S. 14:11; La. R.S. 14:42; State v. Glaze, 2024-0329 (La. App. 1st Cir. 4/24/25), 2025 WL 1189445, *3 (unpublished). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).

Thus, the State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting in its commission, or by directly or indirectly counseling or procuring another to commit the crime. Under this theory, the defendant need not actually have sexual intercourse with the victim to be found guilty of the crime. See State v. Garcia, 44,562 (La. App. 2d Cir. 10/28/09), 26 So.3d 159, 163, writ denied, 2009-2583 (La. 2/11/11), 56 So.3d 992. Moreover, as stated above, even if not present, a person can be convicted of a crime, if otherwise involved as a principal. See La. R.S. 14:24.

In this case, S.A.’s initial disclosure was to Ms. Bordelon. At trial, Ms. Bordelon testified S.A. told her that he and his “Mommy” would get in her truck and take their clothes off. Though stating it was a secret, he continued his disclosure, describing acts of oral and vaginal intercourse. Ms. Bordelon confirmed that her notes from this initial interview reflect that S.A. told her that after he and his mother took their clothes off, they played “Daddy Derek is inside her.” Ms. Bordelon testified that it was her understanding that in this context, “Daddy Derek” was a “dildo.” Ms. Bordelon noted that the defendant was always on the phone during these instances, telling B.M.S. to put S.A.’s penis inside of her, and her mouth on S.A.’s penis.

Ms. Bordelon testified that S.A.’s disclosure was consistent with the information she received from from K.A., S.A.’s seventeen-year-old half-sister. Ms. Bordelon later took S.A. to the CAC for an interview, which she observed on a television monitor in another room. Ms. Bordelon testified that S.A. made disclosures during the CAC interview consistent with the information he disclosed to her at his school.

An audio and video recoding of the CAC interview was played for the jury. Near the beginning of the interview, Ms. McCormick asked S.A. what sort of things he liked to do for fun. S.A. replied, “I like to do for fun is to, to go to my truck and have some sex.” S.A. explained that “sex” is when “a guy” puts his “period” (which he interchangeably referred to as his “wee-wee”) in a girl's “butt.” S.A. was shown anatomical drawings of female and male figures and identified a “period” or “wee-wee” as the penis on the male figure, and identified “butt” as the vagina on the female figure.

S.A. said his mother would sometimes put her mouth “on and off’ his “wee-wee” because “Daddy Derek” told her to do so. S.A. also said his mother “put my wee-wee inside her when we're on the phone with Daddy Derek.” When asked for further explanation, S.A. reiterated that “Daddy Derek” would be on the phone with his mother and his mother would say “Oh, baby” to “Daddy Derek” when he and his mother had “sex in the truck.” S.A. further said his mother would sometimes have “Daddy Derek” inside of her. S.A. again identified the vagina on the female diagram to show where “Daddy Derek” was inside of his mother. When Ms. McCormick asked how “Daddy Derek” was inside of his mother, S.A. said, “because mom has some sexy toys.” S.A. described his mother's “sexy toys” in detail. S.A. said what occurred in the truck happened “one hundred nights.” S.A. also said he liked having sex and stated his sister K.A. once opened the truck door when he and his mother were in the truck naked.

Ms. McCormick testified S.A. had the normal imagination of a six-year-old child. She agreed there were examples of fantasy in the interview, including S.A. talking about playing kitchen or restaurant and saying he was in his house watching a movie when he was behind a chair in the interview room. She denied that she tried to manipulate S.A. or coach him into giving an answer.

On the day of S.A.’s initial disclosure and the CAC interview, Ms. Bordelon interviewed B.M.S. through Zoom. B.M.S. told Ms. Bordelon that S.A. would sometimes overhear her and the defendant on the phone having conversations of a sexual nature. B.M.S. further told Ms. Bordelon that she and the defendant would sometimes discuss fantasies of a sexual nature that involved her having sex with a child, with the defendant on the phone telling her what to do. She told Ms. Bordelon that S.A. kept begging her to put his penis in her mouth, so she gave in, stating it was the heat of the moment, and the defendant was always on the phone with them while it was happening.

At the time of S.A.’s initial disclosure to Ms. Bordelon, B.M.S. and S.A. were living in a hotel room at the LaQuinta Inn in Slidell, Louisiana. Detective Bauer testified that on December 21, 2021, he obtained and executed an arrest warrant for B.M.S. and a search warrant for B.M.S.’s hotel room. During the search, Detective Bauer recovered and collected a bag that contained objects classified as “sex toys” that fit the description given by S.A. in his CAC interview.

Dr. Judith Dodd, a pediatric forensic nurse practitioner with Children's Hospital in New Orleans, testified at the trial as an expert in child abuse pediatrics. Dr. Dodd performed a forensic medical evaluation of S.A. on December 23, 2021, which included a recorded interview that was played for the jury.

S.A. did not immediately disclose abuse to Dr. Dodd, but ultimately disclosed acts consistent with his spontaneous disclosures to Ms. Bordelon and Ms. McCormick. Specifically, when asked whether anyone had ever looked at his private parts, S.A. stated his mother did so more than one time, later specifying, “one hundred times she looked at it.” He said B.M.S. put her hand on his “wee-wee,” later adding that she would move and squeeze her hand. S.A. also stated B.M.S. put her mouth on his “wee-wee” more than one time. The defendant said his “wee-wee” felt “good” because they were having “sex.”

S.A. further stated they would have sex with “Daddy Derek” because he was in jail, and that his mother used “sexy toys.” When asked what they do with the “sexy toys,” S.A. indicated that B.M.S. would put them inside of her “butt.” He denied that he ever inserted one of the toys or that one was ever inserted in him. At one point, S.A. also said B.M.S. asked him to put “Daddy Derek” inside her “wee-wee.” When asked to explain, S.A. stated, “I put my wee-wee in her butt.” S.A. also stated that “Daddy Derek” would have sex with his mother, but reiterated the defendant was in jail. Dr. Dodd testified she could not get clarification from S.A. as to how “Daddy Derek” was having sex with B.M.S. while he was in jail. She noted S.A. was trying to convey something that he understood, but she had difficulty with how he was trying to explain it. When asked if he ever told anyone, S.A. stated his mother told him to keep it a secret. However, he confirmed that he told Ms. Bordelon at school, noting that he was told it was okay to tell her secrets.

Dr. Dodd further testified that children of S.A.’s age often do not have a working knowledge of anatomy and use the term “butt” to describe all genitals. Dr. Dodd confirmed that children may not initially realize there is anything wrong with the sexual behavior that they are doing or that is being done to them, and may consider it normal. Dr. Dodd noted S.A. did not use negative terms when describing his sexual experiences with B.M.S., and Dr. Dodd believed S.A. may have been protecting his mother when he declined to classify such conduct as inappropriate.

Dr. Dodd testified that it was possible for a six-year-old to get an erection, noting that is a normal function of the body and does not require sexual arousal. Dr. Dodd also testified that a child as young as six years old can ejaculate, though no sperm would be contained therein, only fluid. Dr. Dodd testified everything she learned about S.A. was consistent with child sexual abuse.

At trial, S.A., who was eight years old at the time, testified he could not remember the things that he would do with his mother in the truck. S.A. indicated he was a little nervous, and confirmed that he felt weird being in front of strangers in the courtroom. S.A. confirmed that he called the defendant “Daddy Derek” back when he was five or six years old. S.A. testified he was living with his maternal grandmother at the time of trial, and confirmed that she told him he was not supposed to call the defendant “Daddy Derek” any more, and should not tell anybody about what happened to him. S.A. agreed he was listening to his grandmother by not saying what happened. S.A. also testified that he loved his mother very much and admitted he did not want to say anything that would hurt her.

Following S.A.’s testimony, Dr. Dodd, who remained in the courtroom for S.A.’s testimony, was recalled to the stand. She testified that oftentimes, when children are asked questions about topics that are very sensitive or emotional for them, instead of refusing to answer or lying, they will say they do not know or remember the subject matter. Dr. Dodd noted that S.A. did not recant his prior claims and was forthright in saying his grandmother had told him not to talk about what he experienced. She reiterated that she did not see any evidence S.A. was coached into describing sexual contact between him and B.M.S.

Lieutenant Colonel Richard Forbes, an investigator at Rayburn, testified at trial that he maintained the jail call system at Rayburn Correctional Facility. Lieutenant Colonel Forbes identified audio recordings of several jail calls between the defendant and B.M.S. that were played for the jury. In a call that took place on July 17, 2021, the defendant asked B.M.S. to let someone else “take care” of her, which she indicated she was not comfortable with, explaining she would feel like she was cheating on the defendant. B.M.S. told the defendant she wanted their sexual relationship to be just “me and you.” The defendant asked, “What about [S.A.]?” B.M.S. replied, “No,” and reiterated she did not want anyone else “in the mix.” In a subsequent call on September 16, 2021, the defendant told B.M.S. he wanted to involve S.A., to which B.M.S. expressed concern that S.A. would tell the wrong person and they would “end up getting caught.”

By October 24, 2021, B.M.S. and S.A. were staying at the LaQuinta Inn, in a room with two beds. In a call that took place that night,⁸ S.A. can be heard crying while the defendant and B.M.S. were engaged in phone sex. When B.M.S. told the defendant that S.A. was watching her, the defendant told B.M.S. to allow S.A. to “come over” and to ask S.A. if “he wants to help.” B.M.S. can be heard asking S.A. and told the defendant, “He said yeah.” The defendant told B.M.S. to perform oral sex on S.A., and the audio recording indicates she did. The defendant then told B.M.S. to engage in vaginal sexual intercourse with S.A. S.A. is heard saying, “I'm trying,” and the defendant instructed B.M.S. how to assist S.A. in the act. After several minutes, the defendant asked, “He likes that?”, and both B.M.S. and S.A. said yes. The phone call cut off at some point, and when the defendant called back, S.A. could be heard talking to B.M.S. The defendant instructed B.M.S. to “keep going.” B.M.S. explained to the defendant that S.A. was laying on top of her, and while she thought he was tired he was just hugging her. B.M.S. can be heard giving S.A. instructions, and indicated to the defendant that S.A. was close to ejaculating. B.M.S. is heard telling S.A. not to stop, and S.A. is heard saying “I love you.”

Neither the defendant nor the codefendant, B.M.S., testified at trial, but each participated in recorded interviews with Detective Bauer. The recorded video interview with B.M.S. was played for the jury. B.M.S. initially denied anything happened, but then fully confessed to repeatedly, on different occasions, performing oral sex on S.A. and to engaging in vaginal sexual intercourse with S.A. while she was on the phone with the defendant. According to B.M.S., she and the defendant wanted to “mix things up,” and began making things up to keep themselves aroused, including a fantasy involving a child. B.M.S. stated the sexual abuse of S.A. began in mid-July, when S.A. came into her truck when she was partially naked and “pleasing herself’ while on the phone with the defendant. According to B.M.S., S.A. wanted B.M.S. to put his penis in her mouth, and the defendant told her that if S.A. wanted her to, she should try it. B.M.S. admitted that the sexual abuse continued, “maybe twice a week,” while she was on the phone with the defendant. B.M.S. confirmed the defendant knew what was going on, gave directions, and encouraged the sexual abuse to “drag out” the fantasy.

Detective Bauer interviewed the defendant at Rayburn. The recorded video interview was played for the jury. The defendant said he had been romantic with B.M.S. since 2012, but was in and out of jail during the entirety of their relationship. He stated he talked to B.M.S. “daily” by phone, and acknowledged they participated in “phone sex.” The defendant said he “somewhat remembers” B.M.S. sharing her fantasy involving a child, stating he went along with her fantasy to keep her happy. Detective Bauer asked the defendant about what happened involving S.A. during one phone call in October, and the defendant stated he did not remember. The defendant acknowledged that sometimes he could hear S.A. in the background while he was having “phone sex” with B.M.S., but did not know where S.A. was. The defendant stated he encouraged what he thought was “role play,” but could not say what actually happened because he was not present and could not see it.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. The reviewing court does not determine whether another possible hypothesis has been suggested by the defendant which could explain the events in an exculpatory fashion; rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not have found proof of guilt beyond a reasonable doubt. State v. Fair, 2024-0759 (La. App. 1st Cir. 7/11/25), 417 So.3d 1166, 1177, writ denied, 2025-00933 (La. 1/21/26), 424 So.3d 1092.

On appeal, the defendant notes he was convicted of first degree rape of a victim under the age of thirteen while he was incarcerated and without any physical contact with the victim. He argues the State based their entire case on one recorded jail call wherein the defendant and B.M.S. are having “phone sex” and B.M.S. is claiming to the defendant that she is doing what the defendant is telling her to do. He argues he was engaging in fantasy, and the State offered no proof of the nexus between when he was recorded on the phone to when a first degree rape of S.A. actually occurred.

Based on the testimony and evidence presented at trial, we find the jury acted rationally when it rejected the defendant's hypothesis of innocence. We find the defendant's attempt to minimize his participation in the offense of first degree rape unconvincing. As previously stated, all persons concerned in the commission of a crime, whether present or absent, and whether they aid and abet in the commission of the act constituting the offense, or directly or indirectly counsel or procure another to commit the crime, are principals. See La. R.S. 14:24. A person who aids and abets another in a crime is just as liable as the person who directly commits it. State v. Womack, 47,639 (La. App. 2d Cir. 1/16/13), 109 So.3d 418, 424, writ denied, 2013-0304 (La. 9/20/13), 123 So.3d 163.

Further, as stated above, the defendant need not actually have sexual intercourse with the victim to be found guilty of the crime. Garcia, 26 So.3d at 163. Acting in concert, each person becomes responsible not only for his own acts, but for the acts of the other. State v. Reed, 2024-329 (La. App. 5th Cir. 4/2/25), 413 So.3d 1166, 1181, writ denied, 2025-00561 (La. 9/10/25), 415 So.3d 1277. Likewise, although not present at the scene, a person who directly counsels or procures another person to commit the crime is guilty of the offense as a principal. State v. Texada, 1999-1009 (La. App. 3d Cir. 2/2/00), 756 So.2d 463, 470-74, writ denied sub nom. State ex rel. Texada v. State, 2000-2751 (La. 6/29/01), 794 So.2d 824, and writ denied, 2015-2345 (La. 2/17/17), 215 So.3d 704 (though not present at the scene, defendant was guilty of attempted first degree murder, as a principal, as he directly counseled or procured codefendants, fellow members of his street gang, to fire guns at a group of people).

In this case, the defendant not only encouraged B.M.S. to commit the acts against S.A., the evidence presented at trial shows he initiated S.A.’s involvement, and was on the phone coaching, actively participating, and giving specific instructions in guiding the commission of the offense. The defendant's claim that he could not be present to see the occurrence of the offense has no bearing on his guilt, as there is no requirement that he be present to watch as the offense is being committed. The jury heard the October 24, 2021 jail call and could have rationally rejected the defendant's argument that he was engaging in fantasy and was not aware of S.A.’s actual involvement. Thus, the jury could have rationally found the State proved the defendant's guilt beyond a reasonable doubt by showing he served as a principal to the crime by aiding, abetting, directly counseling, and procuring B.M.S. in the commission of the offense, and therefore, was equally liable for the conduct B.M.S. directly committed.

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the elements of first degree rape of a victim under the age of thirteen years.

Accordingly, we find no merit in assignment of error number one.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant argues the trial court erred in admitting the CAC interview because S.A. could not recall any of the events he disclosed at the interview when he was called to testify at trial. The defendant contends S.A. was therefore unavailable to be cross-examined by the defense and the CAC interview was inadmissible hearsay. He argues the error was not harmless, contending the CAC interview contributed to the verdict.

A statement made by a minor victim to certain qualified persons may be recorded and introduced into evidence pursuant to La. R.S. 15:440.1 through 15:440.5. State v. Marks, 2022-0575 (La. App. 1st Cir. 5/17/23), 2023 WL 3493887, *8 (unpublished). Louisiana Revised Statutes 15:440.4 and 15:440.5 are designed to ensure the reliability of the videotaped oral statement of a child victim. Louisiana Revised Statutes 15:440.4(A) provides five requirements which must be satisfactorily proven before such a recording can be considered competent evidence. Louisiana Revised Statutes 15:440.5(A) provides eight requirements, some of which overlap those in La. R.S. 15:440.4(A), for the video to be admissible. The applicable provision herein is La. R.S. 15:440.5(A)(8), which provides that a videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if the protected person is available to testify.

At the outset, we note the defendant did not object to the admissibility of the CAC interview below on the basis of hearsay, and defense counsel only raised a challenge to foundation laid by the State. After the trial court ruled the proper foundation requirements had been met, defense counsel then argued there may be some leading questions midway into the interview.

An irregularity cannot be availed of after the verdict unless it was objected to at the time of occurrence. La. Code Crim. P. art. 841(A). Thus, to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the error. State v. Cockerham, 2017-0535 (La. App. 1st Cir. 9/21/17), 231 So.3d 698, 708, writ denied, 2017-1802 (La. 6/15/18), 245 So.3d 1035. The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant, procedural irregularity, or evidentiary mistake. State v. Pineda, 2018-0512 (La. App. 1st Cir. 12/21/18), 2018 WL 6718574, *3 (unpublished). Further, a defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. Id. Because the defendant did not challenge the admission of the CAC interview on the basis raised on appeal, this argument was not properly preserved for appeal.

Moreover, despite the defendant's assertion, this court has previously rejected the argument that the Constitution is so restrictive as to suggest that only effective cross-examination would be tolerated under the law. See State v. Eley, 2015-1925 (La. App. 1st Cir. 9/16/16), 203 So.3d 462, 470, writ denied, 2016-1844 (La. 9/6/17), 224 So.3d 982. The law requires only that the victim be available at trial to testify. A declarant's appearance and subjection to cross-examination at trial are all that is necessary to satisfy the Confrontation Clause, even if the declarant suffers from memory loss. Id. at 470-71.

In this case, S.A. was available to testify and, in fact, testified at trial, subject to cross-examination. S.A. did not refuse to testify and while he initially stated he did not remember what occurred, he subsequently indicated that he was following the instruction of his grandmother in not telling the jury what happened. Further, S.A. also testified that he loved his mother and did not want to say anything that would hurt her. The defendant made no attempt to cross-examine S.A. on the statements he made during the CAC interview. We find no error in the admission of the CAC videotape.

Accordingly, the argument raised in assignment of error number two was not preserved for appeal and further lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant argues the State should have severed the two defendants for trial when it was apparent that B.M.S. blamed both the defendant and S.A. for her actions in her statements to police and to DCFS. The defendant concedes a motion to sever was not filed in this case. He argues the prejudice was evident, as he had to defend himself against the State and the codefendant's minimization of her guilt. Thus, he argues the failure to sever the two defendants for trial was not harmless.

The failure to timely file a motion for severance or object to the joinder before trial operates as a waiver of the right to raise the issue of joinder on appeal. State v. Crocker, 551 So.2d 707, 710 (La. 1989); see also State v. Jarrell, 2007-1720 (La. App. 1st Cir. 9/12/08), 994 So.2d 620, 632. As the defendant concedes, no motion to sever was filed in this case. Thus, any alleged error related to the joinder of the defendants was waived.

Defendants who are jointly indicted shall be tried together unless the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. See La. Code Crim. P. art. 704. An accused is not entitled to a severance as a matter of right; the decision is one resting within the sound discretion of the trial judge. Justice does not require severance where only the extent of each defendant's participation in the offense is at issue. Whether justice requires a severance must be determined by the facts of each case. State v. Beals, 2015-0087 (La. App. 1st Cir. 7/7/16), 2016 WL 3655368, *11 (unpublished), writ denied, 2016-1525 (La. 6/5/17), 219 So.3d 339.

The courts have permitted a severance to codefendants whose defenses are antagonistic to each other. State v. Dilosa, 2001-0024 (La. App. 1st Cir. 5/9/03), 849 So.2d 657, 669, writ denied, 2003-1601 (La. 12/12/03), 860 So.2d 1153. Defenses are antagonistic when each defendant intends to exculpate himself by putting the blame for the offense on a codefendant. However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be present to justify a severance. Reversal of a conviction for failure to sever will not always be mandated unless prejudice can be shown. Id. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. State v. Reed, 2024-59 (La. App. 5th Cir. 12/30/24), 409 So.3d 980, 997, writ denied, 2025-00150 (La. 9/10/25), 415 So.3d 1279. A conviction will not be reversed on the ground that a defendant should have been granted a severance unless the defendant would probably not have been convicted had he been allowed a separate trial. Crocker, 551 So.2d at 710.

Based on our review of the record, we do not find codefendant B.M.S.’s defense was intended to exculpate herself by putting the blame for the offense on the defendant. Rather, she attempted to minimize her fault. This is more appropriately considered to raise the issue of the extent of participation of each defendant, which is not grounds for granting a severance. See Dilosa, 849 So.2d at 669-70. Moreover, on our review of the evidence herein, we find the defendant cannot show he “would probably not have been convicted” had he been tried separately. Crocker, 551 So.2d at 710. To the contrary, the jury was presented with overwhelming evidence of the defendant's guilt, including consistent pretrial statements by S.A. and jail call recordings allowing the members of the jury to actually hear the sexual abuse that took place in this case. There is no indication that a separate trial would have weakened the State's case against the defendant.

Accordingly, we find assignment of error number three was not preserved for appeal and is further without merit.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   The defendant was charged in the indictment with two counts of first degree rape of a victim under the age of thirteen (counts one and two). A codefendant was also charged in the indictment with counts one and two, and with one count of aggravated crime against nature of a victim under the age of thirteen (count three). In the interest of protecting minor crime victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), this court will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity. See State v. Hidalgo, 2023-375 (La. App. 5th Cir. 5/8/24), 389 So.3d 231, 233, n.2. Compare State v. R.W.B., 2012-0453 (La. 12/4/12), 105 So.3d 54 (per curiam). See also Uniform Rules of Louisiana Courts of Appeal, Rule 5-2. Thus, in this case, the codefendant charged in the indictment, B.M.S., the victim's mother, will be identified by initials only.

2.   One of the counts of first degree rape and count three were severed from the sole count of first degree rape tried in this case as to each defendant.

3.   Codefendant B.M.S. was also found guilty as charged. B.M.S. filed a separate appeal, and this court affirmed her conviction and sentence. See State v. B.M.S., 2024-1246 (La. App. 1st Cir. 3/24/26), ___ So.3d ___, 2026 WL 819717.

4.   S.A.’s date of birth is September 29, 2015.

5.   The defendant was incarcerated at Rayburn Correctional Facility during the time period of the offenses.

6.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

7.   We note an appellate court reviews a ruling on a motion for new trial only for errors of law. See La. Code Crim. P. 858; State v. Stalls, 2023-0829 (La. App. 1st Cir. 9/26/24), 405 So.3d 786, 790 n.3 (en banc), writ denied, 2024-01276 (La. 4/23/25), 406 So.3d 1177. The question of the legal sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. See La. Code Crim. P. art. 821. Thus, the only issue reviewable in this assignment of error is the constitutional sufficiency of the evidence, which was raised in the defendant's motion for post-verdict judgment of acquittal. Id.

8.   The defendant acknowledges on appeal that the call was “highly disturbing,” but argues it was fantasy.