STATE OF LOUISIANA v. ARIAS DAGOBERTO (2026)

In this criminal matter, the defendant, Arias Dagoberto ¹ (“Defendant”), appeals his conviction and sentence for first degree rape. For the reasons that follow, we affirm Defendant's conviction and sentence.

I. STATEMENT OF THE CASE

On October 21, 2021, Defendant was charged by grand jury indictment with committing first degree rape, in violation of La. R.S. 14:42. On November 8, 2021, Defendant pled not guilty.

The matter proceeded to trial on April 29, 2024, with jury selection, and concluded on May 1, 2024. The jury returned a verdict finding Defendant guilty as charged. On July 19, 2024, the district court denied Defendant's motion for post-verdict judgment of acquittal, motion for downward departure, and motion for new trial. After Defendant waived sentencing delays, the district court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence. This timely appeal followed.

II. STATEMENT OF THE FACTS

At trial, the State presented seven witnesses, including the victim, who was a female under the age of thirteen at the time of the offenses (“Victim”), as well as the following witnesses: Victim's mother (“Mother”); Victim's father (“Father”); Kellie Dejan; New Orleans Police Department (“NOPD”) Detective Arnisha Ambrose; Julia Fisher, a forensic interviewer at the New Orleans Children's Advocacy Center; and Dr. Paige Culotta, a child abuse pediatrician at Children's Hospital. Defendant and his sisters, Damaris Amador and Ana Arias, testified on his behalf. The testimony at trial described the events leading to Victim's disclosure, the subsequent investigation, and the medical and forensic evaluations that followed. The evidence is summarized chronologically below.

A. Disclosure at School

On March 25, 2021, Victim, a sixth-grade student at a New Orleans school, was reported by her teacher to be in distress. The teacher contacted Kellie Dejan, a school social worker, to assist Victim.

Dejan testified that Victim appeared visibly upset, crying and having difficulty breathing. Victim told Dejan that she felt “weird” and feared that other students would judge her. During the conversation, Victim disclosed that she had been experiencing panic attacks for several weeks because Defendant made her feel uncomfortable. Victim further reported that Defendant had touched her inappropriately beneath her clothing on multiple occasions beginning when she was approximately eight or nine years old.

Victim explained that she had not previously disclosed the conduct because she was afraid and believed Mother would not believe her. Dejan also testified that Victim expressed thoughts of self-harm. Following the disclosure, Dejan notified the school resource officer and law enforcement and accompanied Victim to Children's Hospital.

B. Emergency Room Visit and Behavioral Health Admission

Victim was transported to Children's Hospital later that day for evaluation. Testimony indicated that Victim reported anxiety, depression, and having experienced a panic attack earlier at school. Because Victim expressed suicidal ideations, she was admitted to the Behavioral Health Center for further observation and treatment.

C. Law Enforcement Investigation

Detective Arnisha Ambrose of the New Orleans Police Department Special Victims Section Child Abuse Unit was assigned as the lead detective on March 25, 2021. Detective Ambrose met with Dejan and later interviewed Defendant and Victim's parents.

Detective Ambrose testified that, due to the length of time between the alleged conduct and Victim's disclosure, investigators were unable to obtain physical evidence such as injuries or DNA that might otherwise have been present shortly after the alleged incidents.

Detective Ambrose obtained an arrest warrant for Defendant and a search warrant for the residence where Victim had lived. By that time, Victim and her family had relocated.

D. Forensic Interview

While admitted to the Behavioral Health Center, Victim participated in a recorded forensic interview conducted by Julia Fisher, a forensic interviewer at the New Orleans Children's Advocacy Center.

Fisher testified that Victim described conduct that occurred repeatedly over a period of time rather than identifying a single specific event. Victim reported that the incidents generally occurred on Saturdays when Mother was at work. Victim stated that Defendant would return home from work and eventually restrain her before engaging in sexual conduct.

Victim indicated that the conduct occurred periodically beginning when she was approximately eight or nine years old and continued for several years. Victim further stated that the conduct stopped sometime in early 2020 when Mother began returning home earlier from work. During the interview, Victim initially had difficulty explaining what she meant by the term “rape,” but later clarified that she was referring to acts involving sexual penetration.

E. Medical Examination

Dr. Paige Culotta, a child abuse pediatrician at Children's Hospital, conducted a medical evaluation of Victim and obtained a medical history from her. Dr. Culotta testified regarding the procedures typically used in pediatric evaluations involving allegations of sexual abuse, including obtaining a medical history from the child and caregiver, assessing the information provided, and performing a physical examination when appropriate.

During the medical history portion of the evaluation, Victim reported that Defendant had touched her inappropriately and had engaged in sexual acts with her beginning when she was approximately eight or nine years old. Victim also reported being struck during some of these incidents.

Victim declined the genital portion of the physical examination. Dr. Culotta explained that injuries to genital tissue often heal quickly and may not be detectable after seventy-two hours. She further testified that DNA evidence likewise may not be recoverable after that time. Because Victim's disclosure occurred well after the alleged incidents, Dr. Culotta testified that the absence of physical findings was not unexpected.

Dr. Culotta also testified generally regarding the medical context of child sexual abuse evaluations, explaining that delayed disclosure is common and that children may provide information gradually over time. She further testified that variations in a child's description of events, including differences in detail or timing, may occur in such cases.

F. Victim's Trial Testimony

Victim, who was under the age of thirteen during the time period she described, testified that she participated in the forensic interview and that the statements she made during that interview were true. Victim testified that Defendant engaged in acts with her that involved sexual penetration and that the conduct occurred multiple times, generally on weekends when Mother was not home. Victim testified that the conduct eventually stopped when Mother began returning home earlier. Victim also testified that she experienced emotional distress and began having thoughts of self-harm.

On cross-examination, Victim acknowledged that she had given different estimates at various times regarding when the conduct began.

G. Family Testimony

Mother testified that she worked weekend shifts at a restaurant in the Riverwalk Mall and typically left home early on Saturdays. Defendant worked construction and sometimes picked her up from work later in the day.

Mother described the family's residence and explained that Victim's bedroom was located near the front of the home and served as a passageway to other rooms. Mother testified that she sometimes asked Defendant to supervise Victim while she was at work. Mother stated that she never observed inappropriate conduct between Defendant and Victim and never noticed injuries or bruising on Victim.

Father testified that Victim began living with Mother when she was approximately seven or eight years old and that he later noticed changes in Victim's behavior. Father testified that he learned of the abuse allegations when he received a call from Children's Hospital on March 25, 2021. Father subsequently obtained temporary custody of Victim and denied coaching Victim to fabricate the allegations.

H. Defense Testimony

Defendant testified that he moved to New Orleans from Honduras in approximately 2007 and began a relationship with Mother in 2009. Defendant denied engaging in any sexual conduct with Victim. Defendant testified that on weekends Victim was usually with Father or a babysitter and that he was not alone with her. Defendant's sisters also testified that they had never observed inappropriate conduct between Defendant and Victim.

IV. ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record.² After a review of the record, we have detected none.

V. ASSIGNMENTS OF ERROR

On appeal, Defendant raises the following assignments of error:

[1.] The State failed to present sufficient evidence to support the conviction.

[2.] The district court erred in allowing expert opinion testimony that improperly addressed the minor victim's credibility.

[3.] The State violated the defendant's right to a fair trial by making emotionally charged statements during closing arguments.

[4.] The State improperly shifted the burden of proof during closing, and the [district] court erred in overruling the defense objection.

[5.] The district court erred in denying the defendant's motion for new trial.

[6.] The district court erred in denying the defendant's motion for downward departure.

[7.] The [district] court erred in denying the defense's challenges for cause.

Assignment of Error No. 1: Sufficiency of the Evidence

Defendant argues that the evidence presented at trial was insufficient to support his conviction for first degree rape. Specifically, Defendant contends that the State's case relied primarily on Victim's testimony and that Victim's statements contained inconsistencies regarding when the conduct began and the circumstances under which it occurred.

The constitutional standard for testing the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Defendant was convicted of first degree rape, which is defined, in pertinent part, as “anal, oral, or vaginal sexual intercourse [that] is deemed to be without lawful consent of the victim because ․ the victim is under the age of thirteen years.” La. R.S. 14:42(A)(4).³

At trial, Victim testified that Defendant engaged in acts with her that involved sexual penetration and that this conduct occurred repeatedly when she was under the age of thirteen. Victim testified that the incidents generally occurred on weekends when Mother was not home and that the conduct began when she was approximately eight or nine years old.

Victim's testimony was consistent with her earlier disclosure at school, where she reported that Defendant had touched her inappropriately on multiple occasions beginning when she was approximately eight or nine years old. Victim later described similar conduct during the recorded forensic interview conducted at the Children's Advocacy Center. Victim also provided a medical history to the examining pediatrician describing repeated sexual acts involving Defendant.

The State also presented testimony from the school social worker who received Victim's initial disclosure, the detective who investigated the allegations, the forensic interviewer who conducted the recorded interview, and the child abuse pediatrician who evaluated Victim. The pediatrician testified that the absence of physical findings was not unexpected given the passage of time between the alleged conduct and Victim's disclosure, and that delayed disclosures and evolving descriptions are not uncommon in cases involving child sexual abuse.

Defendant emphasizes inconsistencies in Victim's statements regarding the precise age at which the conduct began and the length of time over which it occurred. However, those inconsistencies relate primarily to the timing of the conduct rather than whether the conduct occurred. Such discrepancies were fully explored during cross-examination and were matters for the jury to consider in assessing credibility.

Louisiana courts have repeatedly held that the testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction unless the testimony is internally contradictory or irreconcilable with the physical evidence. State v. De Gruy, 16-0891, p. 11 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 729-30 (citing State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369). With sexual offenses, “the testimony of the victim alone may be sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense.” State v. Magee, 22-0635, p. 9 (La. App. 4 Cir. 3/20/23), 382 So.3d 155, 163 (quoting State v. Barbain, 15-0404, p. 10 (La. App. 4 Cir. 11/4/15), 179 So.3d 770, 778).

Furthermore, it is not the role of this Court to assess the credibility of witnesses or reweigh the evidence presented at trial. Credibility determinations are within the sound discretion of the trier of fact. See State v. Brown, 16-0965, p. 28 (La. App. 4 Cir. 5/3/17), 219 So.3d 518, 536 (concluding that “[t]he credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact.”) (citation omitted).

Additionally, Victim's statements regarding the timing of the incidents were also supported by corroborating evidence concerning the household schedule. Victim stated that the incidents generally occurred on Saturdays when Mother was at work. Mother testified that she worked weekend shifts and typically left home early on Saturdays, while Defendant testified that he worked until noon on those days. This testimony was consistent with the circumstances described by Victim and provided corroborating evidence regarding the opportunity for the conduct she described. See State v. D.D., 18-0891, pp. 45-46 (La. App. 4 Cir. 12/27/19), 288 So.3d 808, 843 (noting that the victim's disclosures that she was raped on Mondays, when her mother and her uncle were at work, were corroborated “by her brother's testimony that [the] [v]ictim and [d]efendant frequently went into a separate room to clean while the other siblings were told to remain in the other room to do their homework” and by the victim's mother's and uncle's testimony that “they worked on Mondays and [d]efendant stayed at home, the day that [the] [v]ictim stated the rapes occurred.”).

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that Defendant repeatedly engaged in acts involving sexual penetration with Victim while she was under the age of thirteen. Accordingly, a rational trier of fact could have found that the State proved the essential elements of first degree rape beyond a reasonable doubt.

This assignment of error lacks merit.

Assignment of Error No. 2: Admission of Expert Testimony Regarding Victim Credibility

Defendant asserts that the district court erred in admitting expert testimony regarding Victim's credibility. Specifically, Defendant complains that Dr. Culotta improperly bolstered Victim's credibility by testifying that her evaluation resulted in a diagnosis of child sexual abuse. Defendant further argues that Dr. Culotta's testimony describing behavioral characteristics associated with child abuse, including delayed disclosure and variability in children's responses to trauma, effectively endorsed Victim's allegations. Defendant raises similar complaints regarding the testimony of forensic interviewer Julia Fisher.

Pursuant to La. C.Cr.P. art. 841, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The contemporaneous objection rule serves two purposes: (1) to put the trial court on notice of the alleged irregularity so that it may be corrected and (2) to prevent a defendant from gambling on a favorable verdict and later seeking appellate review of errors that could have been addressed during trial. State v. Thomas, 427 So.2d 428, 433 (La. 1982). Article 841(B) further provides that the objection requirement does not apply to rulings on written motions.

In the present case, Defendant filed a pretrial motion in limine seeking to exclude improper opinion testimony regarding witness credibility. Following a hearing, the district court denied the motion but expressly noted that any improper testimony would remain subject to contemporaneous objection during trial.

At trial, however, Defendant did not object to the challenged portions of Dr. Culotta's testimony and affirmatively stated that he had no objection to the admission of Dr. Culotta's written medical report. Similarly, portions of the testimony about which Defendant now complains were elicited either without objection or during cross-examination by defense counsel. The Louisiana Supreme Court has repeatedly held that a defendant may not claim reversible error based on evidence that the defense itself elicited. State v. Kimble, 375 So.2d 924, 928-29 (La. 1979); see also State v. Mejia, 23-161, p. 21 (La. App. 5 Cir. 11/29/23), 377 So.3d 860, 879. Accordingly, Defendant failed to preserve these complaints for appellate review.

Nevertheless, even if the issue had been properly preserved, Defendant would not be entitled to relief under the circumstances presented here.

Recently, in State v. Cloudie, 25-471 (La. 3/6/26), 429 So.3d 169, the Louisiana Supreme Court, on supervisory review of a pretrial Daubert and motion in limine ruling, addressed the admissibility of a proposed diagnosis of child sexual abuse. Under the particular facts of that case ⁴ , the Court found the testimony inadmissible where the nurse practitioner testified that the diagnosis rested on “just what the patient is telling you” and that she accepted the child's statements as true. The Court concluded that, in that posture, the testimony lacked a sufficiently reliable methodology and risked improperly bolstering the victim's credibility. Id., 25-471, pp. 4-8, 429 So.3d at 173-75. The Court's determination was based on the particular evidentiary record presented and the manner in which the diagnosis was formed in that case.

The case sub judice is materially distinguishable in both posture and substance. The Cloudie case arose in a pretrial evidentiary context based on a limited Daubert record, whereas the testimony in the case sub judice was presented during trial. More importantly, the nature of the expert testimony differs. Dr. Culotta, a board-certified child abuse pediatrician, testified regarding the medical evaluation process and the clinical framework used in assessing children referred for suspected abuse. She did not equate her diagnosis of abuse with a determination that Victim was truthful, nor did she testify that her conclusion was based on accepting Victim's statements as true. Rather, her testimony reflected a medical assessment based on the history obtained during the evaluation together with the clinical context in which such assessments are made.

Such testimony falls within the category of expert evidence recognized as permissible by the Louisiana Supreme Court in State v. Foret, 628 So.2d 1116 (La. 1993), and State v. Chauvin, 02-1188 (La. 5/20/03), 846 So.2d 697, which allow expert witnesses to provide general information about behavioral and medical characteristics associated with child abuse that may fall outside the common experience of jurors. Under these circumstances, the admission of the testimony does not warrant reversal.

Finally, even if the challenged testimony approached the limits of permissible expert opinion, any error would be harmless beyond a reasonable doubt in light of the evidence presented at trial, including Victim's statements, the recorded forensic interview, and corroborating evidence regarding the timing and circumstances of the alleged conduct.

For these reasons, Defendant's second assignment of error lacks merit.

Assignment of Error No. 3: Closing Argument

Defendant asserts that the State made emotionally charged remarks during closing argument that deprived him of a fair trial. Specifically, Defendant complains that the prosecutor (1) characterized Victim as “a scared little girl teetering on the brink of self-annihilation,” (2) portrayed Defendant as a predator disguised as a trusted adult in the home, and (3) invited the jury to consider what a young person might experience during an act of sexual intercourse. Defendant also complains that the State personally attacked defense counsel by shaming him for calling Victim a liar.

Louisiana Code of Criminal Procedure article 774 confines closing arguments “to [the] evidence admitted, to the lack of evidence, to conclusions of fact that the [S]tate or defendant may draw therefrom, and to the law applicable to the case.” Prosecutors are typically allowed a wide latitude in choosing their closing argument tactics, and the district court has broad discretion in controlling the scope of the parties’ closing arguments. State v. Casey, 99-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036. Although prosecutors typically have wide latitude in choosing their closing argument tactics, they should not appeal to prejudice or make personal attacks in doing so. State v. Haynes, 13-0323, p. 12 (La. App. 4 Cir. 5/7/14), 144 So.3d 1083, 1090.

Unless there is an objection made at the time of the alleged improper closing argument, a party waives appellate review of the issue. Such a claim cannot be raised for the first time on appeal, where no objection is made, contemporaneous or otherwise, to a statement made in a closing argument. State v. Hunter, 22-0742, p. 11 (La. App. 4 Cir. 7/6/23), 371 So.3d 108, 116. Even when counsel makes an objection during closing argument, Louisiana courts require additional steps to preserve the issue. “Ordinarily, the failure to request an admonition or a mistrial when entering an objection, or after it is sustained, fails to preserve the alleged error for appellate review.” State v. Bentley, 02-1564, p. 4 (La. App. 4 Cir. 3/12/03), 844 So.2d 149, 152 (citations omitted). See also State v. Sharp, 414 So.2d 752, 755 (La. 1982) (“When an objection is sustained, unless a defendant, during the trial, had requested and been denied either admonition to disregard the remark or a mistrial request, he cannot complain, on appeal, of the alleged error.”).

The transcript reflects that defense counsel did not object when the prosecutor made the above-described remarks during closing argument, including the emotional characterization of Victim, the description of Defendant as a predator, and the prosecutor's hypothetical discussion of what a young person might experience during sexual intercourse. Nor did defense counsel request an admonition or move for a mistrial at the time those statements were made. Accordingly, Defendant failed to preserve any challenge to those remarks for appellate review.

Furthermore, defense counsel did object during rebuttal when the prosecutor criticized defense counsel for “call[ing Victim] a liar.” The district court responded by admonishing the prosecutor to direct the argument to the jury. Defendant did not request any further admonition or move for a mistrial. Consequently, this claim likewise was not preserved for appellate review.

Assignment of Error No. 4: Shifting Burden of Proof

Defendant next asserts that the district court erred in overruling his objection during closing argument on the grounds of “burden-shifting” when the prosecutor noted that Defendant's sister, Damaris Amador, did not state that Defendant was out of the country for three years until she testified at trial.⁵

“A trial court has broad discretion in controlling the scope of closing arguments.” State v. Webb, 13-0146, p. 26 (La. App. 4 Cir. 1/30/14), 133 So.3d 258, 275 (citations omitted). “Even where a prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict.” State v. Jones, 15-0123, p. 44 (La. App. 4 Cir. 12/2/15), 182 So.3d 251, 280 (citing State v. Caliste, 12-0533, p. 17 (La. App. 4 Cir. 9/4/13), 125 So.3d 8, 18). “Credit should be accorded to the good sense and fair-mindedness of the jurors who have heard the evidence.” Id. at pp. 44-45, 182 So.3d at 280 (citing State v. Bailey, 12-1662, p. 8 (La. App. 4 Cir. 10/23/13), 126 So.3d 702, 707).

The prosecutor's comment does not appear to have been designed to shift the burden of proof to Defendant. Damaris Amador testified that Defendant moved to Honduras in 2017 and returned in 2020, although she conceded on cross-examination that she was “bad with dates” and could not be sure of the timeframe Defendant was in Honduras. In response to Defendant's objection to the State's line of questioning, the State replied, “I would argue it goes to the credibility of her statement.” The State argued that it was “trying to establish a timeline,” and the district court responded, “So, she's already testified to the timeline, and she indicated that she's bad with dates.”

A review of the context of the State's comment on Damaris Amador's testimony suggests that the State was not suggesting to the jury that Defendant was required to prove his innocence, but rather was questioning the witness's credibility and/or memory as to her testimony elicited by Defendant. While the comment involved Damaris Amador's testimony as to Defendant's “alibi,” the remark did not disparage Defendant's inability to provide an alibi, but invited the jury to reject the witness's testimony as to the dates Defendant was out of the country.

Moreover, the district court sustained two other defense objections to the State's argument on the grounds of burden-shifting and, after sustaining one of the objections, cautioned the State that Defendant had no burden of proof. Therefore, the jury heard the district court's caution during argument that Defendant had no burden of proof.

For these reasons, we find that this assignment of error lacks merit.

Assignment of Error No. 5: Motion for New Trial

By his fifth assignment of error, Defendant argues that the district court erred by denying his motion for a new trial. Defendant argues for a new trial on the basis that the verdict was contrary to the law and the evidence.

During the sentencing hearing, the district court heard lengthy oral arguments from Defendant and the State summarizing the evidence and contradictions presented at trial and the court's duty to consider whether the verdict was unjust. The court ruled as follows: “In regards to the motion for a new trial, the court did have an opportunity to sit throughout the trial, obviously. And the -- and there was a verdict rendered by a jury, a unanimous verdict that was rendered by a jury of [Defendant's] peers. And, so, at this time, the court is going to deny defense's motion for a new trial.”

This Court has held that, except for an error of law, an appellate court may not review the granting or denial of a new trial. State v. Robinson, 490 So.2d 501, 505 (La. App. 4th Cir. 1986) (citing La. C.Cr.P. art. 858). “In ruling on a motion for new trial brought under La.C.Cr.P. art. 851(B)(1), the trial court's duty is to put itself in the position of a juror. A trial court independently assesses credibility and weighs the evidence, and in doing so acts as what is often described as a thirteenth juror.” State v. Bourg, 19-00038, p. 5 (La. 12/11/19), 286 So.3d 1005, 1008-09 (internal citation and footnote omitted). Defendant asserts that the district court relied exclusively on the unanimous nature of the jury verdict and failed to independently evaluate the evidence presented at trial as a “thirteenth juror,” which he contends, “constitutes reversible error.”

It does not appear from the record that the district court failed to conduct an independent analysis of the evidence in this case simply because it did not expound on its reasons for denying the motion for a new trial. The district court acknowledged that it had observed the entirety of the trial. Further, the district court heard a protracted argument from Defendant listing the discrepancies and contradictions throughout Victim's allegations and trial testimony, noting that the case turned almost entirely on the credibility of both Victim and Defendant. Notwithstanding the district court's failure to provide its detailed appreciation of the evidence, the context of the district court's statement regarding the unanimity of the jury's verdict does not appear to represent the sole substantive reason for the court's denial of the motion for a new trial, but instead appears to demonstrate the district court's tacit agreement with the jury's verdict.

Defendant has failed to demonstrate that the district court applied the wrong legal standard or erred as a matter of law in denying his motion for a new trial. Accordingly, this assignment of error lacks merit.

Assignment of Error No. 6: Motion for Downward Departure

Defendant next asserts that the district court erred in denying his motion for a downward departure without holding a hearing pursuant to State v. Dorthey, 623 So.2d 1276 (La. 1993), arguing that the district court imposed the mandatory statutory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence under the mistaken belief that it lacked discretion to impose a sentence below the statutorily mandated life sentence. Defendant asserts no substantive argument in his brief regarding the excessiveness of the sentence imposed.⁶

In Dorthey, the Louisiana Supreme Court held that a trial court may grant a downward departure from a mandatory sentence in the context of the habitual offender laws if the mandatory sentence constitutes excessive punishment. Id. at 1280. Following Dorthey, the Supreme Court held that such discretion to depart from a mandatory minimum sentence is not limited to sentences derived from the imposition of the habitual offender statute. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam) (noting that “[o]ur observation in Dorthey, that ‘the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch,’ does not, nor did we intend it to, restrict the sentence review principles espoused in that decision solely to the mandatory minimum penalties provided by La. R.S. 14:529.1.”) (internal citations omitted).

In State v. Green, this Court vacated the defendant's life sentence and remanded the case to the district court because the record indicated that the “trial court erroneously believed that it could not, under any circumstances, impose any sentence other than life.” Id., 10-0008, p. 9 (La. App. 4 Cir. 11/17/10), 52 So.3d 253, 259 (citations and internal quotations omitted). The Court found that it “was error for the district court not to have at least considered an alternative sentence under Dorthey which makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence upon the defendant's request.” Id. (citation and internal quotations omitted). Likewise, in State v. Sims, 13-0177, pp. 12-13 (La. App. 4 Cir. 8/28/13), 123 So.3d 806, 814, this Court vacated the defendant's life sentence and remanded the matter to the district court because “the [district] court's comments indicate[d] a belief that it had no discretion in sentencing under the Habitual Offender Law and, thus, no choice but to impose a life sentence on the defendant as a triple offender.”

In the case sub judice, the record does not indicate that the district court denied Defendant's motion for downward departure because it misunderstood the scope of its discretion to depart downward from the mandatory statutory sentence. The sentencing transcript reflects that the district court stated, “I do see that you have filed a motion for a Dorthey departure in a sentence. And, so, do you wish to conduct a hearing this morning?” Defendant declined the district court's offer to conduct a hearing and requested a continuance so witnesses could be present. The district court then ruled, “So, the court has had an opportunity to review the mitigation packet that was presented by the defense. And, although it is quite compelling, the court is not inclined to grant the Dorthey hearing.”

A review of the record indicates that the district court was willing to entertain a Dorthey hearing on the day of sentencing, but Defendant was unprepared. After reviewing the “mitigation packet,” the district court found that there was nothing particularly unusual or unique about Defendant's circumstances that would justify a downward departure from the mandatory life sentence and denied the motion on the merits. Thus, this assignment of error is without merit.

Assignment of Error No. 7: Denial of Defendant's Challenges for Cause

Lastly, Defendant asserts that the district court erred in denying his cause challenges to potential jurors nos. 24 and 32, alleging that they could not be impartial due to each of their experiences relating to victims of sexual abuse.

“A district judge has broad discretion in ruling on a challenge for cause, and the determination will not be disturbed unless a review of the entire voir dire indicates an abuse of discretion.” State v. Lindsey, 06-255, p. 4 (La. 1/17/07), 948 So.2d 105, 108 (citations omitted). In criminal matters, defendants are afforded the right of full voir dire of prospective jurors and peremptory challenges of prospective jurors pursuant to La. Const. art. I, § 17(A). Further, La. C.Cr.P. art. 797, in pertinent part, allows both the State and defendant to challenge a juror for cause on the ground that the juror is not impartial or the juror will not accept the law as instructed by the court.

This Court has explained that “prejudice is presumed when a challenge for cause has been erroneously denied by a trial court, and the defendant exhausts all peremptory challenges statutorily afforded to the defendant.” State v. Harrison, 17-0054, p. 17 (La. App. 4 Cir. 3/21/18), 239 So.3d 406, 417 (citing State v. Juniors, 03-2425, p. 8 (La. 6/29/05), 915 So.2d 291, 305). In order to obtain a reversal, the defendant must show: (1) the erroneous denial of his challenge for cause; and (2) the exhaustion of his peremptory challenges. State v. Degregory, 18-0779, pp.12-13 (La. App. 4 Cir. 6/12/19), 274 So.3d 902, 910 (citation omitted). In the case sub judice, Defendant exhausted all of his peremptory challenges, and therefore, his objection to the rulings denying his challenges for cause is properly before the Court.

During jury selection, Defendant challenged prospective juror no. 24 for cause, noting that she had worked for twenty-five years as a social worker, including “working with children, and adults who had disclosed a sexual assault.” Defendant further noted that although the prospective juror stated she would try to be impartial, she admitted it “might be difficult” for her to do so. The State argued that the juror indicated that she worked with only adult victims of sexual abuse and that the juror “seemed very serious and earnest in her answers,” which demonstrated that she would take her duties as a juror seriously and follow the court's instructions. The district court then denied the cause challenge, stating, “[O]bviously, [the juror] said she would try to remain impartial. She does not have any current bias.”

Similarly, Defendant challenged potential juror no. 32 for cause on the grounds that she had personally experienced a sexual assault six years earlier and acknowledged that the experience “may be triggering” and cause her to feel emotional during the trial. The district court denied the cause challenge, stating that “every time [the juror] was asked about whether she could be fair and impartial, she indicated that she thought she could be fair and impartial, even when she talked about her sexual assault[.] She's always maintained that she thought she could be fair and impartial.”

Both this Court and the Supreme Court have repeatedly held that an equivocal response does not amount to a refusal to remain impartial or accept the law, and a trial court's denial of a cause challenge in such a situation does not constitute an abuse of discretion.

Clearly, La. C.Cr.P. art. 797(2) does not require that a prospective juror state with absolute certainty that he/she cannot be impartial in order to be removed for cause. However, in the absence of such a statement, the trial court's denial of a challenge for cause will not be reversed if, on review of the entire voir dire examination, the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence.

State v. Dotson, 16-0473, p. 17 (La. 10/18/17), 234 So.3d 34, 45 (citation omitted).

A response that a potential juror does not know whether they can remain impartial does not constitute facts from which bias, prejudice, or an inability to render judgment according to law might be reasonably implied. State v. Robinson, 08-0652, p. 13 (La. App. 4 Cir. 5/13/09), 11 So.3d 613, 621; State v. Frazier, 283 So.2d 261, 264 (La. 1973) (“The equivocal answer given by the juror [“I could try.”] did not amount to a refusal to accept the law as charged,” and the trial court's denial of the cause challenge did not require reversal.); see also Harrison, 17-0054, p. 21, 239 So.3d at 419; State v. Wells, 14-0612, p. 128 (La. App. 4 Cir. 9/14/16), 203 So.3d 233, 305.

Moreover, the trial court's ruling on a cause challenge is entitled to great deference “because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties’ attorneys.” Harrison, 17-0054, pp. 18-19, 239 So.3d at 418.

In the case sub judice, neither potential juror unequivocally stated that she could not be fair or impartial. Both prospective jurors indicated that they would try to be fair and impartial. We find that the district court did not abuse its discretion in denying Defendant's cause challenges to the prospective jurors. This claim lacks merit.

CONCLUSION

In sum, after reviewing the entire record in the light most favorable to the prosecution, we find no reversible error in the proceedings below. The jury heard the testimony, considered the competing accounts, and resolved issues of credibility within its exclusive province. The evidentiary rulings challenged on appeal do not undermine confidence in the verdict, and any arguable error was harmless beyond a reasonable doubt. Accordingly, Defendant has failed to demonstrate that the judgment should be disturbed on appeal. Accordingly, we affirm Defendant's conviction and sentence.

AFFIRMED

FOOTNOTES

1.   The record incorrectly lists the defendant's name as Arias Dagoberto. The trial transcript reflects that the correct name is Dagoberto Arias.

2.   An error patent is “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920(2).

3.   La. R.S. 14:41(B) provided at the time of the offenses that “[e]mission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime [of rape].”

4.   As recognized in the concurring opinions, the Court's ruling was limited to the particular facts presented in that case. See Cloudie, 25-471, 429 So.3d at 176 (Hughes, J., concurring)(“[T]he Opinion is clearly limited ‘under the facts of this case.’ ”). The concurrences further emphasize that expert testimony is permissible to assist the trier of fact but becomes problematic only when it supplants the jury's role in determining credibility. Id., 25-471, 429 So.3d at 175 (Weimer, C.J., concurring).

5.   Defendant raises two additional complaints in this assignment of error: (1) that the prosecutor improperly asked during argument whether Defendant's sister's testimony that she never left Victim with Defendant unsupervised was credible, and (2) that the prosecutor “improperly appealed to the minor victim's suffering by using language unfit for this Honorable Court.” However, Defendant did not lodge an objection to either of these comments.

6.   In his motion for downward departure filed in the district court, Defendant asserted that “a mandatory life without the possibility of parole sentence is excessive for a gentleman who has no prior convictions whatsoever.” We note that this Court has consistently refused to consider a defendant's first-time offender status as an exceptional circumstance warranting a downward departure when the crime committed is violent in nature. State v. Hunter, 18-0206, p. 16 (La. App. 4 Cir. 8/22/18), 252 So.3d 1053, 1065.

Judge Joy Cossich Lobrano