State Of Louisiana v. Randall K. Sturdivant

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STATE OF LOUISIANA


                               COURT OF APPEAL


                                 FIRST CIRCUIT


                                  2023 KA 1193


                           STATE OF LOUISIANA




                                               Judgment Rendered:




                                Appealed from the
                         22nd Judicial District Court
                     In and for the Parish of St. Tammany
                                State of Louisiana
                               Case No. 0110- F-2022


               The Honorable William H. Burris, Judge Presiding


J. Collin Sims                              Counsel for Appellee
District Attorney                           State of Louisiana
Matthew Caplan
Butch Wilson
Assistant District Attorneys
Covington, Louisiana


Jane L. Beebe                               Counsel for Defendant/Appellant
Addis, Louisiana                            Randall K. Sturdivant




           BEFORE: McCLENDON, WELCH, AND LANIER, JJ.



                                               o
 LANIER, J.


          The defendant, Randall K. Sturdivant, was charged by bill of information

with twelve counts of possession of pornography involving juveniles under the age

of thirteen years, violations of La. R.S. 14: 81. 1( A), ( E)( 1)( a), and ( E)( 5)( a).       He


pled not guilty and, after a trial by jury, he was found guilty as charged on each

count.     The trial court denied the defendant' s motion for post -verdict judgment of


acquittal and motion for new trial and sentenced him to forty years imprisonment

at hard labor without the benefit of probation, parole, or suspension of sentence, on


each count, to be served concurrently.              The trial court denied the defendant's


motion to reconsider sentence.        The defendant now appeals, assigning error to the

admission of expert testimony, the constitutionality of the sentences, and the trial

court's failure to observe a twenty -four-hour delay before imposing the sentences.

For the following reasons, we affirm the convictions, vacate the sentences, and

remand for resentencing.

                                  STATEMENT OF FACTS


         On November        15,   2021,   Agent Steve Everly,        a   probation   and   parole




supervisor of the Department of Public Safety and Corrections ( DPSC) assigned to

monitor the defendant upon his release from prison for a prior offense,'              conducted



a field visit at the defendant' s residence in Lacombe. In performing a routine check


of the defendant' s cell phone, Agent Everly discovered several videos of a sexual

nature,    involving suspected prepubescent females.              Agent Everly placed the

defendant under arrest, confiscated his cell phone, and turned it over to Special

Agent April Lucia of the Louisiana Bureau of Investigations ( LBI). Special Agent


Lucia confirmed that twelve of the video files on the defendant' s cell phone



I The defendant was being supervised upon release as a prior sex offender and, as a condition of
his release, was not allowed to possess any form of pornography. On the day at issue, Agent
Everly was supervising the defendant' s girlfriend as well, who was also a sex offender and living
with the defendant at the time.



                                                2
involved children under thirteen years of age.            She also conducted a pretrial


interview of the defendant in which he confessed to possessing child pornography.

                    ASSIGNMENT OF ERROR NUMBER ONE


        In assignment of error number one, the defendant argues the trial court erred


in allowing Special Agent Lucia to testify as an expert in a new area of expertise,

Internet Crimes Against Children ( ICAC) investigations. He argues the error was


 so egregious as to call into question the validity of the jury verdict."

        Preliminary questions concerning the competency or qualification of a

person to be a witness or the admissibility of evidence shall be determined by the

trial court.   La. Code Evid. art. 104( A). A witness who is qualified as an expert by


knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise if. (1) the expert' s scientific, technical, or other specialized


knowledge will help the trier of fact to understand the evidence or to determine a

fact in issue; ( 2) the testimony is based on sufficient facts or data; ( 3) the testimony


is the product of reliable principles and methods; and ( 4) the expert has reliably


applied the principles and methods to the facts of the case.           La. Code Evid. art.


702.    Notably, the Louisiana Supreme Court has placed limitations on this codal

provision in that, " expert testimony, while not limited to matters of science, art or


skill, cannot invade the field of common knowledge, experience and education of


men."    State v. Stucke,
419 So. 2d 939, 945
( La. 1982).


        Expert testimony,    as   generally   with   other evidence,    is subject to the


balancing test of La. Code Evid. art. 403.            See Comment ( f) to Article 702.


Relevant evidence is evidence which tends 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


that is not relevant is not admissible.       See La. Code Evid. art. 402.       Relevant



                                              3
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.

       Generally, the test of competency of an expert is the expert' s knowledge of

the subject about which he is called upon to express an opinion. A combination of


specialized training, work experience,     and practical application of the expert' s


knowledge can combine to demonstrate that the person is an expert; a person may

qualify as an expert based upon experience alone. Once an expert has been found

qualified, the trier of fact is entitled to assess credibility and accept or reject the

opinion of the expert in light of the expert's qualifications and the facts that form


the basis of his or her opinion.    The trial court is vested with wide discretion in


determining the competence of an expert witness, and its ruling on the qualification

of the witness will not be disturbed absent an abuse of discretion.     State v. Lutz,


2017- 0425 ( La. App. 1 Cir. 11/ 1/ 17),
235 So. 3d 1114, 1132
, writ denied, 2017-


2011 ( La. 8/ 31/ 18),
251 So. 3d 411
; see also Comment ( d) to Article 702 (" Broad


discretion should be accorded the trial judge in his determination as to whether


expert testimony should be held admissible and who should or should not be

permitted to testify as an expert.").

      In State v. Foret,
628 So. 2d 1116, 1123
( La. 1993), the Louisiana Supreme


Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals,


Inc.,
509 U.S.   579
, 592- 5939
113 S. Ct. 2786
, 2796- 2697,
125 L.Ed.2d 469
( 1993),

regarding proper standards for the admissibility of expert testimony.       Under the


adopted standard, the trial court is required to act in a gatekeeping function to

ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable. State v. Chauvin, 2002- 1188 ( La. 5/ 20/ 03),
846 So. 2d 697
,


700- 701.   To assist the trial courts in their preliminary assessment of whether the

reasoning or methodology underlying the testimony is scientifically valid and can

                                          M
properly be applied to the facts at issue, the Louisiana Supreme Court suggested

the following general observations set forth in Daubert are appropriate: ( 1)

whether the theory or technique can be and has been tested; ( 2) whether the theory

or technique has been subjected to peer review and publication; ( 3) the known or


potential rate of error; and ( 4) whether the methodology is generally accepted by

the relevant scientific community. See Chauvin,
846 So. 2d at 701
.

        Thus,     Louisiana has adopted Daubert' s requirement that in order for


technical or scientific expert testimony to be admissible under Article 702, the

scientific evidence must rise to a threshold level of reliability.         Chauvin,
846


So. 2d at 701
; Foret,
628 So. 2d at 1123
.        Daubert' s general " gatekeeping" applies


not only to testimony based upon scientific knowledge, but also to testimony based

on "   technical"   and "   other specialized knowledge."     Kumho Tire Co., Ltd. v.


Carmichael,
526 U.S. 137, 141
,
119 S. Ct. 1167, 1171
,
143 L.Ed.2d 238
( 1999);


Independent Fire Ins. Co. v. Sunbeam Corp., 99- 2181 ( La. 2/ 29/ 00),
755 So. 2d

226, 234
.     The trial court may consider one or more of the four Daubert factors,

but that list of factors neither necessarily nor exclusively applies to all experts or in

every case.       Kumho Tire,
526 U.S. at 141
,
119 S. Ct. at 1171
.        Rather, the law


grants a district court the same broad latitude when it decides how to determine


reliability as it enjoys in respect to its ultimate reliability determinations.
Id.,
526

U.S. at 142
,
119 S. Ct. at 1171
.


        Herein, the State moved to qualify Special Agent Lucia as an expert witness

in the field of " investigations into [ i] nternet crimes against children."     Defense


counsel traversed and then entered an objection, arguing that Special Agent Lucia

did not qualify as an expert based on her field of study, as she had never published

articles or previously qualified as an expert. Prior to the State' s motion to offer her

as   an expert,   Special Agent Lucia testified that she was assigned to the Cyber

Crime Unit in the attorney general' s office of the LBI. According to her testimony,

                                             5
her primary responsibility as a special agent was to initiate investigations of cyber

tips from the National Center for Missing and Exploited Children and to report the

possession, distribution, or trading of sexual abuse images. She testified her duties

further included conducting undercover operations to uncover and investigate

people in their jurisdiction who had a sexual interest in children.            Special Agent


Lucia noted that she had several years of experience as a licensed practical nurse,'

earned a bachelor's degree in sociology and criminal justice, and earned a master's

degree in applied criminology, focusing on sex offender behavior.

       Special Agent Lucia's career in law enforcement began with the. DPSC,

Division of Probation and Parole,          as   a    supervisor   of sex offenders,   preparing


presentence investigation reports.       From there, she joined the Louisiana Attorney's

General' s Office in 2016,      where she initially received thirty to forty hours of

intensive training in investigating crimes against children, operating forensic

computer programs, and interviewing sex offenders. She attends annual training

conferences on child exploitation and crimes against children and is certified to


conduct forensic interviews of sexually abused children.

       Special Agent Lucia's additional experience included teaching criminal

justice and sociology, and providing state- wide ICAC training, including an eight-

hour segment called ICAC          101,   for sheriffs offices, police departments,          and




district attorney's offices.   Outside of her own investigative cases, she confirmed


that she had not conducted research studies or published any articles, though she

reviewed research projects and publications as a part of her training. At the time of

the trial, Special Agent Lucia had been involved in more than 1500 investigations,


primarily involving child exploitation.

       After defense counsel' s traversal and a brief rebuttal by the State, the trial

court ruled that Special Agent Lucia, as an ICAC investigator, was qualified to


2 Special Agent Lucia confirmed that her nursing background includes training in anatomy.

                                                on
testify as an expert witness. Subsequently, Special Agent Lucia testified that of the

videos retrieved from the defendant's cell phone, she was able to identify twelve

that contained prepubescent child abuse material and classified two others as " age


difficult."    She identified slight breast development, pubic hair, and hips beginning

to develop as indicators for the " age difficult" classifications.

       In challenging the trial court's ruling, on appeal, the defendant notes that

Special Agent Lucia had never been qualified as an expert before, there was no


Daubert hearing, her area of expertise was new, and she lacked participation in

research studies or publications.      We note that the State, attaching a full resume of

education, employment history, and a curriculum vitae, filed pretrial notice of its

intent to call Special Agent Lucia as an expert in the field of ICAC investigations,

to present testimony on topics including methodology of identifying child sexual

assault     materials.   However, there is no indication in the record the defendant


requested a Daubert hearing. Further, the defendant did not assert the lack of a

Daubert hearing as grounds for his objection to Special Agent Lucia testifying as

an expert, nor did he raise questions regarding methodology or reliability, instead

only objecting on the grounds of her qualifications.

       The purpose of a Daubert hearing is to determine the reliability of an

expert' s methodology, not whether the expert has the proper qualifications to


testify.    State v. Lamonica, 2009- 1366 ( La. App. 1 Cir. 7/ 29/ 10),
44 So. 3d 895,

901
, writ denied, 2010- 2135 ( La. 2/ 18/ 11),
57 So. 3d 331
.   It is the responsibility of

the opposing party to explore the factual basis for the opinion and thus, determine

its reliability.     Leard v. Schenker, 2006- 1116 ( La. 6/ 16/ 06),
931 So. 2d 355, 357
.


When the objecting party fails to request an evidentiary " gatekeeping" hearing

under the rationale of Daubert, his objections to the admissibility of an expert

witness's testimony under Daubert are not preserved for appeal.          Harris v. State


ex   rel.    Dept.    of Transp.    and   Development,   2007- 1566 ( La.   App.   1   Cir.



                                               Al
 11/ 10/ 08),
997 So. 2d 849, 868
, writ denied, 2008- 2886 ( La. 2/ 6/ 09),
999 So.2d


785
.   Accordingly, the defendant's failure to move for a Daubert hearing or object

on the grounds of a lack thereof results in a waiver of those issues on appeal. See

State v. Lofton, 2008- 0747 ( La. App. 1 Cir. 9/ 12/ 08),
2008 WL 4190572
, * 3,


 unpublished),   writ denied, 2008- 2661 ( La. 5/ 22/ 09),
9 So. 3d 140
; see also La.


Code Evid. art. 103( A)( 1);    La. Code Crim. P. art. 841.


       Moreover, given Special Agent Lucia's education, training, and experience

in investigating crimes against children, we find the trial court did not abuse its

discretion in qualifying her as an expert witness and allowing her to testify on the

evidence at issue at trial.     Under Article 702, Special Agent Lucia' s specialized


knowledge and experience was sufficient to qualify her to testify as an expert in

the tendered field.    Furthermore, the defendant' s claim that the testimony at issue

involves a new area of expertise is at odds with governing jurisprudence and

statutory authority.


       Specifically, in accordance with La. R. S. 14: 81. 1( G), to determine the age of

an individual depicted in an image, the trier of fact may consider: ( 1)   the general



body growth,     bone   structure,   and bone development of the person; ( 2)       the


development of pubic or body hair on the person; ( 3)         the development of the


person' s sexual organs; ( 4)    the context in which the person is placed or the age


attributed to the person in any accompanying video, printed, or text material; ( 5)

available expert testimony and opinion as to the chronological age or degree of

physical or mental maturity or development of the person; and ( 6) such other

information, factors, and evidence available to the trier of fact that the court


determines is probative and reasonably reliable. ( Emphasis added).        Further, in


cases similar to the instant case, convictions have been upheld when the trial court

admitted testimony by qualified experts regarding the physical developmental

characteristic( s) that led to a conclusion regarding the age of a person depicted in
evidence.     See State v. Haley, 51, 256 ( La. App. 2 Cir. 5/ 24/ 17),
222 So. 3d 153
,

 165- 166, writ denied, 2017- 1230 ( La. 4/ 27/ 18),
241 So. 3d 305
; State v. Wright,


45, 980 ( La. App. 2 Cir. 1/ 26/ 11),
57 So. 3d 465, 471
, writ denied, 2011- 0421 ( La.


9/ 2/ 11),
68 So. 3d 520
.


       In Haley, the defendant therein was convicted of possession of pornography

involving juveniles and similarly asserted the testimony of the State's expert, Dr.

Margaret Springer, failed to meet the reliability standard set forth in Daubert. Dr.

Springer stated she analyzed the photographs at issue in that case, in part,           by

applying the " Tanner stages[,]"        which she explained are sexual maturity scales


widely recognized as a tool for determining normal growth patterns in children and

adolescents.     Dr.   Springer went into great depth describing the five levels of

Tanner stages in female development, with the first stage ending at the beginning

of breast development and visible signs of puberty, which is considered Tanner II.

She explained that growth rates vary based on nutrition, social considerations, and

ethnicity, but in the United States, female adolescents reach Tanner II between the

ages of nine to thirteen.    According to Dr. Springer, Tanner III covers basically

ages thirteen to fourteen, and Tanner IV is the last stage before maturity, usually

marked by the beginning of menstruation and the outer signs of puberty, as the

body becomes ready for childbearing, denoting Tanner V, the mature female stage.

Haley,
222 So. 3d at 165
- 166.

      The appellate court found the trial court did not commit reversible error in

concluding Dr. Springer' s expert testimony met the reliability standard for

admissibility. The court noted Dr. Springer was admitted as an expert; therefore, it


was permissible for her to give an opinion based on her own knowledge and

experience.    She described the Tanner stages as an " aid" devised by accumulated

statistics in child development.    The court further noted, in accordance with La.

R. S. 14: 81. 1( G), the jury was permitted to make determinations based on its own



                                              M
knowledge of the general development of sexual organs and body growth whether

a juvenile under the age of seventeen is depicted in the images in question in that

case.    Finally, the court noted Dr. Springer did not base her opinion solely on the

Tanner stages.      Haley,
222 So. 3d at 166
.

         In    Wright,   the   defendant   was       convicted   of twenty- three   counts   of




possession of child pornography. Therein, Dr. Ann Springer, an expert in pediatric


and child abuse medicine, testified that certain evidentiary photographs depicted

children under the age of seventeen engaged in various sexual situations with adult


males.        Dr. Springer stated the photographs at issue were chosen from a much


larger collection of photographs because they most conclusively showed juveniles

under the age of seventeen.       She based her conclusions concerning the age of the

victims on the physical developmental characteristics of each child,                  such   as




whether the victim had breast development, pubic hair, or the ability to maintain an

erection.        She explained to the jury exactly which physical developmental

characteristic( s) led her to the conclusion that each exhibit depicted a child under


the age of seventeen.      Considering, in part, Dr. Springer's testimony, the appellate

court found the evidence was sufficient to support the convictions in that case.


Wright,
57 So. 3d at 471
.


         Herein, according to Special Agent Lucia's testimony, in determining the age

of an individual, she considers the presence or absence of the following anatomical

features: ( 1) breast development; ( 2) pubic hair; and ( 3) general bone structure or


size difference among children and adults.           Special Agent Lucia testified that older


females especially tend to develop hips and widen around the breast area while a

child would be " straight ... [    a] 11 the way down."      She noted her assessment was


never or rarely based on only one factor and is instead based on the totality of

factors, including facial features.




                                                10
        In determining that twelve of the videos possessed by the defendant involved

subjects that were under the age of thirteen, Special Agent Lucia specifically noted

that she classified the subjects as prepubescent children based on the lack of hips,

no breast development, an areola area light in color, no pubic hair, and indicative

facial features. She observed that one of the children appeared to have just gotten


her permanent teeth and further observed the height difference between her

shoulders and the floor to assess her overall size. The child likewise did not have


any breast development. Special Agent Lucia further compared the size of an adult

hand to a child's buttock, noting that it was completely encompassed by the adult

hand.     She candidly testified that in two of the videos retrieved from the

defendant' s phone she could not make an opinion as to the age of the subject,


resulting in the " age difficult"   classifications.   She confirmed that in     such


questionable cases, charges are not pursued.




        As detailed above, we .find the testimony at issue was highly probative and

find no abuse of discretion regarding the admission of the testimony. Furthermore,

the jury was instructed as to their duty regarding the assessment of the evidence

and to determine the proper weight to be given to expert testimony. The trial court

specifically informed the jurors they had the right to accept or reject expert

testimony. Whether the subjects depicted in the videos were younger than thirteen

was a fact to be determined by the jury, and expert testimony is but one factor that

may be utilized in making that determination.    See La. R.S. 14: 81. 1( G). Here, the


members of the jury had the opportunity to view the images and make their own

determination regarding the evidence. In accordance with the foregoing, we find

assignment of error number one is without merit.


         ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE


        In assignment of error number two, the defendant argues the concurrent,


forty -year sentences imposed herein, the statutory maximum on each count, is

                                          11
excessive.    In assignment of error number three, the defendant argues the trial court


erred in failing to observe the statutorily required twenty -four-hour delay, prior to

the imposition of the sentences.


         Herein, the defendant filed motions for new trial and post -verdict judgment


of acquittal, and the trial court denied them both on the day of sentencing, just

prior to the imposition of the sentences.         However, La. Code Crim. P. art. 873


provides, in pertinent part, "[ i] f a motion for a new trial, or in arrest of judgment, is


filed,   sentence shall not be imposed until at least twenty- four hours after the

motion is overruled."      There is no indication in the record that the defendant


waived the delay in this case.        Thus,     the trial court erred by sentencing the

defendant immediately after ruling on the motion for new trial.

         In State v. Augustine,
555 So.2d 1331
, 1333- 34 ( La. 1990), the Louisiana


Supreme Court noted that a failure to observe the twenty -four-hour delay provided

in Article 873 may be considered harmless error where the defendant could not

show that he suffered prejudice from the violation, and sentencing is not raised on

appeal.     See also State v. Stafford, 2020- 0299 ( La. App. 1 Cir. 2122/ 21),
321


So. 3d 965
, 969. Where, however, a defendant does challenge his sentence, failure


to follow the required twenty -four-hour delay renders a sentence void. Augustine,
555 So.2d at 1333
( citing State v. Mistich,
186 La. 174
,
171 So. 841
( 1937) and


State v. George,
218 La. 18
,
48 So.2d 265
( 1950), cert. denied,
340 U.S. 949
,
71


S. Ct. 528
,
95 L.Ed. 684
( 1951)).


         In this case, through a claim of excessiveness, the defendant is challenging

his sentences, thus meeting the requirements of Augustine for remand.            State v.


Pursell, 2004- 1775 ( La. App. 1 Cir. 5/ 6! 05),
915 So.2d 871, 874
. Additionally, as

stated, the record does not contain an expressed or even an implicit waiver of the




                                           12
sentencing delay.' While defense counsel did not contest or object to moving on to

sentencing after the rulings on the motions, in State v. Kisack, 2016- 0797 ( La.

 10/ 18/ 17),
236 So. 3d 1201, 1205
( per curiam), cert. denied,
583 U.S. 1160
,
138


S. Ct. 1175
,
200 L.Ed.2d 322
( 2018), the Louisiana Supreme Court found the


defense counsel' s participation in the sentencing hearing was insufficient to

constitute a waiver of the delay required by Article 873. As further observed by

the court, "[ a] n implicit waiver ... runs afoul of the plain language of Art. 873 that


requires    that     the   waiver   be   expressly       made."
Id.
Therefore,        given     the


circumstances present, we must vacate the defendant' s sentences and remand the


case to the trial court for resentencing.            See Augustine,
555 So. 2d at 1334
- 1335;


State v. Denham, 2001- 0400 ( La. App. 1 Cir. 12/ 28/ 01),
804 So. 2d 929, 932
, writ

denied, 2002- 0393 ( La. 1/ 24/ 03),
836 So. 2d 37
.


        Because we find that Augustine requires us to vacate the defendant' s

sentences,      we     pretermit    consideration        of     the     merits       of   the     defendant' s


excessiveness claim raised in assignment of error number two.                                   See State v.


Thompson,          2010- 2254 ( La.      App.   1    Cir.     6/ 10/ 11),
2011    WL        3423798
, *    1


 unpublished).
                     However, we note that when resentencing the defendant, the trial

court should advise him of the time limitations provided by La. Code Crim. P. art.

930. 8( A) for applying for post -conviction relief.
Id.
The sentences are hereby

vacated,
            and the matter is remanded to the trial court for resentencing in
accordance with this opinion.



CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR
RESENTENCING.




3 While the minutes indicate the defendant waived the delay of sentencing, there is no indication
of this in the transcript and the State concedes on appeal that the trial court proceeded to
sentencing without a twenty -four-hour delay as mandated by Article 873.                   Where there is a
conflict between the transcript and the minutes, the transcript prevails.             State v. Lynch,
441
So. 2d 732, 734
( La. 1983); State v. Lee, 2023- 0079 ( La. App. 1 Cir. 6/ 2/ 23),
2023 WL 3861763
,
 1 n. l ( unpublished).



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