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STATE v. H.A., 2010-95 (La.App. 3 Cir. 10/6/10)
ROBERT J. GLADWIN, Judge.
Appellee Alpha Packaging Inc., sued the six appellants in this case for misappropriation of trade secrets, conversion, breach of contract, violation of the Arkansas Deceptive Trade Practices Act (ADTPA), fraud, and unjust enrichment. Following a lengthy trial, the jury returned a general verdict in favor of Alpha for $185,000 in compensatory damages and $7,500 in punitive damages. Appellants asked the circuit court for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, but the court denied their request. Appellants now seek reversal on the grounds that the jury's verdict was not supported by substantial evidence and that the circuit court erred in admitting one of Alpha's exhibits. We affirm.
In reviewing the circuit court's denial of a JNOV or a new trial, we must determine whether the jury's verdict was supported by substantial evidence. Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000); Gassman v. McAnulty, 2009 Ark. App. 471, ___ S.W.3d ___. Substantial evidence is that which goes beyond suspicion or conjecture and compels a conclusion one way or another. Gassman, supra. We view the evidence and all reasonable inferences therefrom in the light most favorable to the party on whose behalf judgment was rendered. Id. With these standards in mind, we set forth the following pertinent facts as developed at trial.
Alpha Packaging, Inc., is a Northwest Arkansas company that manufactures and sells packing and shipping products, such as corrugated boxes, bubble wrap, and tape. In January 2006, Alpha formed a division called Edge Marketing, which was devoted to point-of-purchase (POP) design and sales. Appellant Luke Bradshaw became the division president, and three other employees also joined the ranks: appellants Bill Davis, Andrew Powviriya, and Ed Wonnacott. These appellants were at-will employees and constituted the entire Edge creative and sales workforce. At least two of the employees — Bradshaw and Davis — had prior POP experience and had developed relationships with companies that would later become Edge clients.
After Alpha hired the four employees to work for Edge, it presented them with a "Confidentiality and Proprietary Information Agreement." The agreement recited that, during the course of the employees' work, Alpha might disclose certain "trade secrets" to them, including customer lists and pricing data. The employees, by signing the documents, agreed that, both during their employment and in the future, they would not use for themselves or others, or disclose to others, the company's trade secrets, confidential information, or other proprietary data. They also agreed that, upon termination of their employment, they would return all company documents, property, and customer lists, and that they would not retain copies, notes, or abstracts of documentary items.
Edge generated appreciable revenue in 2006 and was projected to do well in 2007. Bill Davis sent Alpha's president Michael Stec a document that, while unrealistic in some respects, forecast approximately three million dollars in sales for Edge in 2007. Edge in fact made a small profit in the first quarter of 2007. Unbeknownst to Stec, however, the four employees had been planning their exit from Edge since at least April and May 2007 in order to form their own POP marketing and design firm. Stec received the employees' letters of resignation on May 23, 2007, effective May 31, 2007. When Stec discovered that Bradshaw, who was responsible for considerable billing in previous months, had no invoices for ongoing jobs in May, he surmised that the employees had used Edge resources to develop a new venture, and he terminated their employment immediately. He also refused to pay them for any time after May 15.
Later events appeared to bear out Stec's suspicions. He discovered that the employees had enlisted an Edge client, Novus Products, LLC, as the financial backer for their new firm, which they called the A.W. Bravis Agency. Documents showed that, while on Edge company time, the employees obtained new computers and cell phones for their new business, courtesy of Novus, and that some of the employees received checks from Novus for two weeks' work on June 1, 2007. Additionally, one of the employees forwarded all Edge cell phones to the new Bravis phones prior to their resignations. Stec learned as well that the employees, upon leaving Edge, deleted all information from their computers, which included customer artwork, invoices, and price quotes. He further determined that one of Edge's cameras could not be accounted for and that the employees had left the Edge offices in disarray, strewn with several rolls of expensive posters and banners for which no customer was invoiced. At trial, the employees denied taking the camera and leaving the office cluttered, and they said that they left back-up disks for the computerized information. Stec and his wife testified, however, that the disks contained information no more recent than 2002 or 2006.
At some point, Alpha retrieved from the employees' hard drives a business plan that Luke Bradshaw had prepared for the employees' new venture in early May 2007. The plan included an eighteen-month history of Edge sales that included client names, projects, project dates, sales invoice amounts, and net profits on each project, plus a 2007 "Remainder Forecast" for Bravis, listing projects for many of those same Edge clients. There was evidence at trial that the employees presented this information to Novus in an attempt to obtain financing for their venture.
The employees in fact obtained financing from Novus, and by June 2007, were invoicing clients, which they continued to do successfully throughout the year. The company's projects included some that had begun at Edge in April or May 2007 and included clients that were identified as Edge customers on the business-plan list. Stec attempted to bring in new personnel to continue the business at Edge but was advised that it was not feasible to do, at least in part because of the loss of computer data.
On August 1, 2007, and by subsequent amended complaints, Alpha sued Bravis, Novus, and the four employees for misappropriation of trade secrets, conversion, breach of the confidentiality agreement, violation of the ADTPA, fraud, and unjust enrichment. The case went to trial, and, following deliberations, the jury returned a general verdict in favor of Alpha for $185,000 in compensatory damages and $7,500 in punitive damages. The circuit court entered judgment accordingly and later denied appellants' motion for a JNOV or, in the alternative, a new trial. This appeal followed.
The employees counterclaimed for unpaid wages, which the jury did not award. Also, during the trial, Bravis and Novus obtained directed verdicts on Alpha's claim for breach of the confidentiality agreement, and Novus obtained a directed verdict on the fraud count. Appellants' motion for a directed verdict was otherwise denied.
Appellants' primary argument on appeal is that Alpha's causes of action were not supported by substantial evidence. Because the jury's finding was rendered on a general verdict form, we have no way of knowing the particular theory on which the jury found appellants liable. Thus, if substantial evidence supports the verdict on any one theory, we will affirm. See generally Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164 (2003). In this case, we conclude that, although much of the proof in the case was heavily contested, Alpha produced substantial evidence to support a verdict for misappropriation of trade secrets.
Arkansas law permits a plaintiff to recover damages for misappropriation of a trade secret. Ark. Code Ann. §§ 4-75-601 through 607 (Repl. 2001). The Act defines a "trade secret" as information, including a formula, pattern, compilation, program, device, method, technique, or process that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Ark. Code Ann. § 4-75-601(4) (Repl. 2001). Additionally, our courts rely on six factors to determine whether information qualifies as a trade secret: 1) the extent to which the information is known outside the business; 2) the extent to which the information is known by employees and others involved in the business; 3) the extent of measures taken by the plaintiff to guard the secrecy of the information; 4) the value of the information to the plaintiff and its competitors; 5) the amount of effort or money expended by the plaintiff in developing the information; 6) the ease or difficulty with which the information could properly be acquired by others. Freeman v. Brown Hiller, Inc., 102 Ark. App. 76, 281 S.W.3d 749 (2008).
Appellants argue that the information that Alpha seeks to protect in this case does not qualify as a trade secret. We disagree. Customer lists and account information are secrets worthy of protection under the proper circumstances. Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Servs., 336 Ark. 143, 987 S.W.2d 642 (1999); Allen v. Johar, Inc., 308 Ark. 45, 823 S.W.2d 824 (1992); Freeman, supra. In the instant case, the jury could reasonably have concluded that Edge's customer, pricing, ongoing project, and profit information, which appeared in the Bravis business plan, met the necessary criteria. The information possessed independent economic value from not being known to or readily ascertainable by a competitor, as shown by the testimony of both Michael Stec and Don Moore of Novus, who financed the employees' new business. Stec testified that a competitor could "kill our entire company" with that type of information. Don Moore of Novus recognized that "you don't broadcast your sales history such as your invoice totals and your profits for various projects." Furthermore, the economic advantage to Bravis in acquiring Edge's pricing and profit data is apparent. The new company was able to get up to speed in a matter of weeks on the shoulders of that knowledge, virtually closing down a competitor in the process.
Alpha also made reasonable efforts to maintain the secrecy of its customer and account information. Stec testified that his company used confidentiality agreements, computer passwords, document shredding, and other methods that restricted the flow of customer and pricing information both within and outside the company. See Tyson Foods, Inc. v. ConAgra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002). Additionally, the confidentiality agreements signed by the employees expressly identified customer lists, pricing data, and financial data as trade secrets. Our supreme court has considered this a significant factor in determining whether information constitutes a trade secret. See Saforo Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999); Cardinal Freight Carriers, Inc., supra.
Appellants argue that the confidentiality agreements were not supported by consideration because the employees signed them after they were hired by Alpha. Yet, the agreements themselves state that they are made "in consideration of being employed by Alpha." Additionally, continued employment may serve as consideration for a new or modified contract. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991).
Appellants contend that Alpha's customer list should not be deemed a trade secret because Alpha developed the list within a short period of time rather than over a number of years and the list did not contain minute details about customer preferences like the customer list that was ruled a trade secret in Johar, supra. While these factors may be considered on the question of whether a customer list is a trade secret, they are not dispositive in this case. The information appropriated by appellants was not long in the development, but it was rich in substance, containing not only customer identities but customer data about ongoing projects, prices, and profits. In this respect, we believe the information appropriated by appellants contained as much significant detail as the customer list in Johar.
Appellants also note that Luke Bradshaw and Bill Davis had long-standing relationships with some Edge customers that pre-dated either the customers' or the employees' relationships with Edge. Again, this is a factor that may be considered in deciding whether a customer list constitutes a trade secret, see Hi-Line Elec. Co. v. Moore, 775 F.2d 996 (8th Cir. 1985), but it does not carry the day in the present case. The employees here not only continued their relationships with Edge's customers but made use of and disclosed to others the customers' project and pricing information, along with Alpha's profit information. Appellants claim further that Alpha could not have considered its customer and pricing information a trade secret because it sent the four employees monthly statements (during their tenure with Edge) containing customer names and invoice amounts. There is no indication, however, that these documents contained more information than was necessary for the employees to verify their commissions.
The question of what constitutes a trade secret is fact-intensive. See Vigoro Indus., Inc. v. Crisp, 82 F.3d 785 (8th Cir. 1996). In light of the particular facts in this case, the jury had before it substantial evidence on which to find appellants liable for theft of trade secrets. We therefore affirm on this point.
Appellants' remaining arguments are directed to Alpha's trial exhibit that contained information about Alpha's damages. The exhibit listed various dollar amounts as damages for: 1)"unjust enrichment invoices," which were invoices sent by Bravis to clients that Bravis allegedly took from Edge; 2) invoices that Edge customers did not pay because their paperwork had been deleted from Edge's computers; 3) Edge's development costs for one client; 4) the cost of the posters and banners left on the floor, and the missing camera; 5) wages paid to the four employees in May when Alpha contends they were already working for their new company; 6) expenses charged on Edge credit cards when the employees were allegedly already working for their new venture; 7) Bravis's forecasted profits in 2007. In closing arguments, Alpha's counsel explained to the jurors that they were not expected to add up all of the figures on the exhibit (which would have totaled over $600,000) but that the exhibit simply contained items they needed to know to reach a verdict. Appellants argue that the circuit court abused its discretion in admitting the exhibit because it was confusing and contained damage figures that were speculative.
We note at the outset that, because the jurors rendered a general verdict, we cannot say how they arrived at their damage award or what portions of the exhibit they may have accepted, rejected, or used in combination. Consequently, we will not question or theorize about the jury's findings. See, e.g., Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002). In any event, the dollar amounts listed on the exhibit were taken from trial testimony and sought to give the jury some basis for an award of damages in this complex case. We held in Agracat, Inc. v. AFS-NWA, 2010 Ark. App. 458, ___ S.W.3d ___, that Arkansas has never insisted on exactness in determining damages, and if it is reasonably certain that some loss occurred, it is enough that damages can be stated only approximately. We further recognized in Agracat that juries may act on probable and inferential proof of damages and that a plaintiff may place before a jury all the facts and circumstances tending to show damages or their probable amount, after which the jury may make its most intelligible and probable estimate. Given the substantial evidence that Alpha sustained some loss in this case, we conclude that the information on Alpha's exhibit was properly presented to the jury and that the circuit court did not abuse its discretion in admitting it.
Affirmed.
GLOVER and ABRAMSON, JJ., agree.
State v. Washington, 386 So.2d 1368 (La. 1980) (citations omitted).
In Washington, the supreme court noted that the joinder of different charges involves evidence of other crimes. Addressing other crimes evidence, the court explained:
In Louisiana, "Evidence of crimes other than the one for which the defendant is on trial is admissible as `other crimes' evidence when the two incidents exhibit such peculiar modes of operation to distinguish them as the work of one person" and when they are relevant to a material issue in the case. La.R.S. 15:446 [repealed and replaced with La. Code Evid. art. 404]; State v. Carter, [ 352 So.2d 607 (La. 1977) J; State v. Prieur, 277 So.2d 126 (La. 1973).
Id. at 1372.
After considering the facts present therein and the criteria it set forth regarding the joinder of offenses and other crimes evidence, the supreme court determined that the trial court erred in denying the defendant's motion to sever, finding that evidence of other crimes was inadmissible therein because the crimes with which the defendant was charged were not similar enough to allow them to be tried together. The court outlined the factors that warranted severance of the four charges joined therein: 1) the crimes were similar but not so similar that they constituted "signature crimes"; 2) the crimes all involved sexual assault on little girls, but the methods of assault on each child were not similar; 3) the defendant did not use the same enticement in each instance; and 4) each assault occurred in a different place and at different times. The supreme court also noted that the jury instructions were not written in a manner that guarded against the jury cumulating the evidence against the defendant and that multiple charges involving sexual assault against young children may cause a jury to harbor hostility against the defendant.
We have reviewed the considerations and factors set forth in Washington in light of the fact that a trial court's discretion should not be disturbed unless that discretion was shown to be abused and conclude that the trial court in the present case did not err in refusing the defendant's motion to sever. The crimes with which the defendant was charged were similar in a number of respects: 1) both victims were girls who were about nine years of age when the sexual abuse occurred and/or started; 2) both victims had a familial relationship with the defendant — he was married to the mother of both victims and the victims lived with him in his home when the offenses occurred; and 3) the defendant was an authority figure in both instances, father and stepfather.
Additionally, the record indicates that the joinder of the cases did not likely confuse the jury because there were only two counts and that although the facts are similar, they are not identical and are easily distinguishable. Moreover, the evidence was not complex and was presented in an orderly fashion, and the jury was provided with separate verdict sheets which did not identify the victims for each count. Furthermore, the jury convicted the defendant of attempted aggravated incest of M.B., not aggravated incest. In our view, the jury's conviction of the defendant of a lesser charge shows that it carefully distinguished the victims and the evidence and "did not allow the similarity of the crimes to prejudice their consideration of the facts in light of the applicable law." State v. J.T.S., 03-1059, p. 12 (La.App. 3 Cir. 2/4/04), 865 So.2d 1032, 1040.
For these reasons, we find that the trial court did not err in refusing to sever the defendant's charges and that this assignment of error is without merit.
Jury Instructions
In this assignment of error, the defendant asserts that the trial court's failure to instruct the jury of the lesser and included offenses of aggravated incest entitled him to a new trial; therefore, the denial of his motion for new trial was error.
Prior to closing arguments, the trial court stated for the record that the parties had been given copies of the proposed jury charges and asked the parties if they were satisfied with the charges. A short recess was taken, and at that time, defense counsel requested that a jury charge unrelated to the issue herein be changed. The State objected, and the trial court denied the request. Defense counsel also withdrew an objection made in chambers the previous day. However, defense counsel neither requested any special jury instructions nor objected to the trial court's alleged failure to include the lesser and included offenses of aggravated incest. Accordingly, the right to appeal this issue was not preserved. La. Code Crim.P. arts. 801(C) and 841(A). See also State v. Draughn, 05-1825 (La.1/17/07) 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
This assignment of error is without merit.
Other Crimes Evidence
The defendant argues that the trial court erred in allowing the admission of alleged other crimes evidence to be used against him and in refusing to grant a mistrial because the State did not produce the complained of evidence prior to trial. He identifies two separate incidents at trial where such evidence was admitted over his objection.
First, the defendant objected to M.B.'s testimony that the defendant tried on occasion to insert his penis in her, asserting that M.B. was accusing him of attempted rape which was beyond the scope of the bill of information. He also asserted that her testimony constituted other crimes evidence which was highly prejudicial to him, and he moved for a mistrial. The State maintained that the testimony went to the heart of the charge of aggravated incest and was part of the res gestae. The trial court agreed that the testimony was "part of the whole process" and denied the defendant's objection and motion for mistrial.
The defendant argues that M.B.'s testimony suggests that he attempted to have sexual intercourse with her against her will and that her testimony went beyond the scope of the crime of aggravated incest, claiming that her testimony was evidence of an "other crime."
Other crimes evidence is addressed by La. Code Evid. art. 404(B)(1) (emphasis added), which reads:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
The defendant claims that M.B.'s testimony caught him off guard because the State did not give notice that it intended to offer evidence of other crimes, i.e., attempted rape, at trial. He contends that the State used the other crimes evidence to ensure that the jury would have a negative disposition toward him and would be more inclined to believe that he committed aggravated incest upon M.B.
The State asserts that the testimony the defendant complains of was admissible because it described an act that was a component of his actions against M.B. It cites State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, writ denied, 09-374 (La.11/6/09), 21 So.3d 301, as support for its argument.
In Ridgley, the fifth circuit defined "res gestae" and discussed its application:
Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741, cert. denied, Taylor v. Louisiana, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). A close connexity between the charged and uncharged conduct is required in order to insure that "the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." State v. Colomb, 98-2813, p. 3 (La. 10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La. 1981)).
Id. at 696. The State argues that M.B. was only giving a complete account of events surrounding the molestation she endured and that her description of any other crime was only incidental to her telling her story to the jury; therefore, it constituted part of the res gestae of the crime of aggravated molestation.
We agree with the State. M.B.'s testimony regarding the defendant's attempts to penetrate her are part of her story of the sexual abuse the defendant perpetrated on her. Those attempts to penetrate her were closely connected to the behavior forming the basis of the charged conduct. Furthermore, in our view, the jury's verdict shows that it did not take M.B.'s testimony out of context, as it convicted the defendant of attempted aggravated molestation, not the more serious charge of aggravated molestation.
Notice is not required for res gestae evidence. La. Code Crim.P. art. 720. Therefore, the trial court did not err in denying the defendant's motion for mistrial and allowing M.B. to testify that the defendant attempted to penetrate her when he was molesting her.
The defendant also complains that the State referred to evidence of other crimes in its opening statement when the prosecutor reviewed the elements of aggravated incest, including the prohibited acts enumerated in La.R.S. 14:78.1(B). After reading the prohibited acts of La.R.S. 14:78.1(B), the prosecutor stated in part:
So the state intends to prove that [H.A.] engaged in the conduct that is prohibited in this statute that I just read to you for your information. We're not alleging that he had sexual intercourse, we're not alleging that. We are however, suggesting to you that the evidence will show that he molested his stepchild, M.B., on many occasions between the period of 1998 and 2005, that he fondled and touched her with the intent to satisfy his sexual desires, or that of the child. If you are convinced beyond a reasonable doubt that he did that during this period, and you have to keep in mind that we only brought this time period, January 1, 1998 through December 31, 2005, we only allege that he committed one crime, even though we could have if we had chosen to, we could have charged him with having committed a whole bunch of different acts, but that's not what we did.
At that point, defense counsel requested a sidebar and complained that the prosecutor's statements concerned evidence of other crimes with which the defendant had not been charged and that the prosecutor was inflaming the jury by telling the jurors that the State could have brought many other charges against the defendant based on his behavior during that time period. Defense counsel maintained that the State should not be referring to additional charges that it was not going to try to prove, even if an offense occurred repeatedly.
The State explained that it wanted to clearly establish for the jury that although the defendant committed aggravated incest on M.B. many times, it only had to prove beyond a reasonable doubt that he committed that crime on one occasion. The defense maintained that the State was bringing evidence of other crimes with which he had not been charged, even though it was a lengthy period of time within which the offense occurred. The trial court overruled the defendant's objection, and he moved for a mistrial. The trial court denied the motion for mistrial.
The defendant contends that the State's distinction between being able to charge him with many "different acts" is totally different from identifying many "same or similar acts" that he allegedly performed. He maintains that the words "different acts" suggest other crimes and other bad acts as contemplated by
La. Code Evid. art. 404(B)(1) and that evidence of same is inadmissible. He then concludes that when M.B. testified that he tried to have sexual intercourse with her, but she would not let him, it implied that he tried to rape her and was conveniently the same "different acts" to which the State referred in its opening statement.
The State argues that it was attempting to inform the jury that during a five-year span, the defendant committed numerous acts constituting aggravated incest on M.B. It relies on State v. Morgan, 296 So.2d 286 (La. 1974), a case in which the defendant was being prosecuted for the aggravated rape of his stepdaughter, as support of its position.
In Morgan, the state offered testimony indicating that the defendant had raped his stepdaughter eleven months prior to the offense for which he was being tried in an effort to establish the element of sexual penetration. The supreme court observed that Louisiana courts, as well as courts of other jurisdictions, permit evidence of prior sex offenses committed against the same person, explaining: "Such evidence has been admitted for various reasons, such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant and the probability of his having committed the offense charged, or to rebut the defense of alibi." Id. at 288. The court concluded that the evidence of the prior rape was properly admitted in the prosecution of the defendant for aggravated rape.
Additionally, in Morgan, the state served the defendant with written notice of other crimes evidence it intended to introduce at trial, as required by State v. Prieur, 277 So.2d 126 (La. 1973). The State did not do that here. However, prior notice is not required for res gestae evidence. La. Code Crim.P. art. 720. Moreover, a defendant can only validly claim that a violation of the Prieur notice requirement mandates reversal if he shows he was prejudiced by the other crimes evidence. Id.
Sexual intercourse is a prohibited act in the description of the crime of aggravated incest; therefore, the defendant has not shown that M.B.'s testimony that he tried to penetrate her prejudiced him by unfair surprise. Accordingly, this assignment of error has no merit.
Failure to Produce Exculpatory and Impeachment Evidence Prior to Trial
In this assignment of error, the defendant contends that the trial court erred when it denied his motion for a mistrial based on the State's failure to produce exculpatory and impeachment evidence to him prior to trial. He claims that the State withheld crucial material in the form of a written statement M.B. made that was exculpatory evidence and impeachment material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He explains that statements J.B. and M.B. made were inconsistent; thus, he argues that he was deprived of the opportunity to impeach both of these witnesses.
In general, pursuant to La. Code Crim.P. art, 723, the State is not required to provide a copy of the victim's written statement to a defendant. However, on motion of the defendant, the trial court must order the State to produce any evidence which contains evidence that is material and relevant to the issue of guilt or punishment that is favorable to him. La. Code Crim.P. art. 718.
Recently, in State v. Davis, 09-1061, pp. 20-21 (La.App. 3 Cir. 4/7/10), 36 So.3d 351, 365 (quoting State v. Tate, 38,576, pp. 15-16 (La.App. 2 Cir. 8/18/04), 880 So.2d 255, 263-64, writ denied, 04-2554 (La.1/14/05), 889 So.2d 268 (citations omitted)), this court reviewed the necessity for producing exculpatory evidence during discovery:
The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. Discovery procedures enable a defendant to properly assess the strength of the state's case against him in order to prepare his defense. If a defendant is lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such a prejudice may constitute reversible error.
Under the United States Supreme Court decision in Brady, the state, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection.
The test for determining materiality was firmly established in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and has been applied by the Louisiana Supreme Court. The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
J.B. testified on cross-examination that on the day he saw the defendant hugging M.B. from behind, he did not tell her that he had witnessed the incident. Prior to trial, someone from the district attorney's office contacted him about M.B.'s allegations. According to J.B., he subsequently called M.B. and told her, for the first time, what he had witnessed years ago. J.B. also testified that he had never told anyone about what he had seen prior to his telephone conversation with M.B. Thereafter, he repeatedly denied that he discussed his testimony with M.B. before he testified.
At the conclusion of defense counsel's cross-examination, the trial court met with counsel in chambers, informed defense counsel that J.B.'s testimony that he never talked to M.B. about what he had seen before the prosecution contacted him conflicted with information contained in M.B.'s statement, then provided defense counsel with a copy of the conflicting information. The trial court observed that the conflicting information "may or may not be exculpatory[,] but it indicates that there was a discrepancy" between M.B. and J.B.'s testimony about his making noises before entering the room and his not speaking with anybody about having seen the defendant rub against M.B. while in the kitchen.
The trial court then stated that it would allow defense counsel to cross-examine J.B. about M.B.'s statement to allow the jury to decide who was telling the truth. Defense counsel moved for a mistrial, arguing that M.B.'s statement was material and should have been disclosed pursuant to Brady. The trial court responded that until J.B. was questioned about it, there was no reason to think that her statement was exculpatory and that it did not believe the State was aware before trial that J.B. was going to deny having spoken with M.B. regarding the matter until after the State contacted him regarding her allegations. The trial court further observed that while J.B.'s testimony was inconsistent with M.B.'s statement, it did not find the inconsistency to be grounds for a mistrial, noting that the defendant could cross-examine J.B. about the inconsistency.
M.B. reported in her statement that she asked J.B. how he knew what the defendant was doing to her. According to M.B., J.B. told her that he would see the defendant touching her and that he would make a noise before walking in a room to avoid seeing the defendant touch her. J.B. indicated to her that he did not know what he would do if he saw the defendant touch her again.
Defense counsel resumed his cross-examination of J.B. and asked J.B. if there was ever a time when he told M.B. that he had seen what happened. J.B. responded, "Yes, I probably did . . . if I was angry at the time I probably did, I can't recall if I did or not." J.B. explained that when he is mad, he will "say stuff." J.B., nonetheless, testified that he did not recall saying anything to M.B.
On redirect examination, the State reviewed the inconsistent portion of M.B.'s statement with J.B. pointing out that: 1) when M.B. was asked if anyone in the house saw the defendant touching her in any way, she stated that J.B. had witnessed an incident and 2) when asked how she knew that J.B. had seen the defendant touch her, M.B. responded that J.B. told her one day when they were talking because J.B. was mad at the defendant for some reason. The State also related M.B.'s claim that J.B. told her that if he ever saw the defendant put his hands on her again, he would do something to him. The State then asked J.B. if he had said that to M.B., and he indicated that he probably did.
The defendant complains that this method of curing the State's failure to disclose was ineffective. He maintains that he did not have adequate time to prepare for examining J.B. or M.B. on this issue given the "unfair surprise" of the new exculpatory and impeachment material.
To the contrary, the State maintains that J.B.'s testimony, read in whole, indicates that he did not tell M.B. at the time that he witnessed the incident but told her years later, after the allegations surfaced. As such, the State contends that no exculpatory and impeachment evidence was withheld from the defendant.
We have closely reviewed the record and find that it does not support the defendant's claim that the State withheld exculpatory or impeachment evidence. M.B.'s statement, standing alone, does not contain material and relevant information regarding the issue of guilt or punishment which would have required the State to produce the statement prior to trial. J.B. was unaware of M.B.'s statement to the police in which she indicated that he saw what happened to her, and it was not until he testified at trial that the trial court observed a possible inconsistency. Additionally, there is no evidence showing that the State had any knowledge prior to trial that J.B.'s testimony would conflict with M.B.'s statement. Although J.B. was questioned by investigators in 2008, after M.B.'s written statement taken on August 22, 2007, he never gave a written statement that would have possibly revealed an inconsistency similar to what occurred at trial. Moreover, J.B. maintained that he first learned at trial that M.B. knew he had seen the incident.
Furthermore, even if the State had withheld impeachment evidence, the defendant had the burden of showing that the evidence was material to his defense and that there was a reasonable probability that the outcome of the case would have been different had the State produced M.B.'s statement prior to trial. The parties were given the opportunity at trial to explore the relevance and impact of the inconsistent statements, and the State provided a plausible explanation for the inconsistency through J.B.'s testimony.
After carefully reviewing this assignment of error, we find the defendant has not shown or even argued how the State's production of M.B.'s statement prior to trial could have affected the outcome of his trial. Without such evidence, there is no merit to this assignment of error. See Davis, 36 So.3d 351. Excessive Sentence
In his final assignment of error, the defendant argues that two concurrent five-year sentences at hard labor is constitutionally excessive. He asserts that it is nothing more than a needless imposition of pain and suffering as it makes no measurable contribution to acceptable goals of punishment and that the trial court failed to adequately particularize the sentences to him and the facts of this case; therefore, he contends that his sentences are excessive.
The defendant filed a motion to reconsider sentence in which he complained that his sentences were excessively harsh, that the evidence against him consisted of verbal allegations without independent evidence, that he had other mitigating factors he wanted to introduce, and that he requested that the trial court reconsider his sentences. The motion was denied without a hearing.
This court has set forth the following standard to be used in reviewing excessive sentence claims:
La.Const., art. I, §§ 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).
To decide whether a sentence shocks our sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied 03-562 (La.5/30/03), 845 So.2d 1061.
The defendant argues that his sentences were excessively harsh for a fifty-year-old, first-time felony offender, noting that he has been a member of his church for more than nineteen years and has served as a deacon, usher, and singer and that he is a hardworking, trustworthy individual who is highly spoken of in the community.
Before imposing sentence, the trial court indicated that it thoroughly reviewed the defendant's Pre-Sentence Investigation Report (PSI) and considered the elements of the sentencing guidelines provided in La. Code Crim.P. art. 894. When sentencing the defendant, the trial court did not identify the specific factors of La. Code Crim.P. art. 894.1 it considered in formulating the sentence. As noted in State v. Smith, 433 So.2d 688, 698 (La. 1983) (citations omitted), "[w]hile the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant." This does not mean, however, that the trial judge's failure to comply with Article 894.1 renders a sentence invalid, as the goal of this article is articulation of the factual basis for a sentence, "not rigid or mechanical compliance with its provisions." State v. Lanclos, 419 So.2d 475, 478 (La. 1982). Accordingly, if "the record clearly shows an adequate factual basis for the sentence imposed[,] . . . remand is unnecessary, even where there has not been full compliance with Article 894.1." Id.
Although the trial court did not fully comply with La. Code Crim.P. art. 894.1 by stating the specific factors it considered in sentencing the defendant, the record clearly shows an adequate factual basis for the minimum sentences imposed herein. Initially, we observe that the amended bill of information indicates that the defendant was fifty years of age at the time of sentencing. The trial court indicated that it had considered the information in the defendant's PSI, which typically provides pertinent facts regarding the defendant's personal information, including his past criminal history and social history. Also, the trial court considered the defendant's motion for new trial and motion for post verdict judgment of acquittal immediately prior to sentencing the defendant. During those arguments, defense counsel enumerated the mitigating factors urged in his motion to reconsider his sentences, that he was a first felony offender with a long-standing history of involvement in his church. Lastly, at trial, the defendant submitted into evidence letters written on his behalf which indicated that he had been a faithful and hardworking employee with good character for twenty years and a dedicated member of his church for several years.
The facts adduced at trial reflect that the defendant committed the offenses on his own daughter and stepdaughter who were both nine years of age at the time the abuse occurred and/or started. He violated a position of trust as the father and care giver of the girls at a time when they were both at a tender and vulnerable age and regularly abused M.B. for a period of five years. R.A. described how the emotional harm she suffered as a result of her father's abuse affected her relationship with her husband.
Prior criminal activity is a factor a trial court may consider when it imposes sentence; evidence of prior criminal activity is not limited to convictions. State v. J.P.F., 09-904 (La.App. 3 Cir. 3/3/10), 32 So.3d 1016.
The record shows that the sentences imposed were lenient in a number of respects: 1) the defendant's five-year sentence for molestation of a juvenile was one-third the maximum possible sentence he could have received, and he was spared a substantial fine; 2) the defendant's sentence for attempted incest was half of the maximum possible sentence, and again, he was spared a fine; and 3) the trial court ordered the defendant's sentences to run concurrently, although the convictions were unrelated and could have been ordered to run consecutively. See La. Code Crim.P. art. 883.
The penalty for molestation of a juvenile at the time the offense was committed was one to fifteen years, with or without hard labor, or a fine of not more than $10,000, or both. La.R.S. 14:81.2(C).
The penalty for attempted aggravated incest pursuant to La.R.S. 14:78.1(D)(1) and 14:27(D)(3) is no more than ten years, with or without hard labor, or a fine of not more than $25,000, or both.
We have considered the potential sentences that the trial court could have imposed on the defendant, as well as the nature of the offenses the defendant perpetrated, and find that his five-year, concurrent sentences for molestation of a juvenile and attempted aggravated incest are not excessive. Accordingly, this assignment of error is without merit.
ERRORS PATENT
The crime of aggravated incest is triable by a jury of six. La.R.S. 14:78.1; La. Code Crim.P. art. 782. The court minutes of the voir dire proceeding indicate that five jurors were selected, but the transcript of the voir dire proceeding reflects that six jurors and an alternate were selected. "[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, the trial court is hereby ordered to correct the minutes of the voir dire proceeding to accurately reflect that six jurors and an alternate were selected for the trial of this matter.
DISPOSITIONThe defendant's convictions and sentences are affirmed. The trial court is ordered to correct the minutes of the voir dire proceeding to accurately reflect the final jury panel and the alternate selected.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF MINUTES.
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