### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2023 KA 0221 

# Z/ vr STATE OF LOUISIANA VERSUS JAMES BISHOP

JUDGMENT RFNDL•' REll: 

### OCT 18 2023 Appealed from The Twenty - Second Judicial District Court Parish ofSt. Tammany • State of Louisiana Docket Number 611, 058 • Division G 

### The Honorable Scott Gardner, Presiding Judge
Bertha Moseley Hillman COUNSEL FOR APPELLANT Louisiana Appellate Project DEFENDANT—, lames Bishop Covington, Louisiana Warren L. Montgomery DistrictAttorney Matthew Caplan J. Bryant Clark, Jr. Assistant District Attorneys Covington, Louisiana COUNSEL FOR APPELLEE State of Louisiana

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ. 

# Unfar. J.,

rAc 4 

# 1 rJaof)WELCH, J.



### The State of Louisiana charged the defendant, James Bishop, by grand jury indictment with first degree rape of a victim under the age ofthirteen years (T.Z.') count I), a violation of La. R.S. 14: 42(A)(4); molestation ofajuvenile (T.Z.) ( count II), a violation of La. R.S. 14: 81. 2(A)(1), ( B)( 2) and (C); production ofpornography 

### involvingjuveniles (count III),a violation of La. R.S. 14: 81. 1( A)( 1) and (E)(4) ( prior 

### to amendment by2018 La.Acts,No. 682, § 1); aggravated rape2 of a victim under the age of thirteen years ( T.P.) ( count IV), a violation of La. R.S. 14: 42(A)(4); molestation of a juvenile (T.P.) ( count V), a violation of La. R.S. 14: 81. 2( A)( 1), 13)( 2) and (C); 

### and pornography involvingjuveniles (count VI), a violation of La. R.S. 14: 81. 1( A)(1)( 2) and ( E)( 1). ( R. 62-63). The State severed Count III prior to trial. 

### Following ajury trial,thejury found the defendant guiltyas charged on counts 

### I, It, IV,V,and VI by unanimous verdicts.3 On count I,the trial court sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count II, the trial court sentenced the defendant to a 

### concurrent term oftwenty years at hard labor, five years without benefit ofparole, probation, or suspension of sentence. On count III, the trial court sentenced the 

### defendant to a concurrent term of twenty years at hard labor without benefit of probation, parole, or suspension of sentence. On count IV, he was sentenced to a

We reference the victims and their family members by their initials. See La. R.S. 46: 1844(W). Z 2015 La. Acts, No. 184, § 1 and 2015 La, Acts, No. 256, § I renamed the offense of aggravated rape as first-degree rape. When the counts were listed for thejury at the beginning oftrial, count III was omitted, count IV was listed as count IIT, count V was listed as count IV, and count VI was listed as count V, The responsive verdict form provided to thejury listed the responsive verdicts for counts I and III (as renumbered) together, counts 11 and IV (as renumbered) together, and count V ( as renumbered) separately. The verdict form listed the counts in the same order as the responsive verdict form, but numbered them from I to V, rather than I, III (as renumbered), II, IV (as renumbered) and count V (as renumbered). The jury found the defendant guilty on all counts. Accordingly, the 

### renumbering ofthe counts did not affect substantial rights of the defendant. See La. C. Cr.P. art. 921. 2concurrent term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. 4n count V, he was sentenced to a concurrent 

### term oftwenty years at hard labor, five years without benefit ofparole, probation, or suspension of sentence. 

### The defendant now appeals, contending reversible error occurred when the testimony ofa State expert invaded the province ofthejury. For 

### the following reasons, we affirm the convictions and sentences on counts 1, 1I, IV and V; we vacate the sentence on count III,and remand with instructions. FACTS 

### M.N. lived with the defendant in Slidell for approximately twenty years. ( R. 670). 

### She had two children and four grandchildren, including granddaughters T.P., and T.Z. While M.N.was living with the defendant, he helpedto take care ofT.P. and T.Z. and was left alone with them. 

### T.P. testified that when she was eight years old, the defendant became sexually 

### inappropriate with her by putting his mouth on her vagina. Thereafter, the defendant 

### performed oral sex on her too many times to count. When T.P. was nine or ten years old, at the defendant' s request, she performed oral sex on him, and he touched her private area and breasts. When T.P. was twelve years old, the defendant started 

### touching herwhen she was going to sleep and asked to see and touch hervagina. When 

### T.P. wasthirteen years old,the defendant also began asking hertotouch his penis with her hands. T.P. and T.Z. both described one incident where the defendant victimized the 

### two ofthem at the same time by telling T.Z. to touch T.P.' s vagina. T.Z. complied with the demand afterT.P. told herto "do it,just get it overwith." T.Z. did not disclose the abuse until she was fifteen years old because she did not think anyone would believe her.

3

### When T.P. was fourteen orfifteen years old,the defendant would ask herto send



### him pictures ofhervagina, breasts, and entire body.' He would also ask her personal questions about her relationships with boys and girls and then use what she told him to 

### blackmail her into complying with his demands. When T.P. was fifteen or sixteen years old, the defendant bought her an LG phone. Thereafter, he called the phone and talked to T.P. while he masturbated. T.P. identified a photograph of her breasts that she took with the phone and sent to the defendant at his request when she was fifteen

years old. 

### T.Z. testified when she was seven years old, the defendant became sexually inappropriate with her by showing her his penis, by touching her vagina, and by making her touch his penis with her hands. When T.Z. was twelve years old, the defendant touched her vagina with his mouth. When T.Z. was between thirteen and 

### fifteen years old,the defendantwould contact herusing FaceTime andtell herto show him her breasts and vagina. The defendant took screen shots ofthis and threatened to 

### post them on Facebook if she did not comply with his demands. T.Z. identified text 

### messages between herselfand the defendant stating, "[ T.Z.], you leave me no choice. 

### I' m going to Facebook[.]" She testified the conversation was about the defendant threatening to post the screen shots. When T.Z. was fifteen years old, she disclosed 

### the defendant was abusing her, by writing a note stating, " I kept this secret for years. Grandpa is a rapist." T.Z. testified when she referenced " Grandpa," she was referring to the defendant. IMPROPER EXPERT TESTIMONY 

### In his sole assignment oferror, the defendant contends the expert testimony of Anne Troy,' in which she diagnosed T.Z. with chronic child sexual abuse, invaded the 

### province ofthejury, resulting in reversible error.

T.P. testified she used her own phone to send these messages. 5 This witness referenced herselfas " Dr. Troy" and testified that she was a nurse practitioner and had been a nurse for forty-four years. 0Louisiana Code of Evidence article 704 provides: 

### Testimony in the form of an opinion or inference otherwise 

### admissible is not to be excluded solely because it embraces an ultimate 

### issue to be decided by the trier offact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. As a general matter, if" scientific, technical, or other specialized knowledge will 

### help the trier of fact to understand the evidence or to determine a fact in issue[," a 

### qualified expert may testify in the form of an opinion. La. C. E. art. 702(A)( 1). However, "

### experttestimony,while not limited to matters ofscience, art orskill, cannot invade the field of common knowledge, experience and education of men." State v. 

### Young,2009- 1177 (La.415/ 10), 35 So.3d 1042, 1046-47, cert. denied, 562 U.S. 1044, 131 S. Ct, 597, 178 L.Ed.2d 434 ( 2010); State v. Stucke, 419 So.2d 939, 945 ( La. 1982). 

### Under La. C.E. art. 704, a trial judge may admit expert testimony which embraces an ultimate issue to be decided bythe trier offact[,]" but the expert witness 

### is not permitted to testify to the ultimate issue ofa defendant' s guilt. State v. Irish, 2000-2086 ( La. 1115102), 807 So.2d 208, 212, cert. denied, 537 U.S. 846, 123 S.Ct. 185, 154 L.Ed.2d 73 ( 2002). In State v. Foret, 628 So.2d 1116 ( La. 1993), the court recognized that scientific 

### testimony could be admissible for very " limited purposes," and a proper presentation 

### ofthetestimonywould focus on explaining to ajury why superficially bizarre reactions such as delayed reporting take place. Furthermore, the opinion testimony should demonstrate or explain in general terms the behavioral characteristics of child abuse 

### victims in disclosing alleged incidents, without giving testimony thatdirectly concerns the particular victim' s credibility. Foret, 628 So.2d at 1129-30. State v. Chauvin, 2002- 1188 ( La. 5120103), 846 So. 2d 697 involved an appeal of a conviction for indecent behavior withjuveniles. Chauvin, 846 So.2d at 698. At 

### trial, over the objection ofthe defense, the State presented expert testimony from a licensed clinical social worker who testified she had seen one ofthe victims as a patient

5

### at a facility providing counseling forvictims ofsexual assault and domestic violence.

Chauvin, 846 So.2d at 699. The social workerdiagnosed the victim as suffering from Post - Traumatic Stress Disorder (PTSD). fid. At trial, the State asked the social worker whetherthe clinical findings, both subjective and objective, that she observed in regard 

### to the victim, were those consistent with a child who had been sexually abused. Chauvin, 846 So.2d at 700. The social worker replied, "Yes, the symptoms were that of post-traumatic stress." Id. 

### The Supreme Court held that the testimony ofthe social worker violated the 

### rules ofDaubert' and Foret, concluding: Under these circumstances, we find that the State introduced the expert 

### testimony regarding [the victim' s] diagnosis ofPTSD for the purpose of substantively proving that sexual abuse occurred. There is no indication that the State attempted to limit this evidence to explain delayed reporting, 

### which could be construed as apparently inconsistent with 

### having been sexually abused. There is no showing that PTSD evidence is reliable and accurate as substantive proofofsexual abuse and therefore, it is inadmissible for this purpose. We hold that this evidence, like CSAAS-based evidence, 

### should be admissible only for the limited 

### purpose of explaining, in general terms, certain reactions of a child to abuse thatwould be usedto attackthevictixn/witness' s credibility. Foret, 628 So.2d at 1131. The trial court in its discretion can determine, on a 

### case by case basis, if a particularized hearing is necessary ( Daubert 

### hearing) to test the reliability of expert testimony on PTSD when it is being offered for the limited purposes discussed above. Chauvin, 846 So.2d at 708- 09. 

### On previous occasions, this Court has considered similartestimony from expert 

### witnesses, including the expert witness involved in this case. State v. Griffin, 2015- 1765 ( 

### La. App. lst Cir. 4127116), 2016 WL 2840309, * 1 ( unpublished), involved a conviction for aggravated rape. 

### At trial over defense objection, Nurse Troy agreed with the State that her observations ofthe victim' s demeanor, as well as the physical findings, were consistent with sexual abuse. Griffin, 2016 WL 2840309 at * 4. On appeal, this Court distinguished the testimonies of Dr. Janzen in Foret and the social

b Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 ( 1993). G

### worker in Chauvin, noting Nurse Troy had not relied upon a collateral diagnosis, such

as CSAAS or PTSD, to reach a finding ofsexual abuse. Griffin, 2016 WL 2840309

at * 6. 

### We also noted Nurse Troy had not definitively stated that the victim had been sexually abused, whereas in Foret, 628 So.2d at 1120, Dr.Janzen had testified thatthe victim' s details were " consistent with the dynamics of sexual abuse," and his " only 

### conclusion" was that she " had been sexually abused." Griffin, 2016 WL 2840309 at 6. 

### We found that while Nurse Troy had agreed with the State that the victim's demeanor, as well as the physical findings, were " consistent with a child who has been abused," on cross-examination, she had admitted she could not make a definitive 

### finding ofsexual abuse. Id. Accordingly, we concluded that Nurse Troy' s testimony
was within the limits of Daubert, Foret, and Chauvin. Id. 

### State v. Grandison, 2018-0046 (La.App. 1st Cir. 11/ 5/ 18), 2018 WL 5785333, 1 ( unpublished), writ denied, 2018- 1992 ( La. 6/3! 19), 272 So.3d 545, involved a conviction for aggravated rape, and the defendant' s challenge to the admission of 

### testimony from expertwitness Dr.Jackson thatherdiagnosis ofchild sexual abuse was solely based on the child' s history provided by the victim. Grandison, 2018 WL 5785333 at * 6- 9. On appeal, we found the issue barred from review. See La. C. Cr.P. art. 841; Grandison, 2018 WL 5785333 at * 7. Moreover,we noted, as in Griffin, Dr. 

### Jackson had not affirmatively stated that the victim had been sexually abused or that she was being truthful. Grandison, 2018 WL 5785333 at * 9. Indeed, when asked if 

### she knewwhetherthe victim had "absolutely told [Dr.Jackson] the truth," Dr. Jackson
answered, " 

### No one can speak to the veracity of someone' s statement. I' m not a lie 

### detector. No one would be able to say." 

### Id. We found Dr.Jackson' s testimony "was 

### certainly not ` tantamount to an opinion that the defendant was guilty of the crime chargedL,]"' and thus, concluded it was within the limits of Daubert, Foret, and Chauvin. Id., 

### oting State v. Wheeler, 416 So.2d 78,81 ( La. 1982).

7

### State v. Schwaner, 2018- 1012 ( La. App. I` Cir. 2/28/ 19), 2019 WL 990223,

1 ( unpublished), 

### involved convictions for sexual battery of M.L. At trial, the 

### defendantobjected tothe following testimony from Nurse Troy: Q. What did you learn from [M.L.] 

### during this incident history? 

### A. She told me that Greg, her adopted father/uncle had sexually abused her by putting his penis in her mouth, that it was wet, clothes were off. He had just his shorts on when he was in the room. I always ask kids 

### what is the saddestthing foryou aboutthis because sometimes kids look 

### very flatwhen theyare giving ahistoryand she saidthe saddestthingwas talking about it. She had to tell her aunt because she found out. 

### Q. Okay. t want to turn to the assessment page, what is the purpose of the assessment page? 

### A. In medicine, we get a subjective history from patients,we getphysical findings then we compare those and we make differential diagnoses, ruled in or out and then make a final diagnosis. So, this would be the 

### place where we would document that, the history provided to me, what 

### the physical exam showed,what lab was pending and then my diagnosis. Q. What was your assessment In this case? 

### A.You' re asking my medical diagnosis. Q. Yes, ma' am. A. That it was a sexual abuse, chronic. Schwaner, 2019 WL 990223 at * 9. 

### On appeal, this court found Nurse Troy' s testimony that she diagnosed the

victim with " sexual abuse, chronic" to be an expression of an opinion as to the defendant' s guilt or innocence, which should not have been allowed into evidence. Schwaner, 2019 WL 990223 at * 10. 

### State v. Mullen, 2018-0643 ( La. App. 1' Cir. 12121/ 18), 269 So.3d 772, 775, writ denied, 2020-00408 ( La. 1016120), 302 So. 3d 529, involved convictions for aggravated rape and molestation ofajuvenile (A.S.). At trial, the defendant moved for 

### a mistrial in response to the following testimony from Nurse Troy: Prosecutor: Well, you examined [A.S.], correct, on October 19, 2016? 

### Troy: Yes, I did.

MProsecutor: And what was [sic] your findings?



### Troy: And, again, she has a history that's clear—what we' re looking for 

### ifyou' re looking is she' s got a clearand detailed historythat she provided to me. 

### It did not have any ofthose red flags that had me concerned for her, 

### either having a psychiatric illness or having been coached, so, 

### therefore, that was consistent with her being normal in her physical findings. 

### So most child sexual abuse is diagnosed based on the history presented to us. So I made the diagnosis ofchild sexual abuse and did all the lab work involved in that. State v. Mullen, 269 So.3d at 785. 

### 4n appeal, this courtfound Nurse Troy'stestimonythatshe "madethe diagnosis

of child sexual abuse" to be " an unequivocal statement regarding [ the victim' s] 

### credibility by conclusively diagnosing her as having been a victim ofchild sex abuse, be it solely a medical diagnosis or otherwise." Mullen, 269 So.3d at 785- 86. 

### In the instant case, Dr.Anne Troywas accepted as an expert in the field ofchild
abuse and child abuse pediatrics. She stated her medical diagnosis and treatment was 

### driven by the history provided by the children she examined. She noted that history 

### was often delayed because sexually abused children are more likely than not abused 

### by someone they know,which results in them delaying reporting the abuse. 

### Dr.Troy obtained a history from and examined T.Z. The State asked Dr.Troy what was her diagnosis afterthe examination. Dr. Troy replied, "[ c] hild sexual abuse,

chronic." The defense objected, and the trial court overruled the objection. 

### The State continued questioning Dr.Troy as follows: State]: Is [T.Z.' s] disclosure consistent with child sexual abuse? 

### Dr. Troy]: [ T.Z.] provided me a clear and a detailed, spontaneous narrative that was consistent with child sexual abuse. 

### Thereafter, Dr.Troy identified a recording ofthe medical history provided by T.Z.,which was played forthejury. The State asked Dr.Troy, "you had stated earlier that, after your assessment of [ T.Z.], you found that she provided a clear and detailed 

### history ofongoing sexual abuse, is that fair?" Dr. Troy, replied, "[t] hat is correct." 

### The defense engaged in the following colloquy with Dr.Troy:

9Defense]: 

### So how many times have you testified, have said that the

prosecutor says, you know this child has got up before you and said that 

### theywere abused andyouropinion is, well, I thinkthat child's lying,they weren' t abused? 

### Dr. Troy]: 

### Well, I would never saythat a child is lying because, again, I' m not a human lie detector. 

### So what I' m looking for is whether or not I have a history provided to me that' s clear and detailed in the sense ofa narrative. 

### And having received that, I will put, as will anyone who' s trained in child maltreatment, that this is, from a medical point ofview, is consistent with child sexual abuse. I don' t investigate. 

## Thereafter,thedefendantfiled awritten motion foramistrial,arguing Dr.Troy's testimony that her medical diagnosis was chronic child sexual abuse was reversible error under Foret, Chauvin, Schwaner, and Mullen. 

### At the hearing on the motion, 

### the State pointed out Dr.Troy had not stated that T.Z.was telling the truth orthatthe defendant was guilty of the charges and had explained her challenged statement indicated T.Z. provided a clear and detailed history ofsexual abuse. 

### The trial court noted, after reviewing the cited authorities and observing Dr. Troy and the context in which the challenged statement was given, found that the statement was not a prejudicial remark requiring a mistrial under La. C.CrR art. 770, 

### but at most a remark requiring an admonition under La. C.CrR art. 771. E The trial court admonished thejury: 

### Members ofthe jury, during the testimony of Dr. Anne Troy, a question was posed, and I paraphrase, whatwas your diagnosis involving T.Z.]? The answer in a short form, and I paraphrase, is child sexual 

### abuse comma chronic. Thejury will disregard that testimony.
Louisiana Code of Criminal Procedure article 770 provides that a defendant may move for a mistrial when the judge, district attorney, or a court official makes a remark or comment within the hearing ofthe jury, during the trial or in argument, which directly or indirectly refers to: ( 1) race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind ofthejury; (2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; ( 3) the defendant' s failure to testify in his own defense; or (4) the judge' s refusal to direct a verdict. Louisiana Code of Criminal Procedure article 771 allows the State or the defendant to request that the court promptly admonish the jury to disregard irrelevant or prejudicial remarks made by the 

### judge, district attorney, or a court official when the remarks are not within the scope ofLa. C.Cr.P. an. 770, or made by a person otherthan thejudge, district attorney, or court official, regardless of whether or not the remark is within the scope of La. C.Cr.P. art. 770. The court may grant a mistrial on the defendant' s motion if it is satisfied that an admonition is insufficient to assure the defendant a fair trial. La. C. Cr.P. art. 771. A mistrial under La. C.Cr.P. art. 771 is at the trial 

### court' s discretion and should be granted only where the prejudicial remarks make it impossible for the defendant to obtain a fair trial. State v. Walston, 2022-0317 (La. App. 1" Cir. 11/ 4/22), 2022 WL 16707997, * 7. 10

### The trial court also charged thejury as follows: 

### An expert witness may state an opinion concerning matters that relate to their field ofexpertise, and may also state their reasons for the 

### opinion. You are notbound to acceptsuch experttestimony andyou may give it great weight or slight [weight] oryou may reject such testimony entirely, if,in yourjudgment, the reasons for it are not sound. ( R. 945- 46). 

### Under Schwaner and Mullen, Nurse Troy's diagnosis of"[ c] hild sexual abuse,
chronic" 

### fell within the scope ofArticle 771, and thus, the granting ofa mistrial was in the broad discretion ofthe trial court. 

### See State v. Caminita, 2016-0121 ( La.App, 1 "" Cir. 9/ 16/ 16), 203 So.3d 1100, 1106,writ denied, 2016-2045 (La.9/6/ 17), 244 So.3d 988. Louisiana Code of Criminal Procedure article 775 provides in part that "[ u] pon 

### motion ofadefendant,amistrial shall be ordered, and in ajury case thejury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the 

### defendant to obtain a fairtrial, or when authorized by [ La. C.Cr.P. art.] 770 or 771." 

### As a general matter, mistrial is a drastic remedy that should only be declared upon a 

### clear showing of prejudice by the defendant; a mere possibility of prejudice is not

sufficient. 

### In addition, a district court judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. 

### A reviewing court should not reverse a defendant' s conviction and sentence unless the error has affected the substantial rights ofthe accused. See La. C. Cr.P. art. 921; Id. In both Schwaner and Mullen, this Court found the error to be subject to harmless error analysis. See Schwaner, 2019 WL 990223 at * 11; Mullen, 269 So. 3d at 786. 

### The proper analysis for determining harmless error " is not whether, in a trial 

### that occurred without the error, a guilty verdict would surely have been rendered, but 

### whetherthe guilty verdict actually rendered in this trial was surely unattributable tothe

error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d 182 ( 1993); Schwaner, 2019 WL 990223 at * 11; Mullen, 269 So.3d at 786.

Z1

## Even in a capital case,the Louisiana Supreme Courthas found thetestimony of

expert witnesses thatthe defendant was the perpetrator harmless where the testimony was cumulative and corroborative of other admissible evidence, and the jury was instructed that they alone were to determine the ultimate issues. See State v. Code, 627 So.2d 1373, 1384- 85 ( La. 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 ( 1994) (" 

### Considering the admissible evidence concerningthepalm prints, 

### no rational juror could find those facts without also finding the ultimate fact of the defendant' s guilt. 

### It is beyond doubt the guilty verdict in this case was unattributable to the erroneous testimony."). 

### See also, State v. Batiste, 99- 1481 ( La. App. 151 Cir. 3/31/ 00), 764 So.2d 1038, 1040, writ denied, 20001648 (La. 6/22/01), 794 So.2d 778 

### A]ny error was harmless beyond a reasonable doubt. The values contained in this exhibit were merely cumulative and corroborative of the previously admitted testimony[.]"); 

### State v. Hawkins,633 So.2d 301, 307 (La.App. I" Cir. 1993), ("[ H]ad 

### there been error in allowing the testimony, which we need not decide, the error would have been harmless. 

### An observation by Ms. Logan that the victim had the demeanor ofa child who had been sexually victimized is merely cumulative ofother evidence in 

### the record that the victim was indeed molested by the defendant."); State v. Moser, 

### 588 So.2d 1243, 1249 (La.App. V Cir. 1991), writ denied, 594 So.2d 1314 (La. 1992) T]he prosecutor' s remark was cumulative and, as such, amounts to harmless
error."). 

### In the instant case, Dr.Troy' s diagnosis of "[c] hild sexual abuse, chronic" was

cumulative and corroborative of other admissible evidence, specifically: the 

### photograph ofT.P.' s breasts and her testimony that, when she was fifteen years old, she used the phone the defendant bought her to photograph her breasts and to send the photograph to the defendant at his request; the evidence ofthe text messages between 

### the defendant and T.Z. and her testimony that the defendant victimized her using 

### FaceTime; and the testimony ofboth T.P. and T.Z. that the defendant ordered T.Z.to

12touch T.P.' s vagina. 

### No rationaljuror could find these facts without also finding the

ultimate fact ofthe defendant' s guilt. See Code, 627 So.2d at 1385. 

### Additionally,the 

### jury was admonished to disregard the challenged testimony of Dr. Troy and was charged that it need not accept expert testimony and was free to entirely reject such testimony. 

### Accordingly, the challenged testimony of Dr. Troy was harmless in this case, and the trial court did not abuse its broad discretion in finding the testimony insufficiently prejudicial to deprive the defendant ofa fairtrial and that an admonition was sufficient to cure the prejudice from the testimony. For these reasons, this assignment oferror is without merit. SENTENCING ERROR Under La. C.Cr.P. art. 920(2), we are limited in our review to errors discoverable 

### by a mere inspection of the pleadings and proceedings without inspection of the 

### evidence. After a careful review ofthe record, we have found sentencing errors in this

matter. 

### See State v. Price, 2005-2514 ( La. App. 1 sc Cir. 12128106), 952 So.2d 112, 123 ( en Banc), writ denied, 2007-0130 ( La. 2/22/08), 976 So.2d 1277. 

### On count I7I, the trial court imposed a sentence oftwenty years at hard labor without benefit of probation, parole, or suspension of sentence. Thereafter, the clerk advised the trial court that count III was severed. The trial court stated the counts were renumbered, and count IV was renumbered as count III. The trial court also stated that 

### ifthe minute clerk had any issues with the numbering ofthe counts correlating to the sentences, the court would review the issues in the uniform commitment order.' The trial court did not vacate the sentence imposed for count III. Further, the sentence imposed for count IV—life without the benefit of probation, parole, or suspension of 

### sentence (the mandatory sentence for count IV) was illegal forcount III. See La. R.S. 14: 42( D)( 1) and La. R.S. 14: 81. 1( E)( 4) ( 

### prior to amendment by 2018 La. Acts, No. 682, § 1). 

### Accordingly,therecord indicatesthetrial court imposedan invalid sentence

s The record does not contain a uniform commitment order. 13

### for count 111.9 A valid sentence must rest upon a valid and sufficient: ( 1) statute; ( 2)

indictment; and ( 3) 

### verdict,judgment, or plea of guilty. La. C.Cr.P. art. 872. The 

### sentence imposed on count III does not rest upon a valid and sufficient verdict, 

### judgment, orplea ofguilty. Accordingly, the sentence imposed on count III hereby is

vacated. 

### The sentencing transcript further reflects the trial court failed to impose a 

## sentence on countVI.10 A sentencing erroroccurs when adistrict court, in sentencing for multiple counts, does not impose a separate sentence for each count. State v. 

### Mayo, 2012-0707 (La. App. I' Cir. 617113), 2013 WL 2490361, * I ( unpublished); 

### State v. Soco, 94- 1099 (La.App. 1' Cir. 6123/ 95), 657 So.2d 603. It is well settled that a defendant can appeal from a final judgment ofconviction 

### only where a sentence has been imposed. See La.C.Cr.P. art. 912(C)( 1); Mayo, 2013 WL 2490361 at * 1. In the absence of a valid sentence on count VI, the defendant' s 

### appeal ofthat count is not properly before this court. Mayo, 2013 WL 2490361 at * 1. Therefore, we do not consider the defendant' s assignment of error in regard to count 

### VI, as it is not properly before us. Accordingly,the matter is remanded forsentencing
on count VI. 

### After sentencing on count VI, the defendant may perfect a new appeal

on that count. DECREE CONVICTIONS AND SENTENCES ON COUNTS I, II, IV & V AFFIRMED; SENTENCE ON COUNT III VACATED; REMANDED WITH INSTRUCTIONS.



### s The sentencing minutes do not reflect a sentence for count III. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). 

### 10 The sentencing minutes reflect a sentence for countV1. However,thetranscript must prevail. Lynch, 441 So.2d at 734. 14STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

DOCKET NUMBER

2023 KA 0221

STATE OF LOUISIANA

VERSUS
JAMES BISHOP
HOLDRIDGE, J., concurring. 

### I respectfully concurwith the report. Underthe facts ofthis case, I agree with 

### the majority that the defendant was proven guilty ofthe crimes - charged beyond a reasonable doubt. However, I am troubled about the error of the trial court in 

### allowing the testimony ofDr.Anne Troy,wherein she made the diagnosis of "child

sexual abuse, chronic." 

### A written motion for a mistrial was filed by the defendant, but the trial court deemed the statement not to be so prejudicial of a remark as to require a mistrial under La. C. Cr.P. art. 771. 

### Clearly, the remark made by Dr.Anne Troy could not be any more prejudicial. The error ofthe trial court is compounded 

### by the jurisprudence that such a profound error is subject to the harmless error analysis. 

### See State v. Schwaner, 2018- 1012 ( La. App. 1 Cir. 2/28119), 2019 VVL 990223, at * 11 ( unpublished); State v. Mullen, 2018- 0643 ( La. 

### App. 1 Cir. 12/21/ 18), 269 So.3d 772, 786, writ denied 2020-00408 ( La. 1016/20), 302 So.3d 529.