State v. Melgar

296 So.3d 1107

STATE of Louisiana

v.Edin O. MELGAR

NO. 19-KA-540

Court of Appeal of Louisiana, Fifth Circuit.

April 30, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Gail D. Schlosser, Harahan, Zachary P. Popovich, Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT, EDIN O. MELGAR Lieu T. Vo Clark

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

CHEHARDY, C.J.

In this appeal, defendant, Edin O. Melgar, seeks review of the excessiveness of his sentences for convictions of sexual battery on a juvenile under the age of thirteen and indecent behavior with a juvenile under thirteen. For the following reasons, we affirm defendant's sentences, and we remand for the correction of an error patent on the face of the record.

PROCEDURAL HISTORY

On November 20, 2018, the Jefferson Parish District Attorney's office filed a bill of information charging defendant with sexual battery of a juvenile under thirteen, in violation of La. R.S. 14:43.1 (count one), and with indecent behavior with a juvenile under thirteen, in violation of La. R.S. 14:81 (count two). Defendant pled not guilty at his arraignment. On August 7 and 8, 2019, the matter proceeded to trial before a twelve-person jury. An interpreter was present for defendant at trial. The jury unanimously found defendant guilty as charged on both counts.

On August 21, 2019, defendant filed a motion for new trial, which the trial court denied. That same day, the trial court sentenced defendant on the sexual battery charge to seventy years imprisonment at hard labor, and further sentenced him to twenty-five years at hard labor for his indecent behavior conviction. The trial court ordered that these sentences run concurrently with one another and without benefit of parole, probation, or suspension of sentence. Further, the trial court ordered that should defendant be released from prison, he must register as a sex offender for life. Defendant filed a motion to reconsider sentence, which was denied. Defendant now appeals challenging his sentences as unconstitutionally excessive and challenging the denial of his motion to reconsider sentence.

FACTS

S.E., the mother of the victim, G.E., testified that she met defendant, Edin Melgar, in 2010 or 2011 while living in South Carolina. At that time, G.E. was a toddler and living with S.E.’s parents in El Salvador. Defendant and S.E. began dating and eventually moved to Metairie, Louisiana, and lived with one another. G.E., who was four years old, moved to Metairie to live with defendant and her mother. S.E. testified that she and defendant eventually married and subsequently had two children together. According to S.E., while not biologically related, G.E. looked to defendant as a father figure as evidenced by her calling him "Poppi" or "Daddy."

S.E. further testified that in 2016, she and defendant attended and volunteered at Good Shepherd Baptist Church in Metairie. According to S.E., when she volunteered at the church by herself, defendant would remain at home to take care of the children. G.E. was nine years old in 2016.

At the time of trial, G.E. was twelve years old and going into the seventh grade. She testified that she lived with her grandparents in El Salvador until the age of three-and-a-half when she moved to Metairie to live with her mother and stepfather, defendant, whom she called "Poppi." G.E. considered him a father figure. G.E. told the jury that defendant began touching her "private parts," and having her touch his, when she was nine and in the fourth grade. According to G.E., the first incident occurred while she was doing her homework and defendant called her into his bedroom. When she went into his room and realized defendant was naked, she immediately tried to leave. Defendant, however, grabbed her arm, sat her on a stool, and instructed her to touch his "private parts." G.E. testified that she endured several similar encounters between her and defendant over the next two years; most incidents occurred on Sundays when defendant was off of work. G.E. stated that there were times when her mother was actually in the house when these sexual things happened, but because defendant had threatened to harm her if she told anyone, G.E. did not call out to her mother. G.E. expressed that she continues to be afraid as a result of the things that happened to her, so much so that she declined to make a month-long planned visit with her biological father in New York for fear that the same thing would happen whenever she was alone with a man, and she was afraid that her father was going to take her away from her mom.

G.E. described for the jury an incident that occurred when she and her two half-sisters were home alone with defendant. On this occasion, G.E. was in the bathroom when defendant walked in and closed the door. He then proceeded to remove G.E.’s shorts and underwear, began touching her, and directed her to squat down. When G.E. told him "no," defendant asked her, "Do you want me to make you pregnant or do you want the finger?" Feeling as if she had no choice and no way to get out of the bathroom fast enough, G.E. testified that she told him "the finger." Defendant then pushed his finger up G.E.’s vagina, which she testified "hurt." G.E. stated that she "kind of yelled" and her sisters heard, prompting one sister to attempt to enter the bathroom by sticking her hand inside the door, but defendant "slammed the door and kind of grabbed her arm with the door."

G.E. testified that when she was a little bit older, defendant gave her a cell phone. G.E. stated that defendant falsely accused her of watching YouTube videos about "people having sex," which videos defendant then showed to her. When G.E. was approximately eleven years old, defendant started texting her and asking that she send him nude pictures of herself—"pictures of [her] front private parts and [her] back private parts"—which G.E. stated she did not do.

On September 26, 2018, when G.E. was eleven years old, G.E. testified that she was alone in her bedroom doing her homework and was also texting defendant on her cell phone, when her mother unexpectedly walked in. G.E. stated that she threw the phone onto the bed attempting to hide it from her mother because she thought "[defendant] was going to get mad and that he was going to hit [her] or get violent." S.E. then snatched G.E.’s phone, started reading the open messages, including a message from defendant to G.E. asking her to send him a photograph, and a message from G.E. to defendant asking if he could "please wait until [her] period is over." When asked by S.E. what the messages meant, G.E. testified that she finally divulged to her mother that defendant had been touching her private parts since she was nine years old.

The following day, S.E. contacted the family's pastor at Good Shepherd, Gonzalo Rodriguez, to schedule a family meeting. S.E., G.E. and Mr. Rodriguez testified that on September 28, 2018, S.E., G.E. and defendant met with Mr. Rodriguez at the church. Mr. Rodriguez first met with S.E. and defendant and then met privately with G.E. During the private meeting, Mr. Rodriguez explained to G.E. that she had the right to call the police and report what happened. At G.E.’s request, Mr. Rodriguez and G.E. called 911, and defendant left the church. A portion of a recording the 911 call was played for the jury.

Deputy Steve Mehrtens of the Jefferson Parish Sheriff's Office ("JPSO") testified that he was dispatched to the church on September 28, 2018. According to Deputy Mehrtens, he was responding to a report called in by a mother concerning her daughter who was being victimized by the mother's "significant other." Upon his arrival at the church, Deputy Mehrtens spoke to S.E. and the church's pastor. Deputy Mehrtens then spoke to G.E. while her mother and the pastor observed from a distance in the same room. Deputy Mehrtens testified that during this conversation, G.E. was "actually very confident in her answers." Based on his conversation with G.E. and her disclosure of sexual abuse, Deputy Mehrtens stated that he followed procedure by calling in a personal violence detective.

Deputy Judd Harris testified that at the time of these events, he was a JPSO detective assigned to the Personal Violence Unit and responded to the church on September 28, 2018. Deputy Harris stated that upon his arrival, G.E. and S.E. were with their pastor. Deputy Harris testified that he spoke privately with G.E., who provided him with a brief disclosure of what defendant had done to her. Specifically, G.E. told Deputy Harris that she had received text messages from defendant and that he had verbally asked her to send him nude photographs of herself. G.E. showed him the text messages, which were written in Spanish, and told him that she refused to send defendant the photographs because she was on her period.

Deputy Harris and G.E. testified that later that evening, while at the JPSO Investigations Bureau, G.E. was shown a photograph and was instructed to identify the person depicted therein, tell how she knew him, and describe what happened. On the back of the photograph, G.E. identified her stepdad, Edin Melgar, defendant, as the person in the picture, and wrote, "He sexually abused me." Deputy Harris stated that G.E. told him that defendant's last attempt to sexually abuse her was on September 10, 2018. Deputy Harris testified that, at a later date, he went to the Jefferson Children's Advocacy Center ("Jefferson CAC"), where he observed G.E. from a separate monitoring room provide a detailed disclosure consistent with what she had previously related to him at the church.

Ericka Dupepe, the current executive director of Jefferson CAC and an expert in the field of forensic interviewing, testified that with a court-certified translator present in the room, she conducted the forensic interview of G.E., which was videotaped and recorded...