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State v. Goodeaux

Court of Appeals of Louisiana, Third Circuit

November 2, 2017

STATE OF LOUISIANA
v.
TERRY JAMES GOODEAUX -AKA- TERRY GOODEAUX

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 22581-13 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

          John Foster DeRosier Fourteenth Judicial District Attorney Carla Sue Sigler Elizabeth Brooks Hollins Fourteenth Judicial Assistant District Attorneys COUNSEL FOR: State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Terry James Goodeaux

          Terry Goodeaux Allen Correctional Center

          Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

          BILLY HOWARD EZELL JUDGE

         Terry James Goodeaux was indicted on November 13, 2013, with two counts of sexual battery, violations of La.R.S. 14:43.1, and one count of attempted sexual battery, a violation of La.R.S. 14:27 and 14:43.1. A jury trial commenced on September 15, 2015, following which Defendant was convicted of two counts of sexual battery and one count of attempted simple battery, violations of La.R.S. 14:27 and 14:35. On October 29, 2015, Defendant filed a "Motion for New Trial." A hearing was held on the motion on January 22, 2016, following which the trial court denied Defendant's motion for a new trial. Defendant was sentenced on January 22, 2016, to twenty-five years on each conviction for sexual battery, to be served concurrently, and to three months in the parish jail on the attempted simple battery conviction, to be served concurrently with the twenty-five year sentences, and was given credit for time served on all sentences. Defendant filed a "Motion to Reconsider Sentence." The motion was denied on February 1, 2016, without a hearing. On November 5, 2016, Defendant filed an "Application for Post-Conviction Relief, " wherein he sought an out-of-time appeal. Defendant was granted an out-of-time appeal on December 9, 2016.

On appeal, Defendant asserts five assignments of error, as follows:
1. The State failed to sufficiently prove Terry Goodeaux was guilty of sexual battery although the lesser included offense of simple battery was proven beyond a reasonable doubt .
2. Terry Goodeaux's conviction for "attempted simple battery" is patently erroneous because no such crime exists under Louisiana Law. Thus, the trial court erred by instructing the jury that attempted simple battery was a lesser included offense of attempted sexual battery.
3. The Trial Court erred in allowing the State to amend the bill of information to include the phrase "or instrumentality" after the jury had been selected and sworn in, because such a change was not a procedural change, but was rather substantive.
4. The trial court['s] effort to determine whether Terry Goodeaux's waiver of the conflict of interest between his legal team and their firm's previous representation of an adverse witness did not follow the necessary procedures to ensure that Terry Goodeaux's waiver was knowing and intelligent.
5. The trial court erred by overruling a hearsay objection to Tiffany White's testimony regarding statements her daughters made to her, out of court, when they were being offered for the truth of their assertions.

         We find there is merit to Defendant's assignment of error number two in that attempted simple battery is not a crime under Louisiana law. Accordingly, the conviction for attempted simple battery should be reversed and the sentence imposed on the conviction vacated. However, Defendant failed to show merit with the remaining assignments of error. Accordingly, this court should affirm the two convictions and sentences for sexual battery.

         FACTS

         At trial, the following testimony was submitted to the jury:

         Two of the victims were twin sisters, K.W. and C.W., whose birthdates are October 14, 2005. The third victim was M.V., whose birthdate is April 10, 2006.[1]

         Deputy McKee, a patrol officer with the Calcasieu Parish Sheriffs Office, responded on August 7, 2013, to a complaint that two young girls had been inappropriately touched by a neighbor. He went to a trailer park located in South Lake Charles and spoke with Tiffany White, the mother of two of the victims. The deputy spoke with Defendant, who lived a few trailers away from the victims' trailer, and later with Willis Comeaux, who witnessed the alleged acts of inappropriate touching of two of the victims.

         Cinnamon Salvador, a detective with the Calcasieu Parish Sheriffs Office in the sex crimes and child abuse unit, testified that she spoke with C.W. and K.W. On August 7, 2013. She stated Defendant agreed to be transported to headquarters, and he gave a videotaped statement. Mr. Comeaux was also transported to headquarters and gave a videotaped statement. Detective Salvador stated she scheduled interviews for the victims with the Child Advocacy Center. The interviews took place on August 15, 2013. While the detective was not physically present during the interviews, she observed the interviews via video telecast. She stated that the victims' statements to the interviewer were consistent with the statements they made to her on the day of the offense. The detective stated that she also learned from the victims' mother that there was another possible victim, M.V. After speaking with M.V.'s mother, the detective scheduled another interview with the Child Advocacy Center. M.V.'s grandparents lived at the trailer park, and it was outside the grandparents' trailer where the alleged offenses took place.

         Mr. Comeaux testified he was home the day of the incident. He lived with his girlfriend in a trailer next to M.V.'s grandparents' trailer. He stated he was in the bathroom when he happened to look out the window and saw Defendant sitting in a chair, a little behind the grandparents' trailer, talking to the twins. Mr. Comeaux said the girls began crawling on their hands and knees in front of Defendant. As they crawled past Defendant, he reached down and touched them between their legs, over their clothing. He said Defendant touched one of the victims twice and the other once. Mr. Comeaux demonstrated on a doll supplied by the State where Defendant touched the girls. He described the touch as "rubbing." Mr. Comeaux stated he got so upset he started out to confront Defendant, but his girlfriend stopped him. After he cooled down a little, he drove to the victims' parents' trailer and told their stepdad, Ennis Peterman, about what he had seen Defendant do to the girls. Mr. Comeaux stated that later the same day he gave a statement to the police.

         Ms. White testified that she accompanied her daughters to the Child Advocacy Center and viewed their statements with Detective Salvador. She asserted that they had never made any allegations of inappropriate touching before. Both Ms. White and Mr. Peterman testified that the girls showed them where Defendant touched them. C.W. said Defendant touched her on her "butt, " and K.W. said he touched her on her "butt" and "vagina."

         Both of the victims testified. They were nine years old at the time of trial. K.W. used the doll to show the jury where Defendant touched her. She described the locations of the touching as the "front and in the back." She stated the back was her "butt." When asked if it was a good or bad touching, she responded "bad." C. W., using the doll, pointed to between the doll's legs and to the back of the doll, stating that Defendant touched her in the "front" and "butt." She, too, described the touching as "bad."

         Finally, M. V. testified. She was nine years old at the time of trial. She remembered visiting with her grandparents when they lived in the trailer park. She stated she used to play with K.W. and C.W. However, while she stated she remembered Defendant, she could not point him out in the courtroom. She testified that Defendant tried to touch her in the front part of her "wrong spot, " but she ran away.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record.

         For each of Defendant's convictions of sexual battery, the court sentenced him two twenty-five years with the Louisiana Department of Corrections to run concurrently. At least twenty-five years of each of Defendant's sentences were required to be imposed without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:43.1. Thus, the trial court's failure to impose each of the sentences without the benefit of parole renders them illegally lenient. However, this court will not consider an illegally lenient sentence unless it is raised as error. State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931.

         ASSIGNMENT OF ERROR NUMBER ONE

         Defendant argues that the evidence was insufficient to sustain the two convictions of sexual battery. Although, he argues the evidence was sufficient to prove beyond a reasonable doubt that he committed the offense of simple battery.

         In State v. F.B.A., 07-1526, pp. 1-2 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, 1009, writ denied, 08-1464 (La. 3/27/09), 5 So.3d 138 (alteration in original), this court discussed sufficiency of the evidence, as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore, the testimony of a single witness is sufficient to support a conviction "[i]n the absence of internal contradiction or irreconcilable conflicts with physical evidence." State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936. The trier of fact may accept or reject the testimony of any witness, and the determination of the credibility of that witness, in whole or in part, is left to its sound discretion and "will not be re-weighed on appeal." Id. at 936.

         At the time of the offense, sexual battery was defined, in pertinent part, as "the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]" La.R.S. 14:43.1(A). Defendant argues the victims' descriptions of where he touched them were too vague to prove that he touched their anus or genitals. He further points to inconsistent testimony as to who was touched where and how they were touched.

         Defendant argues that the State used an anatomically incorrect doll as demonstratives and that the State did not "'clarify the record' by saying the girls were pointing to the anus or genital of the doll, for the record." In a footnote, Defendant argues: "The defense [sic] failure to object and ask for clarification can hardly be an error on the defense who could only benefit from the State's failed effort to establish facts necessary for the record to later be reviewed by this Court."

         Defendant is correct in that the State did not specifically note for the record that the area the victims at trial indicated they were touched was the "anus" or the "vagina." The victims referred only to the "front, " "back, " and "butt" and stated that the touching was "bad." While this court cannot see where the victims pointed, the jury had the benefit of seeing where they indicated they were touched using the doll. Defendant objected at trial because the doll was not anatomically correct. However, it is not necessary for there to be a vagina on the doll for the jury to recognize that between the doll's legs was, in this case, the victims' genitals and that the anus was located in the "butt" area.

         Mr. Comeaux, who saw the interaction between Defendant and the girls, testified that Defendant touched them on the genitals and described the touch as "rubbing." He further demonstrated for the jury where the victims were touched using the doll.

         Defendant also suggests that the inconsistencies in the twins', their parents', and Mr. Comeaux's testimonies regarding who was touched where, were indicative of the State's failure to establish all the elements of sexual battery. Defendant argues that he was guilty only of simple battery. Louisiana Revised Statutes 14:33, in pertinent part, defines battery as "the intentional use of force or violence upon the person of another[.]" Simple battery is defined as a "battery committed without the consent of the victim." La.R.S. 14:35. While touching of the genitals or the anus are elements of the offense of sexual battery, the jury heard all the inconsistencies of how many times one or the other was touched and where. The jury, who are the finders of fact, was able to evaluate the inconsistencies and obviously believed the witnesses regardless of the inconsistencies. We find no internal contradiction established by the inconsistencies Defendant complains of; accordingly, we see no reason to upset the jury's credibility determinations. As noted above, the testimony of a single witness is sufficient to support a conviction. In this case, there were two witnesses, the victims, as well as an eyewitness to the offenses. The State met its burden of proof beyond a reasonable doubt.

         There is no merit to this assignment of error.

         ASSIGNMENT OF ERROR NUMBER TWO

         Defendant argues that the trial court erred when it instructed the jury that attempted simple battery was a lesser included offense to sexual battery. Defendant argues that attempted simple battery is a non-crime, and because the jury returned an invalid conviction, the conviction should be dismissed. He argues:

In State v. Trackling, the Louisiana Supreme Court proclaimed the crime of attempted simple battery is "not [a] separate, cognizable offense[]" under Louisiana Law because attempting to commit a simple battery is already recognized under Louisiana Law as an "assault, " pursuant to La.R.S. § 14:38. 04-3222 (La. 01/19/06), 921 So.2d 79, 84. Therefore, even though simple battery may be a lesser included offense to sexual battery, attempted simple battery is not a lesser included offense to attempted sexual battery.
Because an attempted battery already has a "companion offense, " the Courts cannot use the general provisions of La.C.Cr.P. art. 815 to allow a jury to find a defendant guilty of attempted simple battery.

         Also citing State v. Trackling, 04-3222 (La. 1/19/06), 921 So.2d 79, the State concedes there is no such crime as attempted simple battery and agrees the conviction was erroneous. Therefore, we reverse the conviction of attempted simple battery and vacate the sentence imposed.

         ASSIGNMENT OF ERROR NO 3

         As noted above, the sexual battery statute, at the time of the offense, in pertinent part, read that sexual battery was "the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]" La.R.S. 14:43.1(A). However, the State left out the phrase, "any instrumentality or" in the original indictment. After the commencement of trial, before any witnesses testified, the State moved to amend the bill to include the above phrase. Defendant objected, stating that the addition was not just a technical change to the bill but a substantive change. The trial court allowed the amendment and the additional wording was added to the bill.

         At the time of the offense, La.Code Crim.P. art. 487, Defective indictment; amendment, provided, in pertinent part:

A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

         In State v. Simon, 10-1111 (La.App. 3 Cir. 4/13/11), 62 So.3d 318, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922, the defendant objected to an amendment of the indictment when the State moved to add the victim's age to the indictment. The defendant argued the change was substantive rather than form. In Simon, 62 So.3d at 325 (alterations in original) this court cited State v. Johnson, 93-394, p. 3 (La. 6/3/94), 637 So.2d 1033, 1034-35, as follows:

La. Const. 1974, Art. I, § 13 provides that "[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him." This requirement protects the accused's right to prepare a defense and exercise fully his rights of confrontation and cross-examination. State v. Germain, 433 So.2d 110 (La.1983). The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. State v. Marcal, 388 So.2d 656 (La.1980); State v. Meunier, 354 So.2d 535 (La.1978). Accordingly, the state may not substantively amend a bill of information to charge a new offense once trial has begun. La.C.Cr.P. art. 487; Cf., State v. Roberts, 319 So.2d 317, 320 (La.1975), rev'd on other grounds, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), on remand, 340 So.2d 263; State v. Bluain, 315 So.2d 749 (La.1975)[.]

         In brief, Defendant argues that the State alleged and agreed that he never used any part of his body to touch the victims. Defendant argued [T]he only way the state could have satisfied its burden of proof in this case was through its effort to prove [he] used an 'instrumentality' to commit sexual battery." Therefore, the "instrumentality" was the girls' clothing. Thus, Defendant argues the amendment to allow the additional language prejudiced him, "making it a per se 'substantive' amendment, not a procedural amendment."

         To support his argument that the amendment was substantive, Defendant states that in 2015, the legislature amended La.R.S. 14:43.1, to add the phrase "directly or through clothing." 2015 La. Acts No. 256 § 1. He goes on to argue that "[p]rior to that change, touching through the clothing was not express[ed] in the statute as a means to accomplish the crime." Defendant therefore argues the trial court erred when it did not order a mistrial. However, in State v. Bouton, 615 So.2d 23, 25-26 (La.App. 3 Cir. 1993), wherein the defendant, who was ...


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