FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 22581-13 HONORABLE DAVID ALEXANDER RITCHIE,
Foster DeRosier Fourteenth Judicial District Attorney Carla
Sue Sigler Elizabeth Brooks Hollins Fourteenth Judicial
Assistant District Attorneys COUNSEL FOR: State of Louisiana
M. Ikerd Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Terry James Goodeaux
Goodeaux Allen Correctional Center
composed of John D. Saunders, Billy Howard Ezell, and Phyllis
M. Keaty, Judges.
HOWARD EZELL JUDGE
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
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
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.
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.
trial, the following testimony was submitted to the jury:
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.
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.
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
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.
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."
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."
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.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record.
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.
OF ERROR NUMBER ONE
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.
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
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
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.
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."
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.
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.
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.
is no merit to this assignment of error.
OF ERROR NUMBER TWO
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
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
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.
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.
OF ERROR NO 3
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.
time of the offense, La.Code Crim.P. art. 487,
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.
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
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
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 ...