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State v. Cole

Court of Appeals of Louisiana, First Circuit

September 27, 2019


          On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 586690 Honorable Scott Gardner, Judge Presiding

          Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, LA Attorneys for Appellee, State of Louisiana

          Samuel H. Winston New Orleans, LA James E. Boren Baton Rouge, LA Attorneys for Defendant -Appellant, James Matthew Cole


          HIGGINBOTHAM, J.

         The defendant, James Matthew Cole, was charged by bill of information with sexual battery (victim under the age of thirteen years) (count 1), a violation of La. R.S. 14:43.1(C)(2); molestation of a juvenile (incidents of molestation recur during a period of more than one year) (count 2), a violation of La. R.S. 14:81.2(C); and second degree rape (count 3), a violation of La. R.S. 14:42.1. The defendant pled not guilty and, following a jury trial, was found guilty as charged on all counts. The defendant filed a motion for postverdict judgment of acquittal, which was denied. For the sexual battery conviction, the defendant was sentenced to ninety-nine years imprisonment at hard labor, with twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. For the molestation of a juvenile conviction, the defendant was sentenced to forty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For the second degree rape conviction, the defendant was sentenced to forty years imprisonment at hard labor, with two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant filed a motion to reconsider sentences, which was denied. The defendant now appeals, designating five assignments of error.


         The victim, K.D., [1] moved with her father to Texas when she was about six years old. At that time, K.D.'s paternal grandmother, Judy, lived in a mobile home with her boyfriend, the defendant, in Lacombe, St. Tammany Parish. K.D. frequently visited her grandmother and the defendant and spent summers at their house. When K.D. was about eight years old, she and her father moved in with her grandmother and the defendant. About a year later, when K.D. was in the fourth grade, she and her father moved back to Texas. Then, in the summer before she went into the sixth grade, K.D. moved back in with her grandmother and the defendant. A couple of years later, in 2015, K.D. moved back to Texas to live with her mother, but that summer went back to live with her grandmother and the defendant. In November 2016, when K.D. was fifteen years old, she again moved back to Texas to live with her mother and revealed to her mother that the defendant had been sexually abusing her for years. In December 2016, K.D.'s mother contacted the police. A few days later, K.D. was taken to the Dallas Children's Advocacy Center (CAC) and interviewed about the defendant's sexual abuse of her. The police in Texas contacted and referred the case to the St. Tammany Parish Sheriff's Office.

         At trial, K.D. testified about the various incidents that occurred over the years when she was visiting or living in Louisiana with her grandmother and the defendant. When K.D. was eight years old, she and the defendant were "roughhousing" and she was lying on the defendant's stomach when he began rubbing her "butt." When she was nine or ten years old, she was in a swimming pool sitting on the defendant's lap, and he rubbed her "butt" and vagina. When K.D. was eleven or twelve years old, the defendant came into her bedroom when she was in her bed and rubbed her vagina, chest, and "butt." Before K.D. started the seventh grade, the defendant touched her almost every night with different parts of his body. He "would push really hard" on her vagina, causing her pain throughout the day.

         In August 2015, according to K.D., the defendant made a "deal" with her. The defendant agreed not to touch her anymore if she agreed to let him do whatever he wanted to her on the first of every month. On September 1, 2015, when she was in the seventh grade, the defendant went into K.D.'s bedroom and reminded her of their deal. K.D. tried to get away, but the defendant pinned her down. The defendant took off K.D.'s shirt, pants, and underwear. He performed oral sex on her, and then vaginally raped her. He then turned her over and anally raped her. Later on other occasions, the defendant anally raped her. During each of these incidents of rape, K.D. screamed, kicked, cried and pleaded with the defendant to stop, to no avail.

         The defendant did not testify at trial.


         In his first assignment of error, the defendant argues that the trial court erred in denying his motion for a continuance of trial when the State, on the morning of trial, amended the bill of information on count 1, which expanded the date of the alleged offense by three years.

         On the first day of trial, prior to voir dire, the State amended the bill of information regarding count 1, sexual battery where the victim was under the age of thirteen. The bill initially alleged the dates of the offense were on or between June 1, 2013 and June 29, 2014. The State amended the starting date to June 30, 2010. Defense counsel objected, arguing that adding these years to the time of the alleged offense would now require him to have to defend three years that he did not anticipate that he would have to defend against. Finding no showing of specific prejudice, the trial court denied defense counsel's implied motion to continue.

         The defendant argues in brief that there was significant surprise and prejudice to him. According to the defendant, defense counsel was "completely caught off guard" by the amendment to count 1. The defendant suggests that the prejudice to him "should have been clear and apparent" since the trial preparation required for defense against the sex crime allegations of a nine-year-old is completely different from that required for sex crime allegations of a twelve-year-old.

         Louisiana Code of Criminal Procedure article 707 provides:

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

         An exception to the requirement that motions to continue be in writing exists where the circumstances that allegedly made the continuance necessary arose unexpectedly so that defense counsel did not have an opportunity to prepare a written motion. State v. Parsley, 369 So.2d 1292, 1294 n.l (La. 1979). The purpose of a continuance is to prevent prejudicial surprise to the defendant. See State v. Davis, 385 So.2d 193, 197 (La. 1980). The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229; See La. Code Crim. P. art. 712. Whether refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not grounds for reversal absent a showing of specific prejudice. State v. Lane, 2015- 0064 (La.App. 1st Cir. 11/9/15), 2015 WL 6951423, *6 (unpublished), writ denied, 2015-2248 (La. 3/24/16), 190 So.3d 1190.

         When a bill of information is amended, a defendant may be entitled to a continuance. Louisiana Code of Criminal Procedure article 489 provides:

If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.

         The defendant has the burden to establish that an amendment to a bill of information has prejudiced his defense so as to necessitate a continuance. See State v. Ferguson, 2015-0427 (La.App. 1st Cir. 9/18/15), 181 So.3d 120, 141, writ denied, 2015-1919 (La. 11/18/16), 210 So.3d 282. It is well settled in Louisiana jurisprudence that the State is not required to present evidence proving the date of the offense when it is not an essential element of the crime. State v. Vidrine, 2008-1059 (La.App. 3rd Cir. 4/29/09), 9 So.3d 1095, 1103, writ denied, 2009-1179 (La. 2/26/10), 28 So.3d 268. See State v. Roth, 52, 359 (La.App. 2d Cir. 11/14/18), 260 So.3d 1230, 1240, writ denied, 2018-2059 (La. 6/17/19), 273 So.3d 1210 (frequently the State alleges a range of time based upon a traumatized victim's memory of when the act or acts of molestation occurred).

         We see no reason to disturb the trial court's denial of the motion for a continuance. Under the original dates of the count 1 offense (June 1, 2013 to June 29, 2014), K.D. was eleven and twelve years old. That is, the defendant had always been on notice (at least sixteen months prior to trial) that the sexual battery charge against him was for a victim who was under thirteen years old. We do not find that the State's change in its charge of sexual battery of an eleven-year-old victim to sexual battery of a nine or ten-year-old victim was a prejudicial substantive change that would affect the merits of the defendant's defense. See State v. Robinson, 2011-0012 (La.App. 5th Cir. 12/29/11), 87 So.3d 881, 907-08, writ denied, 2012-0279 (La. 6/15/12), 90 So.3d 1059.

         Based on the foregoing, the defendant has failed to show prejudice by the State's amendment to the bill of information. The State provided open-file discovery and supplied defense counsel with all available information concerning dates. There was no evidence that defense strategy would have been altered by earlier notice that one of the alleged crimes occurred before the time frame referenced in the bill of information. See State v. Creel, 540 So.2d 511, 513 (La.App. 1 st Cir.), writ denied, 546 So.2d 169 (La. 1989). Accordingly, the trial court did not abuse its discretion in denying the motion for continuance.

         This assignment of error is without merit.


         In his second assignment of error, the defendant argues that he did not receive a fair trial because of the evidence against him that was allowed under La. Code Evid. art. 412.2.

         Prior to trial, the State filed notice and supplemental notice of its intent to introduce evidence of other crimes, bad acts, or wrongs, pursuant to Article 412.2. The trial court ruled that such evidence was admissible at trial. At trial, other than the victim in the instant matter, three witnesses, C.C, A.R., and L.R., testified against the defendant regarding other crimes evidence.

         C.C. testified that the defendant was her uncle. According to C.C, when she was a child (about thirty-five years ago), she would visit the defendant at his home. While playing, the defendant would grope her in the wrong place "too many times, " including grabbing her between the legs. On one occasion, the defendant was doing lawn work at a house with a swimming pool. The defendant took C.C. with him so she could swim. When she came out of the bathroom, they went into a bedroom and sat on the bed. The defendant began grabbing C.C.'s breast. She pushed the defendant away and ran out the door. A.R. testified that the defendant was her uncle. When she was nine years old (about thirty years ago), she was swimming at a house where the defendant worked. After swimming, she went in the house, and the defendant touched her vagina. L.R., who was forty-five years old when she testified, stated that as a child, she was at the defendant's (her uncle) house quite often. When she slept over there, the defendant would touch her breasts and vagina. On one occasion, according to L.R., the defendant rubbed his penis on her vagina. L.R. indicated that the sexual abuse by the defendant probably lasted a few years. The State also introduced into evidence a record from the 22nd Judicial District, wherein the defendant pled guilty in 1990 to indecent behavior with a juvenile.

         The defendant asserts in brief that the witnesses' testimony was unduly cumulative and that such testimony was the most prejudicial method the State had to introduce this evidence under Article 412.2. Further, the defendant contends that because the allegation by one of the witnesses did not result in formal charges, that witness should not have been allowed to testify at trial. The defendant concedes in brief that the law in this State "likely forecloses this argument, " but notes he is preserving this issue for review "should the law change on this issue."

         We note initially that it is not necessary, for purposes of Article 412.2 testimony, for the defendant to have been charged, prosecuted, or convicted of the "other acts" described. See State v. Layton, 2014-1910 (La. 3/17/15), 168 So.3d 358, 362; State v. Mischler, 2018-1352 (La.App. 1st Cir. 5/31/19), ___ So.3d ___, 2019 WL 2334219, * 17-18. Article 412.2 was a legislative response to earlier decisions from the Louisiana Supreme Court refusing to recognize a "lustful disposition" exception to the prohibition of other crimes evidence under La. Code Evid. art. 404. State v. Buckenberger, 2007-1422 (La.App. 1st Cir. 2/8/08), 984 So.2d 751, 757, writ denied, 2008-0877 (La. 11/21/08), 996 So.2d 1104. Article 412.2 provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence ...

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