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
L. Montgomery District Attorney Matthew Caplan Assistant
District Attorney Covington, LA Attorneys for Appellee, State
H. Winston New Orleans, LA James E. Boren Baton Rouge, LA
Attorneys for Defendant -Appellant, James Matthew Cole
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
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.
victim, K.D.,  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.
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.
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.
defendant did not testify at trial.
OF ERROR NO. 1
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.
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.
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.
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.
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.
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.
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).
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.
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.
assignment of error is without merit.
OF ERROR NO. 2
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.
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.
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.
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."
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
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
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 ...