State v. Goodeaux

• Decision Date: 02 November 2017
• Docket Number: KA 17–441
• Citation: 231 So.3d 124
• Parties: STATE of Louisiana v. Terry James GOODEAUX -aka- Terry Goodeaux
• Court: Court of Appeal of Louisiana — District of US

231 So.3d 124

STATE of Louisiana

v.Terry James GOODEAUX -aka- Terry Goodeaux

KA 17–441

Court of Appeal of Louisiana, Third Circuit.

November 2, 2017

John Foster DeRosier, Fourteenth Judicial District Attorney, Carla Sue Sigler, Elizabeth Brooks Hollins, Fourteenth Judicial Assistant District Attorneys, 901 Lakeshore Drive, Ste. 800, Lake Charles, LA 70601, (337) 437–3400, COUNSEL FOR: State of Louisiana

Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806–2930, COUNSEL FOR DEFENDANT/APPELLANT: Terry James Goodeaux

Terry Goodeaux, Allen Correctional Center, 3751 Lauderdale Woodyard Rd., Kinder, La 70648

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

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 Sheriff's 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 Sheriff's 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 Ja

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