State of Louisiana v. Robert Coffey

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,729-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

ROBERT COFFEY Appellant

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 358,749

Honorable Donald E. Hathaway, Jr., Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Chad M. Ikerd

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

JASON W. WALTMAN
VICTORIA T. WASHINGTON
ALEXANDRA L. PORUBSKY
Assistant District Attorneys

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Before PITMAN, HUNTER, and MARCOTTE, JJ.

PITMAN, J.

A unanimous jury convicted Defendant Robert Coffey of molestation

of a juvenile. The trial court sentenced him to 15 years at hard labor.

Defendant appeals his conviction on the basis of insufficiency of the

evidence proving the acts alleged were lewd and lascivious and that he acted

in a position of control or supervision over the victim. For the following

reasons, we affirm his conviction and sentence.

FACTS

In 2018, Defendant was charged in Caddo Parish with molestation of

a juvenile, a violation of La. R.S. 14:81.2, for crimes that allegedly occurred

between January 1986 and December 1987. The victim was his niece, J.N.,

who was approximately seven to eight years old when the acts took place.

A jury trial was held June 16 and 17, 2021.

C.D.K., who is also the Defendant’s niece, is now 36 years old. She

stated that when she was very young, she and her mother visited him and his

wife. He assaulted her during that visit by touching her vagina under her

underwear. She did not report the incident. She testified that there were

three other incidents that occurred in Shreveport, two at his home and one at

his office, and other assaults that occurred in Texas. She eventually told her

parents, who insisted she report Defendant to the police. In March 1996,

Defendant was charged in Caddo Parish with contributing to the delinquency

of a minor by intentionally enticing, aiding, soliciting and permitting her to

perform a sexually immoral act. Defendant pled guilty to this crime.

B.A. testified that she was born in March 1976. She, her mother,

sister and great aunt lived in Benton, Louisiana, in 1985. She stated that she

met Defendant at church in the spring of that year when she was eight years

old. Her mother and Defendant began dating and married in November

1985. Her mother, Defendant and she eventually moved to Shreveport on

Fairfield Avenue. She testified that from the very first day they lived in the

house on Fairfield, Defendant began abusing her. The first night Defendant

came into her bedroom and pulled down her underwear. She testified that

she ran to tell her mother, but Defendant convinced her mother that she was

lying. B.A. stated that, thereafter, she felt he was in “total control.” She

stated that Defendant would come into her room in the middle of the night,

undress her and touch her genitals with his hands, tongue and fingers. He

would expose his genitals by standing naked beside her bed and would

watch her taking showers. This occurred from the time she was in fourth

grade until she was 16, when she began to “fight back.” In 1993, Defendant

left the family home with his secretary, and she then told her mother what

had been happening all those years. Her mother took her to the police

station to make a report, but she said they were both traumatized and she did

not want to testify. For these reasons, no charges were filed against

Defendant.

J.F.F. testified that she was 11 years old when Defendant began dating

her mother. Defendant and her mother lived together in Shreveport in 1994

and then she, her mother and Defendant moved to Durango, Colorado,

where they lived for four years. She stated that Defendant raped and

molested her repeatedly until she was almost 18 years old. She did not tell

anyone about this until she was a freshman in college and was visiting an

aunt in Houston. Defendant was present at that visit and attempted to come

into her bedroom and touch her. She testified that she pushed him away and

told him no and that her aunt and uncle heard the conversation through a
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baby monitor and confronted her about it. They convinced her to go to the

authorities in Colorado, and Defendant was charged with sexual assault of a

child. Although J.F.F. was not clear on the type of legal proceeding she

attended, it was suggested by the attorney that perhaps she appeared at a

sentencing hearing. Defendant pled guilty in 2000 and was sentenced to

20 years in prison in Colorado. A copy of the judgment of conviction and

sentence was placed in evidence.

J.N., the victim in this case, testified that she was born in March 1980.

She stated that she was seven years old and living in Shreveport when she

first met Defendant, who was married to her aunt, B.A.’s mother. When

J.N. was about eight years old, she went to their house and Defendant asked

her to come into a walk-in closet upstairs while the rest of the family was

downstairs. She entered the closet and he stood behind her talking about the

pretty clothes, then moved her hair to the side and started to rub and kiss her

neck. She stated she froze and did not know what to do. She does not

remember why, but said the incident ended quickly, perhaps because

someone came upstairs.

J.N. also testified that she had gone to Defendant’s house to spend the

night with B.A. because her own parents were out of town. She stated that

she shared a bed with her cousin and was lying on her stomach. Defendant

came in and started rubbing her back, the side of her breasts and lower

behind and was touching her under her pajamas. He tried to turn her over,

but she pretended to sleep and was resisting being turned. Her aunt called

his name, and he left the room.

J.N. stated that she told her parents what had happened and they were

very upset. Her parents called B.A.’s mother and grandparents to tell them;
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and, although they did not report the incidents to the police, they kept her

away from Defendant. Her family moved to Texas when she was 12 years

old.

Det. Skylar Van Zandt of the Shreveport Police Department works as

a supervisor overseeing the crime scene investigations unit. He is trained in

fingerprint identification and is a certified latent print examiner. He testified

that he took the right-hand fingerprints of Defendant on the day of trial,

marking the card with his name, date of birth and a description. He signed

and dated the card, which was later introduced as State Exhibit 4.

Det. Van Zandt compared the prints on State Exhibit 4 with prints

from State Exhibit 1, which was the bill of information in the case involving

the molestation of C.D.K., and State Exhibit 3, the fingerprints from the case

in Colorado pertaining to J.F.F. He stated that he was able to establish that

all of the fingerprints matched those of Defendant.

On June 17, 2021, the jury returned a unanimous verdict finding

Defendant guilty of molestation of a juvenile where the offender has control

or supervision over the juvenile. On June 28, 2021, Defendant filed a

motion for post-verdict judgment of acquittal and a motion for new trial,

both of which were denied the next day. On July 28, 2021, at the sentencing

hearing, the trial court referenced the motions and stated that they had been

denied as being untimely filed.

The trial court noted that at the time the offenses were committed, the

law provided punishment by a fine of not more than $10,000 or

imprisonment with or without hard labor for not less than one nor more than

15 years, or both. After considering La. C. Cr. P. art. 894.1(A) and (B), and

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finding aggravating circumstances, the court sentenced Defendant to pay a

fine of $2,500 and to serve 15 years at hard labor.

Defendant appeals his conviction, claiming there is insufficient

evidence to prove him guilty of the molestation of J.N.

DISCUSSION

Defendant argues that the evidence was insufficient to convict him of

the crime of molestation of a juvenile because the state failed to prove two

elements essential to the crime, i.e., his actions were “lewd or lascivious”

and he was able to act by virtue of his position of control or supervision of

J.N.

Defendant contends that only the testimony of J.N. should be

considered in determining whether he is guilty of the crime. He argues that

the evidence presented in the first alleged incident, in the walk-in closet, was

insufficient to prove that he intended anything other than to kiss J.N.’s neck.

He asserts that the family was downstairs and that there was no evidence that

he physically prevented her from leaving, forcibly held her down or told her

not to tell anyone he kissed her neck.

Defendant further argues that the evidence of the incident in B.A.’s

bedroom was also insufficient in that although J.N. testified that he touched

her under her pajamas, she did not describe if that meant the pajama top or

the bottom, if the bottom was shorts or covered her entire leg. He states that

there was no testimony of the length of time it took for the incident to take

place, but it was implied that it was a relatively short time, which ended

when his wife called him from outside the room. He asserts that there is no

proof his actions were lewd or lascivious as defined by the law.

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Defendant contends that a crucial element of the crime of molestation

of a juvenile is that it occurs by “use of control or supervision.” He argues

that La. R.S. 14:81.2 differentiates between molestation of a juvenile, where

the offender has control or supervision over the juvenile, and simple

molestation of a juvenile, as indicated by the different sentencing provisions

in sections (B) and (C) of the statute of 1986. He claims that if the acts were

committed without control or supervision, in order to qualify as molestation

of a juvenile, the perpetrator would have to use “[F]orce, violence, duress,

menace, psychological intimidation [or] threat of great bodily harm.”

Defendant claims there was no evidence offered to show that he used force

or intimidation, duress or menace, psychological intimidation, or threat of

great bodily harm. Further, there was insufficient evidence to show he had

any control over J.N. simply because she was staying the night at his house.

For these reasons, he claims the court should reverse his conviction and

enter an acquittal in the record.

The state argues that Defendant’s arguments are without merit and

that the record demonstrates he engaged in lewd and lascivious acts with

J.N. while she was under his supervision and control. It asserts that it

proved every element of the crime of molestation of a juvenile and that

Defendant’s actions of stroking J.N.’s buttocks, sides of her breasts and her

back underneath her clothes while she pretended to sleep constitute lewd and

lascivious acts. Further, J.N. was staying the night at her aunt’s house

because her parents were out of town. Thus, it claims that Defendant and his

wife were in a position of control and supervision over her while she stayed

in their home; and Defendant took advantage of her when the opportunity

arose. It contends that the amount of time he spent with her is irrelevant and
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that what is relevant is that he was the authority figure in the home when a

young child came to stay the night. For the foregoing reasons, it argues that

it proved every element of the crime of molestation of a juvenile and that

Defendant’s conviction should be affirmed.

The standard of appellate review for a sufficiency of the evidence

claim 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 v.

Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,

124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004). This standard, now legislatively

embodied in La. C. Cr. P. art. 821, does not provide the appellate court with

a vehicle to substitute its own appreciation of the evidence for that of the

fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517.

In the absence of internal contradiction or irreconcilable conflict with

physical evidence, one witness’s testimony, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Wilson, 50,418

(La. App. 2 Cir. 4/6/16), 189 So. 3d 513, writ denied, 16-0793 (La. 4/13/17),

218 So. 3d 629. Likewise, the sole testimony of a sexual assault victim is

sufficient to support a requisite factual finding. Id. Such testimony alone is

sufficient even where the state does not introduce medical, scientific or

physical evidence to prove the commission of the offense by the defendant.

Id.

In 1986, the time of commission of the crime, La. R.S. 14:81.2(A) and

(C) stated as follows:

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A. Molestation of a juvenile is the commission by anyone over
the age of seventeen of any lewd or lascivious act upon the
person or in the presence of any child under the age of
seventeen, where there is an age difference of greater than
two years between the two persons, with the intention of
arousing or gratifying the sexual desires of either person, by
the use of force, violence, duress, menace, psychological
intimidation, threat of great bodily harm, or by the use of
influence by virtue of a position of control or supervision
over the juvenile. Lack of knowledge of the juvenile’s age
shall not be a defense.

***

C. Whoever commits the crime of molestation of a juvenile
when the offender has control or supervision over the
juvenile shall be fined not more than ten thousand dollars, or
imprisoned, with or without hard labor, for not less than one
nor more than fifteen years, or both.

In order to convict an accused of molestation of a juvenile, the state

must prove beyond a reasonable doubt that defendant (1) was over the age of

17 and more than two years older than the victim; (2) committed a lewd or

lascivious act upon the person or in the presence of any child under the age

of 17; (3) had the specific intent to arouse or gratify the sexual desires of

himself or the victim; and (4) committed the act by use of force, duress,

psychological intimidation or by the use of influence by virtue of a position

of control or supervision over the juvenile. State v. Wilson, supra. A lewd

or lascivious act is one which tends to excite lust and to deprave morals with

respect to sexual relations and which is indecent. State v. Redfearn, 44,709

(La. App. 2 Cir. 9/23/09), 22 So. 3d 1078, writ denied, 09-2206 (La. 4/9/10),

31 So. 3d 381. In the instant case, the age of Defendant and the age

difference between Defendant and J.N. are not at issue.

The harsher penalty provision for molestation of a juvenile where the

offender has control or supervision over a juvenile exists because an

offender who has control or supervision over a juvenile is in a position of
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trust. State v. Lewis, 52,367 (La. App. 2 Cir. 11/14/18), 260 So. 3d 1220.

The meaning of the phrase “influence by virtue of a position of control or

supervision” in La. R.S. 14:81.2 is not restricted in its application to persons

to whom the parent entrusts the child for care, usually for a fee, such as

babysitters, child care workers or teachers. Id. Rather, the statute permits

finding evidence of supervision or control by noncustodial parents, relatives,

friends and neighbors of young victims. Id. Living in the home with the

victim, acting as a father figure to the victim and exercising emotional

control over the victim have been found to be sufficient to support a finding

of supervision or control. Id. Louisiana courts consider the following

factors when making a determination as to whether a defendant used

influence by virtue of his position of supervision or control over the victim:

(1) the amount of time the defendant spent alone with the victim; (2) the

nature of the relationship between the victim and the defendant; (3) the

defendant’s age; and (4) the defendant’s authority to discipline. Id.

J.N. testified that when she was seven or eight years old, Defendant

not only lured her into a walk-in closet and kissed the back of her neck but

also came into her bedroom while she was sleeping and began to rub the side

of her breasts and buttocks, under her pajamas, and then tried to turn her

over. He only stopped touching her when his wife called out to him. These

actions are lewd and lascivious and intended to excite lust in Defendant.

Such actions were certainly indecent and showed Defendant’s intent to

arouse himself by the use of influence by virtue of his position of control or

supervision over the juvenile. He was the adult in charge at the home in

which she was staying; and, as a young child, the only action she could take

in the situation was to resist his attempts to turn her over. Viewing the
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evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime of molestation of a

juvenile proven beyond a reasonable doubt.

The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant

Robert Coffey are affirmed.

AFFIRMED.

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