State of Louisiana v. Tommy Cloud

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-877

STATE OF LOUISIANA

VERSUS

TOMMY CLOUD

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. 2003-1773
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

CONVICTION FOR INDECENT BEHAVIOR
REVERSED AND SENTENCE VACATED.

CONVICTIONS FOR MOLESTATION OF A
JUVENILE, SEXUAL BATTERY, AND ORAL
SEXUAL BATTERY AFFIRMED. SENTENCES
VACATED AND REMANDED TO TRIAL COURT.

Douglas L. Hebert, Jr.
District Attorney - 33rd Judicial District Court
P. O. Box 839
Oberlin, LA 70655
Telephone: (337) 639-2641
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457-2057
Telephone: (318) 572-5693
COUNSEL FOR:
Defendant/Appellant - Tommy Cloud

THIBODEAUX, Chief Judge.

The Defendant, Tommy Cloud, was charged by bill of indictment with

sexual battery in violation of La.R.S. 14:43.1, oral sexual battery in violation of

La.R.S. 14:43.3, molestation of a juvenile in violation of La.R.S. 14:81.2, and

indecent behavior with a juvenile in violation of La.R.S. 14:81. Pursuant to a plea

bargain, the Defendant pled guilty to sexual battery and oral sexual battery. The

remaining two charges were dismissed. The Defendant was sentenced to two

consecutive terms of nine years at hard labor, without benefit of probation, parole, or

suspension of sentence.

The Defendant appealed his conviction, claiming that his guilty plea was

not knowingly and intelligently made because the plea bargain contained an

impossible condition. The Defendant’s conviction was subsequently reversed, his

guilty plea and sentences were vacated, and the case was remanded to the trial court

for further proceedings. State v. Cloud, 04-838 (La.App. 3 Cir. 2/2/05), 893 So.2d

220.

Following remand to the trial court, a jury convicted the Defendant on

all four counts. Prior to sentencing, the Defendant was arraigned on a multiple

offender bill and pled not guilty. The trial court found the Defendant guilty of being

a multiple offender. After waiving sentencing delays, the Defendant was sentenced

to life at hard labor without benefit of parole, probation, or suspension of sentence.

Later, the trial court clarified that the Defendant was sentenced on all four charges

and ordered the Defendant’s life sentences to run concurrently. He appeals, primarily

on the basis of double jeopardy and excessiveness of the sentences.

LAW AND DISCUSSION

Double Jeopardy

The Defendant argues that his convictions for the previously dismissed

charges of molestation of a juvenile and indecent behavior of a juvenile violated his

constitutional right against double jeopardy and his procedural due process rights to

an appeal. The Defendant contends that sentencing in a plea bargain begins jeopardy

and the retrial of charges dismissed in the plea bargain are barred by double jeopardy.

As noted by this court in State v. Francois, 05-1385 (La.App. 3 Cir.

4/5/06), 926 So.2d 744,

The Fifth Amendment to the United States
Constitution and Article 1, § 15 of the Louisiana
Constitution of 1974 prohibit placing a person twice in
jeopardy of life or limb for the same offense. La.Code
Crim.P. art. 591. Double jeopardy protects an accused not
only from a second prosecution for the same offense but
also multiple punishments for the same criminal act. State
v. Murray, 00-1258 (La.9/18/01), 799 So.2d 453.

Further, the supreme court in State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d

122, 129 stated:

Inherent in the guarantee against double jeopardy are three
constitutional protections: 1) against a second prosecution
for the same offense after acquittal; 2) against a second
prosecution for the same offense after conviction; 3)
against multiple punishments for the same offense. North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2089, 23
L.Ed.2d 656 (1969) . . .

In opposition to the Defendant’s argument, the State maintains that

pursuant to La.Code Crim.P. art. 591, double jeopardy does not attach when a

defendant himself moves to set aside his conviction, citing State v. Smith, 406 So.2d

1314, 1315 (La.1981). Article 591states that, “No person shall be twice put in

jeopardy of life or liberty for the same offense, except, when on his own motion, a

new trial has been granted or judgment has been arrested, or where there has been

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a mistrial legally ordered under the provisions of Article 775 or ordered with the

express consent of the defendant.” (emphasis added).

The defendant’s initial guilty pleas and sentences were vacated.

Therefore, a valid sentence was not imposed in the first instance. La.Code Crim.P.

art. 592. “When a defendant pleads guilty, jeopardy begins when a valid sentence is

imposed.” Id. (Emphasis added). Consequently, this defendant was not placed in

double jeopardy by his subsequent trial on the previously filed charges and those that

had been previously dismissed, since jeopardy never attached in the first place. See

State v. Boudreaux, 402 So.2d 629 (La.1981) (finding that once a plea is vacated, the

situation reverts to the pre-plea stage). However, the fact that he received harsher

treatment, i.e., being charged with the previously dismissed crimes after he

successfully appealed his prior guilty pleas and received a longer sentence, requires

a determination as to whether he has suffered a deprivation of due process. Id. (citing

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969)).

The Pearce court explained the due process issue raised, as such:

Due process of law, then, requires that
vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the
sentence he receives after a new trial. And since the fear of
such vindictiveness may unconstitutionally deter a
defendant’s exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant be freed of apprehension of such retaliatory
motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725.

In Boudreaux, the supreme court held that “[t]here is no appearance of

retaliation when a defendant is placed in the same position as he was before he

accepted the plea bargain.” Boudreaux, 402 So.2d at 633 (citing U.S. v. Anderson,

514 F.2d 583 (7th Cir. 1975)). Therefore, “[w]hen the plea to conviction is vacated,

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the condition precedent to the Government’s agreement not to prosecute on the

greater offense no longer existed.” Boudreaux, 402 So.2d at 631. Rather, the

government is then free to prosecute the defendant without placing him twice in

jeopardy, otherwise the double jeopardy clause will operate to give the defendant

more than the “benefit of his bargain” and will ensure that the defendant will avoid

being placed in jeopardy even once under certain circumstances. Id. (citing

Anderson, 514 So.2d 583). Consequently, this approach seems to mean that, after the

setting aside of the earlier plea-verdict, a later trial on those charges that were

originally dismissed and which, as a result of the trial, now result in harsher

punishment, does not constitute double jeopardy. Id. Instead, this is a situation of

“continuing jeopardy that has application where criminal proceedings against an

accused have not run their full course.” Boudreaux, 402 So.2d at 632 (quoting Price

v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759 (1970)).

The two charges dismissed pursuant to the plea bargain in this case were

resurrected when the guilty plea was reversed and vacated by this court; thus, the

parties were in the same position as they were prior to acceptance of the plea bargain.

See State v. Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505 and State v.

Boudreaux, 402 So.2d 629. Accordingly, the trial and convictions on the dismissed

charges did not amount to double jeopardy.

Multiple Convictions for Same Offense

The Defendant argues that he was “overcharged,” violating his

constitutional protections against multiple punishments. The Defendant maintains

that the allegations are clearly limited to one transaction that occurred in a few

minutes.

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In the State’s opposition, a Jackson analysis is provided to show that

sufficient evidence was presented to find the Defendant guilty of all four charges.

However, the issue presented is not whether there was sufficient evidence to convict

the Defendant of the individual charges. Instead, the issue is whether the State used

the same evidence to prove sexual battery and oral sexual battery that it used to prove

molestation of a juvenile and indecent behavior with a juvenile resulting in double

jeopardy.

In State v. Barton, 02-163, pp. 17-18, (La.App. 5 Cir. 9/30/03), 857

So.2d 1189, 1201-02, writ denied, 03-3012 (La. 2/20/04), 866 So.2d 817, the court

summarized the two tests used by Louisiana courts use in examining violations of

double jeopardy as follows:

The “distinct fact” test, commonly referred to as the
Blockburger test, is taken from Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306
(1932) as follows:

The applicable rule is that where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one, is whether each
provision requires proof of an additional fact
which the other does not.

Accord, State v. Knowles, 392 So.2d 651, 654
(La.1980).

The second test is the “same evidence” test. In State
v. Steele, 387 So.2d 1175, 1177 (La.1980), the Louisiana
Supreme Court explained that test as follows:

If the evidence required to support a finding
of guilt of one crime would also have
supported conviction of the other, the two are
the same offense under a plea of double
jeopardy, and a defendant can be placed in
jeopardy for only one. The test depends on
the evidence necessary for conviction, not all
the evidence introduced at trial....

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The “same evidence” test is broader than
Blockburger, “the central idea being that one should not be
punished (or put in jeopardy) twice for the same course of
conduct.” State v. Steele, 387 So.2d at 1177. Although the
Louisiana Supreme Court has accepted both the
Blockburger test and the same evidence test, it has
principally relied on the “same evidence” test to evaluate
double jeopardy claims. State v. Miller, 571 So.2d 603,
606 (La.1990).

With regard to the charges of sexual battery and oral sexual battery, the

Defendant concedes that the State could have charged him with both offenses based

on State v. Burnett, 33739 (La.App. 2 Cir. 10/4/00), 768 So.2d 783, writ denied, 00-

3079 (La. 11/02/01), 800 So.2d 864. In Burnett, the court held that within a short

span of time, a person can commit the distinct crimes of sexual battery and oral sexual

battery by touching a child’s genitals and by engaging in oral sex on the child’s

genitals.

The Defendant, however, challenges the charges of molestation of a

juvenile and indecent behavior with a juvenile, arguing that the evidence required to

prove these charges is the same used by the State to prove sexual battery and oral

sexual battery. More specifically, the Defendant maintains that the evidence adduced

at trial that he forced the twelve-year-old victim onto his bed, fondled her and then

licked her genitalia is the same evidence the State used to prove molestation and

indecent behavior. The Defendant asserts that both offenses require proof of a lewd

and lascivious act on a minor child and contends that fondling or oral sex are lewd

and lascivious acts. Further, the Defendant argues that the force used to prove lack

of consent in proving sexual battery and oral sexual battery is the same that is

required in molestation.

The Defendant further maintains that indecent behavior with a juvenile

is a lesser and included offense of molestation of a juvenile, citing State v. Leblanc,

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506 So.2d 1197 (La.1987). See also State v. Busby, 94-1354 (La.App. 3 Cir. 4/5/95),

653 So.2d 140, writ denied, 95-1157 (La. 9/29/95), 660 So.2d 854. The Defendant

also maintains that the facts of this case are distinguishable from State v. Taylor, 95-

179 (La.App. 3 Cir. 10/04/95), 633 So.2d 336, wherein this court found that a

defendant could be convicted of both sexual battery and attempted indecent behavior

with a juvenile. In Taylor, the defendant was found guilty of sexual battery and

attempted indecent behavior with a juvenile. On appeal, this court concluded that the

evidence needed for conviction of sexual battery would not have supported a

conviction for attempted indecent behavior with a juvenile which requires evidence

of age; thus, the defendant’s convictions for sexual battery and attempted indecent

behavior with a juvenile did not subject him to double jeopardy.

Comparing the facts of Taylor to his case, the Defendant asserts that

there was no evidence of acts of indecent behavior. In Taylor, the defendant removed

his clothes and bathed with the child prior to the sexual battery. In this case, the

Defendant avers that the State never adduced any evidence of separate acts that would

constitute molestation or indecent behavior, but relied solely on the evidence of

fondling and oral sex to prove the offenses of molestation and indecent behavior with

a juvenile.

Sexual battery is defined in La.R.S. 14:43.1(A) as:

... the intentional engaging in any of the following
acts with another person, who is not the spouse of the
offender, where the offender acts without the consent of the
victim, or where the other person has not yet attained
fifteen years of age and is at least three years younger than
the offender:

(1) The touching of the anus or genitals of the victim
by the offender using any instrumentality or any part of the
body of the offender; or

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(2) The touching of the anus or genitals of the
offender by the victim using any instrumentality or any part
of the body of the victim.

Oral sexual battery is defined in La.R.S. 14:43.1(A) as:

... the intentional engaging in any of the following
acts with another person, who is not the spouse of the
offender when the other person has not yet attained fifteen
years of age and is at least three years younger than the
offender:

(1) The touching of the anus or genitals of the victim
by the offender using the mouth or tongue of the offender;
or

(2) The touching of the anus or genitals of the
offender by the victim using the mouth or tongue of the
victim...

Thus, the evidence necessary for a conviction of sexual battery and oral sexual battery

includes lack of consent, that the victim was not the spouse of the Defendant, proof

of the victim’s and Defendant’s ages, and that the victim’s genitals were touched by

the Defendant.

Molestation of a juvenile is defined in La.R.S. 14:81.2(A)
as:

... 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 . . .

Thus, the evidence necessary for a conviction of molestation of a juvenile is proof of

the victim’s and Defendant’s ages, a lewd or lascivious act, intent of arousal or

gratification and the use of force.

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First, molestation, like sexual battery and oral sexual battery, requires

evidence to prove the age of the Defendant and victim and the use of force to commit

the offenses. Also, at trial, the same evidence of age and force used to prove sexual

battery and oral sexual battery was the same used to prove molestation. Molestation,

however, does not require evidence that the Defendant touched the victim’s genitals.

The State need only to have submitted evidence that the Defendant committed a lewd

or lascivious act that is separate and apart from the touching of the victim’s genitals.

The Defendant maintains, however, that the evidence used to prove he touched the

victim’s genitals was the same evidence used to prove he performed a lewd and

lascivious act.

However, additional evidence was offered at trial which may be

considered under the definition of lewd and lascivious, but would not support a

conviction of sexual battery or oral sexual battery. As noted in State v. Rollins, 581

So.2d 379, 382 (La.App. 4 Cir. 1991), “A lewd or lascivious act is one which tends

to excite lust and to deprave the morals with respect to sexual relations and which is

obscene, indecent, and related to sexual impurity or incontinence carried on in a

wanton manner. State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216

La. 1072, 45 So.2d 627 (1950).” In this case, before touching her genitals with his

hand and tongue, the Defendant rubbed his body against the minor, kissed her lips

and put his tongue into her mouth.

In State v. Rideaux, 05-446 (La.App. 3 Cir. 11/2/05), 916 So.2d 488,

497, this court stated, “. . . a kiss is proscribed behavior under §14:81 when it is

repeated or accompanied by other acts that seem more likely to excite lust and to

deprave morals, generally genital contact.” We conclude that the State did not use

the same evidence to prove the offense of molestation of a juvenile and that the

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Defendant’s actions of rubbing and kissing the victim prior to touching her genitals

constituted lewd and lascivious acts.

Indecent behavior with a juvenile is defined by La.R.S. 14:81(A) as:

... 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 . . .

Although not listed in La.Code Crim.P. art 814 as a responsive verdict to molestation

of a juvenile, the jurisprudence clearly establishes that it is. Further, the same

evidence used to prove molestation was used to prove indecent behavior.

Accordingly, the charge and conviction for indecent behavior of a juvenile results in

double jeopardy, and the conviction is reversed and the charge is dismissed.

Excessive Sentence

The Defendant argues that his sentencing in excess of his original

sentences violates his procedural due process rights under the Fourteenth Amendment

and his constitutional right against excessive sentences. The Defendant maintains

that if the sentences are upheld, defendants with otherwise valid grounds for appeal

will not exercise their right of appeal in fear of being punished with an increased

sentence if they successfully appeal.

In support of his argument, the Defendant references this court to North

Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, wherein the United States Supreme

Court concluded that there would be a violation of the Fourteenth Amendment should

a trial court impose a heavier sentence on a re-convicted defendant in order to punish

him for having successfully appealed his original conviction. Accordingly, a

defendant cannot be given a more severe sentence unless objective reasons

10

concerning conduct occurring after the time of original sentencing affirmatively

appear.

In its opposition, the State maintains that the life sentence imposed was

proper under La.R.S. 15:529.1 regarding the Defendant’s conviction as a fourth

felony offender and denies it has committed any vindictive acts. Additionally, the

State asserts that although it used all four of the Defendant’s convictions on the

habitual offender bill, any one of the convictions alone would have sufficed as the

fourth felony offender conviction.

This issue of vindictiveness along with a similar set of facts was

addressed in State v. Boudreaux, 402 So.2d 629. In Boudreaux, the defendant was

originally charged with armed robbery. He entered a plea of guilty to the lesser and

included offense of simple robbery and was sentenced five years at hard labor. Later,

the defendant filed an application for a writ of habeas corpus, alleging that his guilty

plea should be set aside because he was not informed of his right to confront

witnesses against him and his right to compulsory process. The supreme court

vacated the plea, and the defendant was rearraigned on the crime of armed robbery.

The defendant subsequently filed a motion to quash in the trial court, claiming that

rearraignment on armed robbery subjected him to double jeopardy. The trial court

denied the motion and the defendant sought writs. The supreme court concluded as

follows:

In the case at bar, it appears that retrial on the greater
charge will impose no Pearce due process limitation on the
possible sentence imposed, provided of course that the
sentence is otherwise in conformity with law. The court
retains its sentencing discretion due to the fact that the state
never elected on which charge it would try the defendant if
the case went to trial. The greater charge was dropped in
return for a plea to the lesser one. After the plea was
vacated the situation reverted to the pre-plea stage. Here
we have a situation where there has been a major change

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other than just an appeal by his own hand, defendant has
upset his bargain and now pleaded not guilty to both
charges. There is no appearance of retaliation when a
defendant is placed in the same position as he was before
he accepted the plea bargain. See, United States v.
Anderson, supra, at 514 F.2d at 587-588.

Id. at 632-33.

Likewise, after the Defendant’s guilty plea was vacated in this matter,

the case reverted to it pre-plea stage, resurrecting the original charges. As stated in

Boudreaux, there is no appearance of retaliation because the Defendant was placed

in the same position as he was before he accepted the plea bargain. This factual

situation was not present in the jurisprudence cited and relied upon by the Defendant.

Additionally, the Defendant did not simply receive a harsher sentence

for the original charges, but was charged as a habitual offender. The Defendant

submits, however, that Pearce applies to the State seeking to increase the sentence

with a habitual offender adjudication. The Defendant’s assertion is not supported in

the jurisprudence or by the statute. The Defendant simply concludes that La.R.S.

15:529.1 does not give the State carte blanche to use it unconstitutionally to increase

his sentence after a successful appeal. Accordingly, there was no Pearce violation

when the Defendant received a greater sentence following the withdrawal of his

guilty plea and subsequent trial and convictions.

ERROR PATENT

In his final assignment of error, the Defendant argues that the trial court

erred in sentencing him to four habitual offender enhanced sentences for convictions

obtained the same day and arising from the same criminal act. Specifically, the

Defendant complains that the bill of information sought habitual offender

adjudication on all four convictions and that the trial court sentenced him to four

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habitual offender sentences. The Defendant maintains that pursuant La.R.S.

15:529.1, only one count of a multiple count bill of information can be used to

enhance a penalty when the convictions were entered on the same day and from the

same transaction, citing State v. Soileau, 95-1214 (La.App. 3 Cir. 5/15/96), 677 So.2d

518. In Soileau, this court observed as follows:

The Fifth Circuit Court of Appeal squarely
addressed this issue in the recent case of State v. Brown,
95-124 (La.App. 5 Cir. 5/30/95); 656 So.2d 1070, wherein
the court stated:

Only one count of a multi-count
indictment/information can be used to
enhance the penalty pursuant to La.R.S.
15:529.1 when the convictions were entered
on the same day. State v. McIntyre, 496
So.2d 1204, 1207 (La.App. 5th Cir. 1986).
Although it appears that the trial court
imposed the enhanced sentence based on one
count and not on all counts, that assumption
cannot be stated with certainty. See State v.
McIntyre, supra. Furthermore, because two
of the counts arose from a single criminal
episode, the defendant could not have been
sentenced as a multiple offender on all counts.
State ex rel. Porter v. Butler, 573 So.2d 1106,
1108 (La.1991). Convictions on more than
one count entered on the same day should be
treated as one conviction for purposes of the
habitual offender statute. Id. Therefore, the
enhanced sentence imposed must be vacated
and the case remanded to the trial court for
resentencing.

Brown, 95-124 at pp. 8-9; 656 So.2d at 1077.

Id. at 520.

As a result of this error, the defendant’s sentence was vacated and the

case remanded to the trial court for resentencing.

The State concedes that it listed all four of the Defendant’s convictions

in the habitual offender bill of information, but argues that the trial court did not

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sentence the Defendant to four habitual offender enhanced sentences. The transcript

of the hearing on the habitual offender bill and sentencing held on March 23, 2006,

reflects as follows:

The present convictions are sex crimes as defined by
Louisiana Revised Statute 15:540 with the victim under the
age of 18 at the commission of the offense. In accordance
with Louisiana Revised Statute 15:529.1 (A) 1 (c) 2, the
defendant, because the burglaries are punishable to twelve
or more years, and because the prior indecent behavior was
defined in 15:540 with the victim under the age of 18, and
the current offense is also a sexual offense as defined by
15:540 with the victim under the age of 18, the defendant
is sentenced to imprisoned with the Department of
Corrections for the remainder of his natural life without
benefit of probation or suspension of sentence.

Thus, the Defendant received only one sentence based on all four

convictions. However, at the Defendant’s hearing on his motion to reconsider

sentence held on May 23, 2006, the trial court stated:

The only thing that the Court will do, is I don’t think I
stated - - I stated that the sentence was for the four counts,
but I don’t think that I - - I am going to state now that you
are sentenced to imprisonment at hard labor for the
remainder of your natural life without benefit of parole,
probation or suspension of sentence, on each of those four
counts: the sexual battery, the oral sexual battery, the
molestation of a juvenile, and the indecent behavior with
a juvenile, and that those sentences are to run concurrently
with each count. So, it is not going to be four life
sentences consecutive, it is four life sentences to run
concurrently.

Thus, it appears that the Defendant received four life sentences, not just

one as indicated at the original sentencing. Further, at the original sentencing, the

trial court did not specify which of the four counts in the habitual offender bill was

being enhanced. Accordingly, the Defendant’s sentences are vacated and the case

remanded to the trial court for resentencing.

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CONCLUSION

The Defendant’s conviction and sentence for indecent behavior with a

juvenile is reversed and vacated. Also, the Defendant’s sentences on the remaining

convictions are vacated and the case remanded to the trial court for resentencing, in

accordance with this opinion.

CONVICTION FOR INDECENT BEHAVIOR REVERSED AND

SENTENCE VACATED.

CONVICTIONS FOR MOLESTATION OF A JUVENILE,

SEXUAL BATTERY, AND ORAL SEXUAL BATTERY AFFIRMED.

SENTENCES VACATED AND REMANDED TO TRIAL COURT.

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