State of Louisiana v. Thornton Gross

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-6

STATE OF LOUISIANA

VERSUS

THORNTON GROSS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 114793
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, James T. Genovese, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Michael Harson
District Attorney, 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Appellee:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Thornton Gross

Patrick D. Magee
Assistant District Attorney, 15th JDC
P. O. Box 91847
Lafayette, LA 70509-1847
(337) 231-5883
Counsel for Appellee:
State of Louisiana

Gremillion, Judge:

The Defendant, Thornton Gross, entered a Crosby guilty plea1 on October 14,

2008, to the offenses of 1) felony carnal knowledge of a juvenile, a violation of

La.R.S. 14:80(A)(1), and 2) sexual battery, a violation of La.R.S. 14:43.1. On the

same date, the Defendant was sentenced to serve seven and a half years at hard labor

on count one, without benefit of parole, and seven and a half years at hard labor on

count two, with the sentences to be served consecutively. We affirm.

FACTS

The Defendant was originally indicted along with two co-defendants for second

degree murder of the victim in this case. He was acquitted on March 9, 2007.

During the trial, the Defendant took the stand in his own defense and testified that he

had consensual sex with the then thirteen-year-old female victim on the same day as

the murder, but contended that his conduct with the victim occurred hours prior to her

death. The Defendant was later charged with the instant offenses and filed a motion

to quash the indictment, alleging a double jeopardy violation. The trial court denied

the motion, and the ruling was affirmed on review. See State v. Gross, an

unpublished writ bearing docket number 08-126 (La.App. 3 Cir. 5/7/08), writ denied,

08-1220 (La. 6/18/08), 984 So.2d 3.

On October 14, 2008, the trial court heard another motion by the Defendant,

seeking to prohibit introduction of his murder trial testimony at the new proceeding.

After the trial court denied the motion, the Defendant entered a guilty plea pursuant

to the provisions of State v. Crosby, 338 So.2d 584 (La.1976). The Defendant

reserved the right to appeal the issues of whether the new prosecution was barred by

1
State v. Crosby, 338 So.2d 584 (La.1976) allows a defendant to enter a plea of guilty
and reserve appellate review of pre-plea rulings.

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the double jeopardy prohibition and whether the State could prove the offenses

without the testimony of the deceased victim. At the Defendant’s guilty plea

proceeding, the State set forth the facts of the two offenses.

The State contended it was prepared to prove that the Defendant committed

sexual battery upon the victim, who was under 15 years of age on October 10, 2004,

and that the victim was at least three years younger than the Defendant at the time of

the offense. Further, the State argued it would have proven that the Defendant, who

was 19 years old or older at the time of the offense, had consensual sexual intercourse

with the victim. This would have proven the second crime of felony carnal

knowledge of a juvenile because the victim was older than twelve years but younger

than 17 years on October 10, 2004, and was not the spouse of the Defendant. There

are no errors patent.

ANALYSIS

The Defendant raises two assignments of error. First, he contends that the

current prosecution places him in double jeopardy. Second, the Defendant contends

that the State has a corpus delicti problem. Specifically, he alleges that the state

could not have convicted him based on his trial testimony alone. Rather, the

testimony of the deceased victim was also necessary. We will address those

assignments in turn. However, some preliminary analysis must be discussed.

THE CROSBY PLEA

Under Crosby, a defendant pleads guilty, but reserves his right to appeal

alleged pretrial errors. The function of this type of contingent or conditional plea “is

to permit a fair and efficient review of a central issue when the pretrial ruling on that

issue, if erroneous, would mandate reversal of any resulting conviction.” State v.

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Cooper, 43,809, p. 6 (La.App. 2 Cir. 1/14/09), 2 So.3d 1174, 1177-8. However, a

Crosby plea, by its very nature, is limited. An appellate court should presume that the

contingency permitted by the Crosby plea is no broader than necessary to effectuate

the underlying purpose of the conditional guilty plea. That purpose is to preserve

appellate review of evidentiary rulings which go to the heart of the prosecution’s

case, that a defendant would otherwise waive by entering an unqualified guilty plea.

In this case, the record is exceedingly clear that there are only two appellate

contingencies created by the Defendant’s Crosby plea. Specifically, the trial court,

in accepting the guilty plea with reservations, permitted the Defendant to appeal its

pre-trial rulings regarding only double jeopardy and corpus delicti. Therefore, while

the record reflects multiple disputes between the parties regarding issues of fact, those

issues are now moot by virtue of the Defendant’s guilty plea. Likewise, there were

a number of evidentiary disputes that are resolved by the guilty plea. Moreover, for

purposes of this appeal, it is a fact that this 19-year old defendant engaged in

inappropriate, albeit consensual, touching and sexual intercourse with the 13-year old

victim. Thus, as a consequence, he is guilty of the crimes of felony carnal knowledge

of a juvenile and sexual battery as those crimes are described in La.R.S. 14:80 and

La.R.S. 14:43.1, respectively.

DOUBLE JEOPARDY

Louisiana Code of Criminal Procedure article 596 provides:

Double jeopardy exists in a second trial only when the charge in that
trial is:
1) Identical with or a different grade of the same offense for which the
defendant was in jeopardy in the first trial, whether or not a responsive
verdict could have been rendered in the first trial as to the charge in the
second trial; or
2) Based on a part of a continuous offense for which offense the
defendant was in jeopardy in the first trial.

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Thus, the proper question to ask is: if the Defendant were tried for felony

carnal knowledge of a juvenile and sexual battery, how would that be different from

his previous murder trial? If those two charges are not “identical with or a different

grade of” the previous second degree murder charge, then the Defendant is not placed

in double jeopardy. Likewise, no double jeopardy exists if the sexual battery and

felony carnal knowledge of a juvenile is not “part of a continuous” second degree

murder offense.

In making a double jeopardy determination, Louisiana courts employ the

Blockburger test, which states that where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied is whether each

provision requires proof of an additional fact, which the other does not. Blockburger

v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932). In addition, our state also relies

on the broader standard embodied in the “same evidence test.” State v. Cotton, 00-

850 (La. 1/29/01), 778 So.2d 569. Under this test, 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 the defendant can be

placed in jeopardy only for one. Id. It is important to understand, however, that the

“same evidence test” depends upon the proof required to convict, not all of the

evidence actually introduced at trial. State v. Miller, 571 So.2d 603 (La.1990), and

State v. Steele, 387 So.2d 1175 (La.1980).

Taken together, these two standards require that we ask two questions

regarding the Defendant’s alleged sex crimes involving the victim. First, what was

the alleged “act or transaction” for which the Defendant was prosecuted in his murder

trial? And second, what evidence was required to convict the Defendant of that act

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or transaction?

Here, the Defendant was first tried for second degree murder. To convict, the

State needed to prove that the Defendant killed the victim while the Defendant was

“engaged in...forcible rape.” La.R.S. 14:30.1. In order to convict the Defendant of

second degree murder, then, the State was required to place the Defendant in jeopardy

with regard to the crime of forcible rape. An offender commits this crime when he

has non-consensual sexual intercourse “[w]hen the victim is prevented from resisting

the act by force or threats of physical violence under circumstances where the victim

reasonably believes that such resistance would not prevent the rape.” La.R.S.

14:42.1.

Felony carnal knowledge of a juvenile is committed when:(1) A person who

is seventeen years of age or older has sexual intercourse, with consent, with a person

who is thirteen years of age or older but less than seventeen years of age, when the

victim is not the spouse of the offender and when the difference between the age of

the victim and the age of the offender is four years or greater. La.R.S. 14:80(A)(1).

Sexual battery is the intentional engaging in any of the following acts with another

person where the offender acts without the consent of the victim, or where the act is

consensual but the other person, who is not the spouse of the offender, 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(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. La.R.S. 14:43.1.

This court has made it clear that a defendant is twice placed in jeopardy by

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trying him both on a charge requiring perpetration of another felony, and the

underlying felony. State v. Pierce, 01-94 (La.App. 3 Cir. 10/31/01), 799 So.2d 732,

writ denied, 01-3312 (La. 1/10/03), 834 So.2d 427. Therefore, if the charge of sexual

battery and felony carnal knowledge of a juvenile arose from the same act or

transaction for which the Defendant was first tried for forcible rape, that would

clearly constitute double jeopardy. We find, however, that this is not the case.

During the second degree murder trial, the state alleged that the Defendant and

others took the victim into the woods, and there they proceeded to kick, beat and

stomp her. They, allegedly, left her for dead, but not before they had vaginal sexual

intercourse with her. That alleged act of non-consensual sexual intercourse was the

predicate act of forcible rape urged by the state in the Defendant’s murder trial.

Again, if that alleged sex crime was the same sex crimes for which the Defendant was

charged, i.e., sexual battery and felony carnal knowledge of a juvenile, and that

resulted in his guilty plea, then he would clearly be exposed to double jeopardy.

That, however, is not the case.

Rather, the Defendant himself described those separate sex crimes that

admittedly occurred hours before the alleged forcible rape and second degree murder.

He said they happened at the home of Ms. Crystal Phillips; whereas the alleged

forcible rape occurred in a distant location in a wooded area. He described how this

13-year-old victim “wanted to give” him oral sex and in fact did perform oral sex on

him. He testified in explicit detail that not only was this sex act consensual, but

indeed this 13-year-old child “complied with no rebelliousness.” Of course, the

alleged forcible rape was non-consensual.

In the second degree murder trial, the state suggested that there was certain

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“biological matter” from the Defendant on both the inside and the outside of the

victim’s pants. In his testimony, however, the Defendant made it very clear that this

“biological matter” must have been transferred to the victim’s pants during the

separate consensual sex acts as opposed to the alleged non-consensual rape, thereby

making a very clear distinction between the separate sex crimes. In short, the sex

crimes of sexual battery and felony carnal knowledge of a juvenile are clearly

separate and distinct from the alleged sex crime of forcible rape. They differ in time.

They differ in location. They differ in terms of the physical acts themselves. They

differ in terms of the state of mind of the victim. They differ in that no element of

forcible rape inquires into the age of the victim.

The Defendant does properly point out that the state did submit evidence and

argument relating to the first consensual sex crime. The state relied on the

Defendant’s own testimony that these first sexual acts left the Defendant “hot and

bothered” and contributed to what the state called the Defendant’s “lustful

disposition.” As the argument goes, it was this lustful disposition within the

Defendant which led to the Defendant’s hours-long adventure to first negotiate

additional consensual sex acts and, ultimately, to non-consensual, violent, rape.

According to the Defendant, this evidence used to prove his “disposition” was

the “same evidence” used to prove felony carnal knowledge of a juvenile and sexual

battery. Moreover, according to the Defendant, this meets the “same evidence” test.

Furthermore, the Defendant argues that, because it was these first consensual sex acts

which ultimately led to the alleged forcible rape, they form “part of a continuous

offense” as that phrase is used in La.Code Crim.P. art. 596. We disagree.

With regard to the Defendant’s “same evidence” argument, reference must be

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made to the specifics of the “same evidence” test. It is true that the same evidence of

these first sex crimes was used in the murder trial. However, that alone does not fit

within the limitations of the “same evidence” test. Jurisprudence holds that not all

evidence introduced at trial is to be considered for purposes of the “same evidence”

test. Rather, only the evidence necessary for conviction can be considered. Thus, the

question becomes not whether evidence of the first sex crimes was introduced during

the first trial, but whether evidence of those first consensual sex crimes was necessary

to convict the Defendant of the alleged forcible rape. Clearly it was not.

CORPUS DELICTI

The Defendant finds himself in a similar position with regard to this argument.

He now argues that the state could not have convicted him based on his trial

testimony. Rather, he argues that the testimony of the deceased victim is required for

a conviction. The Defendant entered a guilty plea and no other evidence was adduced.

However, the state had additional evidence upon which it would rely. Indeed, it

would have employed the same additional evidence that the Defendant used in

proving his innocence in the second degree murder trial.

It is true that the Defendant did specifically testify in the murder trial regarding

sexual contact with the victim on the date of the murder. However, he also testified

that these sex crimes took place in a bedroom of Ms. Crystal Phillips’ residence. This

testimony would have been corroborated by the Defendant’s witness, Ms. Crystal

Phillips. Would she have been called to the stand, she would have testified, as she

did in the first trial, that these sex acts did take place in her home and that she saw the

Defendant alone with the victim, hugging and kissing her. The state would have also

introduced evidence of the “biological matter” found on the person of the deceased

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victim belonging to the Defendant. It merits note that Defendant’s admission of these

consensual sex crimes with the minor victim was offered as an explanation of how

that biological matter was found on the young murder victim.

In Louisiana, the corpus dilecti rule prohibits conviction of an accused, based

on his own, uncorroborated confession, without proof that a crime has been

committed by someone. State v. Thibodeaux, 98-1673 (La. 9/8/99) 750 So.2d 916,

cert. denied, 529 U.S. 1112, 120 S.Ct. 1969 (2000). This is because the “touchstone

is trustworthiness,” and “corroboration is an effective test of the trustworthiness of

a person’s inculpatory statements.” State v. Martin, 93-285 (La. 10/17/94), 645

So.2d 190, 195, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252 (1995). However,

Martin held that “corroborating evidence need only show the essential injury

involved in the charged crime ... in order to establish the reliability of the inculpatory

statements of the accused; the corroborating evidence need not show every element

of the definition of the crime charged.” Id. at 195.

Here, the simple fact is corroborating evidence exists in the form of testimony

of Ms. Crystal Phillips, who would have placed the Defendant alone with the minor

in a bedroom in her house engaged in amorous conduct. Furthermore, it would have

come in the form of “biological matter” from the Defendant which was found on the

victim upon the discovery of her body.

CONCLUSION

The evidence clearly establishes that the state in the first trial placed the

Defendant in jeopardy with regard to an alleged forcible rape for which he was

acquitted. In the second trial, the state would have placed the Defendant in jeopardy

for a completely separate and distinct act or transaction; specifically, sex crimes of

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a consensual nature involving completely separate and different actions by the

Defendant at a different time and at a different place than those actions involved in

the alleged forcible rape. There is no double jeopardy.

Further, the Louisiana corpus dilecti rule has not been violated. The state

could have proven the charges based on direct and circumstantial evidence. The trial

court, therefore, properly accepted the guilty plea of the Defendant on the charged

offenses.

AFFIRMED.

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