State of Louisiana v. Todd Andrew Jones

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-937

STATE OF LOUISIANA

VERSUS

TODD ANDREW JONES

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 288,416
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Elizabeth A. Pickett, Judges.

CONVICTION REVERSED; JUDGMENT
OF ACQUITTAL ENTERED;
SENTENCE VACATED.

James C. Downs
District Attorney - Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Michael W. Shannon
Assistant District Attorney - Ninth Judicial District Court
P. O. Box 1792
Alexandria, LA 71309
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
Telephone: (337) 491-0570
COUNSEL FOR:
Defendant /Appellant - Todd Andrew Jones

THIBODEAUX, Chief Judge.

Defendant, Todd Andrew Jones, appeals his jury conviction of attempted

indecent behavior with a juvenile, violations of La.R.S. 14:81(A) and 14:27, on the

basis of insufficiency of the evidence. Because we agree that the evidence is

insufficient to sustain a verdict of guilty, we reverse Defendant’s conviction, order

the entry of a judgment of acquittal, and vacate his sentence of one year at hard labor.

LAW AND DISCUSSION

Defendant argues that the State failed to prove specific intent on the part

of Defendant to sexually arouse himself or the victim and that the sexual comment

made was not “lewd and lascivious” such that would warrant a conviction for

attempted indecent behavior with a juvenile.

When reviewing sufficiency of the evidence, an appellate court must

determine, in a light most favorable to the prosecution, whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

Defendant was charged with a violation of La.R.S. 14:81(A)(1), which

provides:

Indecent behavior with juveniles is the commission
of any of the following acts with the intention of arousing
or gratifying the sexual desire of either person:

(1) 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. Lack of knowledge of the
child’s age shall not be a defense.

The State has to prove that: (1) there was an age difference of at least

two years and the victim was under the age of seventeen; (2) the accused committed

a lewd or lascivious act upon the person or in the presence of the child; and, (3) the

accused had the specific intent to arouse or gratify either his own or the victim’s

sexual desires. State v. Robinson, 43,063 (La.App. 2 Cir. 2/13/08), 975 So.2d 853.

Defendant was convicted of the lesser and included offense of attempted

indecent behavior with a juvenile. Louisiana’s attempt statute provides:

A. Any person who, having a specific intent to
commit a crime, does or omits an act for the purpose of and
tending directly toward the accomplishing of his object is
guilty of an attempt to commit the offense intended; and it
shall be immaterial whether, under the circumstances, he
would have actually accomplished his purpose.

La.R.S. 14:27.

Accordingly, in order to have convicted Defendant of the lesser and

included offense of attempted indecent behavior with a juvenile, the jury would have

had to find that the Defendant specifically intended to commit a lewd and lascivious

act upon the victim, or in the victim’s presence, and did an act in furtherance thereof.

State v. Gaspard, 02-1040 (La.App. 3 Cir. 3/5/03), 841 So.2d 1021.

At trial, the victim, J.D.1, testified that on the evening of February 20,

2007, he visited his girlfriend in her home. At the time, he was fifteen years old. The

girlfriend’s mother and her uncle, Jerry Whatley, were present. Defendant was there

visiting with Whatley. The victim stated that the two men were sitting in Whatley’s

bedroom talking when he walked into the room and asked Defendant to give him a

ride to the store. Defendant said, “You couldn’t get somethin’ for nothin.’” When

he asked Defendant what he meant, J.D. testified that Defendant “told me to put my

dick in his mouth.” J.D. said that he immediately left the room and told his

girlfriend’s mother. She told him to call his mother, who called the police.

On cross-examination, J.D. stated he had seen Defendant at the house on

previous occasions. He stated that when he walked into the bedroom, the two men

1
The victim’s initials are used to protect his identity as required by La.R.S. 46:1844(W).

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were fully clothed and sitting on the bed. He recalled that the first time he walked

into the room, Whatley had made a comment about wanting to see some pubic hair.

J.D. stated that Defendant’s statement did not get him sexually aroused and he did not

know if Defendant was sexually aroused.

Defendant also testified regarding the incident. At the time of the

offense, Defendant worked for the Lecompte Police Department as Assistant Chief

of Police. Defendant testified that he was bisexual, but that he had never touched a

child. Defendant stated he had known the victim for about two years prior to the

incident, primarily through the victim’s older brother. He said that he went to the

home of the victim’s girlfriend to deliver a cell phone to the victim’s brother, but he

was not there, so he stayed to visit with Whatley. Defendant stated the victim came

into the room and asked “what you two [’]hoes ta[l]king about?” He said that they

were all laughing and joking. At some point, Whatley asked him to show some pubic

hair, and they continued to laugh and joke. Defendant testified that the bedroom door

was open at the time of the remark. He said that the victim walked in and out of the

room a few times and then asked “what would we do if he, if he showed us.” Then,

after Defendant made the comment, the victim left again. Defendant stated he had no

intention of arousing the victim, or himself, that they were just making “trash talk.”

Defendant stated that he was thirty-four at the time of trial.

There must be specific intent to commit a lewd and lascivious act upon

the person of, or in the presence of the victim, and an act in furtherance thereof. In

Gaspard, the defendant was charged with indecent behavior with a juvenile for

showing pornographic movies to his eleven-year-old son and giving him magazines

that showed nude women. He told his son that the material “would make his penis

hard.” Gaspard, 841 So.2d at 1021. The jury convicted the defendant of the lesser

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and included offense of attempted indecent behavior with a juvenile. This court

reversed the conviction stating that there was nothing to indicate that the defendant

actually desired sexual activity with the victim. There was no nudity, or touching of

either the defendant or the son. There was no act in furtherance thereof.

In State v. Peloquin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d 393,

writ denied, 04-3170 (La. 4/8/05), 898 So.2d 1280, this court discussed the elements

necessary to find attempted indecent behavior with juveniles. In Peloquin, the

defendant was charged with attempted sexual battery. However, the issue was

whether the trial court erred when it allowed testimony alleging attempted indecent

behavior with a juvenile pursuant to La.Code Evid. arts. 403 and 412.3. Two girls

testified that the defendant had approached them and asked if they wanted to see his

penis. Both girls answered “no” and walked away. This court stated:

In Gaspard, we reviewed State v. Louviere, 602 So.2d
1042 (La.App. 4 Cir. 1992), writ denied, 610 So.2d 796
(La.1993), where the appellate court reversed the
defendant’s conviction for attempted indecent behavior
with a juvenile. In Louviere, our colleagues noted that it
would be difficult for a rational trier of fact to conclude
that testimony concerning a “bad kiss” proved the
occurrence of a lewd and lascivious act. Additionally,
there was no indication that any other act was planned.
The fourth circuit concluded that without genital contact or
any other obscene or indecent act or repeated occurrence,
the kiss fell short of the statutory requirements of the crime
and reversed the defendant’s conviction. After reviewing
Louviere, we found, in Gaspard, that the act at issue was
not one contemplated by La.R.S. 14:81. We concluded that
assuming there was an act, there was no evidence the
defendant did anything upon the person of his son and he
did not participate in any lewd acts in the presence of his
son. Accordingly, we reversed the defendant’s conviction.

The acts of Defendant involving B.P. did not
constitute an attempted indecent behavior with a juvenile.
B.P. did not testify how old she was when Defendant posed
this question to her and the State asserted, in argument to
the court, that B.P. was seventeen years old. Accordingly,
La.R.S. 14:81 would not be applicable to her. The statute

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would, however, be applicable to K.P. inasmuch as the
State alleged she was fourteen at the time of the incident.
Defendant asked K.P. if she wanted to see his penis, she
replied no, and walked away. There was no testimony that
Defendant did an act in furtherance of revealing his penis
to K.P. The question was preparatory and not an overt act
similar to that in [State v.] Baxley, [93-2159 (La. 2/28/94),
633 So.2d 142]. Therefore, the evidence did not prove
Defendant’s acts constituted an attempted indecent
behavior with a juvenile.

Id. at 396.

In State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442, wherein the

defendant was found to be guilty of an attempted sexual offense, the defendant had

walked into his minor sons’ bedroom after they had gone to bed. One son, the victim,

got out of his bed and got into his brother’s bed because he did not want to be near

his father. The defendant lay down on the victim’s bed and told him to come over to

the bed. When he did so, the defendant told him to sit on his chest so he could suck

his son’s penis. The boy began crying and the defendant left the room. Even though

the boys told their mother about the incident, it was not until a few years later,

following a similar incident, that Defendant was arrested and charged with attempted

aggravated crimes against nature. In Smith, the supreme court discussed what

constituted attempt and explained:

In determining whether the action of a defendant is
an attempt, the totality of the facts and circumstances
presented by each case must be evaluated. State v.
Williams, 490 So.2d 255, 261 (La.1986). The overt act
need not be the ultimate step toward or the last possible act
in the consummation of the crime attempted. Id. It is the
intent to commit the crime, not the possibility of success,
that determines whether the act or omission constitutes the
crime of attempt. State v. Pappas, 446 So.2d 523, 524
(La.App. 4th Cir. 1984).

....

[T]he evidence in the present case indicates that Smith
attempted to commit an act of oral sex with his son Chad.

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Both Chad and his older brother Jody testified that after
they had gone to bed for the night, defendant entered their
bedroom and lay upon Chad’s bed. Jody and Chad testified
that defendant then told Chad to come over to the bed and
to sit on his chest so that defendant could suck Chad’s
penis. At trial, defendant denied entering the boys’ room
that night and asking Chad for oral sex. However,
defendant testified that when he was confronted by his wife
and her parents with allegations that he had attempted to
molest Chad, he said, “[I]f I did that, I need psychiatric
help.” Defendant voluntarily sought psychiatric treatment
at a local hospital that night and remained under hospital
care for one week following the incident.

. . . . Smith did several acts in his attempt to engage in oral
sex with his son. He entered his sons’ room. He lay on
Chad’s bed, and he asked Chad to engage in oral sex with
him. The nature of the act requested by defendant required
compliance by his son, not action by defendant.
Furthermore, in Baxley, the illegal solicitation took place
on a public street between two adult strangers. An adult on
a public street can reject unwanted sexual suggestions from
strangers by ignoring the remarks and walking away. In
the present case, the encounter occurred between father and
son in the child’s bedroom where the child was subject to
the authority of his father and not free to leave.

Clearly, Smith had specific intent to commit a crime
against nature with his son that night. He entered his sons’
room with the specific intent of engaging in oral sex and
for no other reason. He lay down on Chad’s bed for that
purpose, and he left the room after his son refused to
submit to his demand. The fact that his intended victim did
not comply with his demand does not negate the fact that
the defendant attempted to commit a crime against nature
with his son and took distinct steps toward accomplishing
his object. Defendant’s acts of entering the room, lying on
the bed and requesting his son to sit on his chest tended
directly toward the commission of an aggravated crime
against nature and were more than mere preparation.

Id. at 444-45.

In the current case, Defendant was talking to a friend in the friend’s

bedroom. He was already in the house when the victim came to visit his girlfriend.

The victim walked into the bedroom, according to his own testimony, to ask for a ride

to the store. There was testimony the door was open and remained open throughout

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the incident, and there were other people in the house at the time. In our view, there

was nothing to establish that Defendant had the specific intent to engage in oral sex

with the victim. Nothing indicated Defendant took distinct steps toward

accomplishing the objective of engaging in sexual activity with the victim. There was

testimony the victim was in and out of the room a few times. There was no testimony

there was any sexual display, or touching, or any occurrence which would have been

an act in furtherance thereof.

Furthermore, the State failed to prove a “lewd and lascivious” act upon

the victim. In Robinson, 975 So.2d at 857, the second circuit discussed the definition

of “lewd” and “lascivious” as follows:

The word “lewd” means lustful, indecent and
signifies that form of immorality which relates to sexual
impurity carried on in a wanton manner and is identified
with obscenity and measured by community norms for
morality. The word “lascivious” means tending to incite
lust, indecent, obscene and tending to deprave the morals
in respect to sexual relations. State v. Holstead, 354 So.2d
493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d
627 (1950); State v. Bugbee, [34,524 (La.App. 2 Cir.
2/28/01), 781 So.2d 748] supra. Finding that an act is
lewd or lascivious depends upon the time, the place and all
of the circumstances surrounding its commission, including
the actual or implied intention of the actor. State v.
Bugbee, supra; State v. Sturdivant, 27,680 (La.App. 2d Cir.
2/28/96), 669 So.2d 654.

Robinson found that the circumstances surrounding the defendant’s

actions established the lewd and lascivious nature of his act. Robinson entered a

store and grabbed the buttocks of a young girl and then attempted to rub up under her

shirt. He said to her, “Hey, baby.” After the girl fled, he approached another woman

and grabbed her bottom also. The defendant argued that his act of grabbing the minor

on the buttocks was not a lewd or lascivious act as proscribed by La.R.S. 14:81. The

second circuit found otherwise, stating:

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In this case, the defendant grabbed the stranger’s
buttocks for a few moments before the child was able to
react and pull away. The defendant “tried to go up [the
victim’s] shirt,” but the victim ran away. He engaged in
similar groping behavior with another victim. During the
physical contact, the defendant said “Hey, baby” to the
victim. Robinson later admitted that he acted because he
believed the women to be attractive females and he could
not help himself. The term “hey bab[e]” and Robinson’s
statement that he was not able to help himself sufficiently
disclose his sexual intentions toward the victim. When
viewed in context with the acts which accompanied
Robinson’s words, including the groping of the child’s
buttocks and an attempt to reach under her shirt, his
behavior was indecent, violated community norms for
morality and was indicative of Robinson’s lustful
disposition toward the child. Thus, when viewed in the
light most favorable to the state, a rational fact finder could
have concluded that forty-year-old Robinson was guilty of
indecent and lewd acts upon this fourteen-year-old with the
intent of arousing or gratifying his sexual desires.

Id. at 857-58.

In State v. Rideaux, 05-446, pp. 12-14 (La.App. 3 Cir. 11/2/05), 916

So.2d 488, 496-97, while discussing the terms “lewd” and “lascivious” this court

discussed a case wherein an elderly defendant french kissed two nine-year-old girls:

In State v. Louviere, 602 So.2d 1042, 1044 (La.App.
4 Cir. 1992), writ denied, 610 So.2d 796 (La.1993)
(citations omitted), wherein the defendant was convicted of
two counts of indecent behavior with a juvenile, the fourth
circuit stated:

To determine whether the trier of fact
rationally concluded that this act was “lewd or
lascivious,” or an act tending directly toward
a lewd or lascivious act, we must first
consider how these terms are defined.
According to a recent decision of this court,

[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.

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In that case, two nine-year-old girls testified that the
seventy-two-year-old defendant asked them to kiss him to
see if his breath smelled like chicken and that he attempted
to put his tongue in their mouths when they did so. There
were no other touches or suggestions of a sexual nature.
Our colleagues on the fourth circuit held that without more,
although disgusting, there was no evidence that he
committed a lewd and lascivious act with the intent to
arouse or gratify sexual desires.

The court cited State v. Saibold, 213 La. 415, 34
So.2d 909 (1948), in stating:

[T]he Louisiana Supreme Court, in
concluding that the meaning of the terms was
sufficiently clear when used together, stated
that lewd or lascivious behavior “connotes
actions or gestures of the lustful and
lecherous nature.” Furthermore, “to settle any
possible doubt,” that court directed attention
to the Reporter’s Comment to § 14:81, which
specifies that the purpose of this section
prohibiting indecent behavior with a juvenile
is to prohibit behavior that falls short of
sexual intercourse carried on with young
children as well as indecent sexual displays in
their presence.

Louviere, 602 So.2d at 1044.

In State v. Gaspard, 02-1040, pp. 5-6 (La.App. 3 Cir.
3/5/03), 841 So.2d 1021, 1025, wherein the defendant was
convicted of indecent behavior with a juvenile, we quoted
Louviere, 602 So.2d at 1044-45, as follows:

In addition, a review of reported cases
of prosecutions under § 14:81 is illustrative of
the type of conduct intended to be proscribed.
Indecent behavior with a juvenile in which
kissing has occurred has uniformly involved
more. In State v. Boutte, 384 So.2d 773
(La.1980), the defendant was alleged to have
stuck his tongue into the mouth of a four (4)
year old neighbor. In addition, however, he
removed the child’s clothing, laid on top of
her, and rubbed her genitals. While the
defendant in State v. Jacob, 461 So.2d 633
(La.App. 1st Cir. 1984), did repeatedly kiss a
thirteen (13) year old boy, he also pulled the
boy on top of him in bed and fondled him

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during an overnight stay. And, this court
found indecent behavior with a juvenile to
have occurred when the defendant french
kissed two young boys and also indulged in
inappropriate body contact, all over a
protracted period. State v. Rollins, 581 So.2d
379 (La.App. 4th Cir. 1991). It appears then
that 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.

In view of the definition, the stated purpose of the
criminal statute, and our review of prior jurisprudence
involving the statute, it would be difficult for the rational
trier of fact to conclude that the testimony concerning a
“bad kiss” proved the occurrence of a lewd and lascivious
act. Furthermore, there was no indication that any other
action was planned which, together with the kiss, would
bring Louviere’s conduct within the ambit of the statutory
prohibition. Without genital contact or any other obscene
or indecent act or repeated occurrence, these kisses fall
short of the statutory and judicial requirements of the
crime.

In the current case, the circumstances surrounding the comment

Defendant made to the victim did not point to a lewd and lascivious act. There was

no testimony that Defendant had had any other interactions with the victim outside

the house. The victim testified he had seen Defendant at his girlfriend’s house on

other occasions, but there was never any interaction between the two. At the time the

remark was made to the victim, Defendant was talking with the girlfriend’s uncle in

his room, the door was open, and the girlfriend and her mother were in the house.

There was no indecent exposure, or physical contact of any sort. There was nothing

which indicated Defendant actively desired sexual contact with the victim.

Defendant’s comment was short of the statutory requirements of the offense. Taken

in the light most favorable to the State, the evidence was insufficient to sustain the

verdict beyond a reasonable doubt.

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CONCLUSION

For all of the above reasons, there is merit to Defendant’s assignment of

error. We, therefore, reverse Defendant’s conviction, order a judgment of acquittal

be entered, and vacate the sentence.

CONVICTION REVERSED; JUDGMENT OF ACQUITTAL

ENTERED; SENTENCE VACATED.

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