State of Louisiana v. Terry L. Cooley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-959

STATE OF LOUISIANA

VERSUS

TERRY L. COOLEY

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-316-2008
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Glen D. Vamvoras
Vamvoras Schwartzber & Hinch
1111 Ryan Street
Lake Charles, LA 70601
Telephone: (337) 494-5682
COUNSEL FOR:
Defendant/Appellant - Terry L. Cooley

David W. Burton
District Attorney – 36th Judicial District Court
Richard Allen Martin
First Assistant District Attorney – 36th Judicial District Court
P. O. Box 99
DeRidder, LA 70634
Telephone: (337) 463-5578
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

Defendant, Terry L. Cooley, was convicted of three counts of

aggravated incest, in violation of La.R.S. 14:78.1, one count of sexual battery, in

violation of La.R.S. 14:43.1, and one count of molestation of a juvenile, in

violation of La.R.S. 14:81.2. The court sentenced Cooley to five years at hard

labor for each aggravated incest conviction, to run concurrently. The court

sentenced Cooley to two years at hard labor for the sexual battery and to seven

years at hard labor for the molestation, to run concurrently with each other but

consecutively to the aggravated incest penalties. He appeals. For the following

reasons, we affirm.

I.

ISSUES

We shall consider whether:

(1) Cooley’s constitutional right to a full voir dire was violated
where one of the jurors denied having a relative who had been a
victim of sexual abuse, where the juror’s brother allegedly
molested his niece and his daughter, and where the brother was
executed for aggravated rape, kidnapping, and capital murder;

(2) Cooley’s rights were violated when a recused judge excused
potential jurors from voir dire outside the defense’s presence
when the matter had not been called for trial yet;

(3) Cooley’s right to a fair trial was violated because of the alleged
prejudice resulting from joinder of sexual battery, molestation,
and aggravated incest charges;

(4) Cooley was subjected to double jeopardy because molestation
of a juvenile and sexual battery were billed as separate offenses;

(5) the trial court erred by not allowing special jury instructions
defining “lewd and lascivious,” “force,” and “use of force;”
and,

(6) the trial court erred by allowing improper opinion testimony of
a non-expert witness.

II.

FACTS

Cooley was convicted of one count of aggravated incest for lewdly

fondling his juvenile stepdaughter M.L..1 Cooley was convicted of a second count

of aggravated incest for exposing his genitals and lewdly fondling his minor

stepdaughter S.L.. Cooley was convicted of a third count of aggravated incest for

lewdly fondling his juvenile stepdaughter K.L.. Cooley was convicted of sexual

battery for touching the genitals of the adolescent S.P. without her consent.

Finally, Cooley was convicted of molestation of a juvenile for exposing S.P.’s

breast as well as for rubbing and blowing on her stomach.

III.

LAW AND DISCUSSION

(1) Voir Dire

The record shows that the voir dire questionnaire asked whether a

juror, the juror’s family member, or the juror’s close acquaintance had been a

victim of sexual abuse. Juror Francis Powell answered “no” to this query. Cooley

alleges that, following the verdict, defense counsel learned that law enforcement

had investigated complaints that Juror Powell’s brother, Rexford Powell, had

sexually assaulted a niece and his biological daughter.

These allegations arose during the investigation of other sex crimes

for which Juror Powell’s brother was prosecuted: a 1985 Louisiana case and a

1991 Texas case. Rexford Powell was acquitted of the charges alleged in the first

case, but he was convicted of aggravated rape, kidnapping, and capital murder at

the conclusion of the 1991 trial. The State of Texas executed Rexford Powell in

2002.
1
Initials are being used in this case to protect the identity of the victims in accordance
with La.R.S. 46:1844(W).

2

Cooley complained that he had been denied his constitutional right to

a full voir dire examination of prospective jurors and to challenge jurors

peremptorily. Cooley asserted that Juror Powell’s incorrect answer denied him his

right to full disclosure of any matter that could affect a potential juror’s attitude.

During a hearing on Cooley’s motion for a new trial, Robert

McCullough, the officer who originally investigated the initial complaints against

Rexford Powell, revealed that the niece who had indicated Rexford Powell might

have been the masked person who sexually assaulted her was not related to Juror

Powell. She was the niece of Rexford Powell’s wife by blood relation.

During investigation of the Texas case, law enforcement learned that

Rexford Powell’s daughter had made allegations to an unknown source that

Rexford Powell had molested her. The Beauregard Parish law enforcement did not

investigate the daughter’s complaints, and they did not arrest Rexford Powell in

connection with those allegations.

If a false statement of a juror on voir dire is discovered during trial,

the defendant may move for a mistrial, and the motion may be granted if the

defendant was prevented from receiving a fair trial. La.Code Crim.P. art. 775. In a

post-trial context, the matter can be raised in a motion for new trial.

The motion for a new trial is based on the
supposition that injustice has been done the defendant,
and, unless such is shown to have been the case the
motion shall be denied, no matter upon what allegations
it is grounded.

The court, on motion of the defendant, shall grant
a new trial whenever:

(1) The verdict is contrary to the law and the
evidence;

(2) The court’s ruling on a written motion, or an
objection made during the proceedings, shows prejudicial
error;

3

(3) New and material evidence that,
notwithstanding the exercise of reasonable diligence by
the defendant, was not discovered before or during the
trial, is available, and if the evidence had been introduced
at the trial it would probably have changed the verdict or
judgment of guilty;

(4) The defendant has discovered, since the verdict
or judgment of guilty, a prejudicial error or defect in the
proceedings that, notwithstanding the exercise of
reasonable diligence by the defendant, was not
discovered before the verdict or judgment; or

(5) The court is of the opinion that the ends of
justice would be served by the granting of a new trial,
although the defendant may not be entitled to a new trial
as a matter of strict legal right.

La.Code Crim.P. art. 851.

“The motion for new trial is based upon the supposition, and requires

a showing, that injustice has been done the defendant. La.C.Cr.P. art. 851.

Regarding the misstatements of jurors, the defendant must show that he was

prejudiced by the misstatement for a new trial to be warranted.” State v. Johnson,

32,910, p. 5 (La.App. 2 Cir. 1/26/00), 750 So.2d 398, 403-04, writ denied, 00-911

(La. 11/3/00), 773 So.2d 140.

First, as argued by the State, Cooley was not prevented from having a

full and adequate voir dire as he has failed to show that either the State or the trial

court placed unreasonable limitations on the voir dire examination by the defense:

As a general matter, an accused in a criminal case is
constitutionally entitled to a full and complete voir dire
examination. La. Const. Art. I, § 17. The purpose of
voir dire is to determine the qualifications of prospective
jurors by testing their competency and impartiality and to
assist counsel in articulating intelligent reasons for
exercise of cause and peremptory challenges. The scope
of voir dire is within the sound discretion of the trial
judge and his rulings will not be disturbed on appeal
absent a clear showing of an abuse of discretion.

State v. Ball, 00-2277, p. 23 (La. 1/25/02), 824 So.2d 1089, 1110, cert. denied, 537

U.S. 864, 123 S.Ct. 260 (2002) (citation omitted).

4

Second, Cooley failed to establish that Juror Powell actually lied in

response to the inquiry on the jury questionnaire. The testimony of Robert

McCullough was the only evidence either proffered or offered to prove the truth of

the matter asserted. The niece whose complaints were investigated during the first

case, the charges of which Rexford Powell was acquitted, was not the niece of

Juror Powell because the niece was only related to Rexford Powell through his

wife.

Further, Mr. McCullough was not involved in the second

investigation; he learned only that Rexford Powell’s daughter had alleged to an

unknown source that her father had molested her. Thus, it appears as if Mr.

McCullough had only heard rumors that such sexual misconduct had occurred. As

Rexford Powell was never investigated for, arrested for, charged with, or

prosecuted for sexual misconduct with his daughter, the rumors were never proven

or substantiated. Thus, Cooley failed to establish that Juror Powell intentionally

misled the court when he answered “no” to the question asking if he, any family

member, or close acquaintance had been the victim of a sex crime.

Finally, assuming, arguendo, that Juror Powell was aware of the

rumor concerning his brother and his brother’s daughter, Cooley failed to show

that he was prejudiced by or suffered injustice as a result of the misinformation.

Cooley did not show whether Juror Powell believed his brother guilty of the

misconduct, whether Juror Powell’s impartiality was affected by sympathy for his

niece, or whether Juror Powell influenced his fellow jury members to find Cooley

guilty.

Accordingly, this assertion is without merit.

5

(2) Recused Judge’s Participation in the Process

Cooley contends that he is entitled to relief because Cooley and his

counsel were not present when potential jurors were excused from jury service by

Judge Martha Ann O’Neal who was not assigned to the case and who had

previously recused herself. Cooley asserts that the court minutes show that a

judge, other than the trial judge, considered requests to be excused by potential

jurors summoned for voir dire. Cooley complains that some of those potential

jurors were excused outside of the presence of Cooley and defense counsel when

their presence had not been waived. Cooley urges, therefore, that he was denied

his right to make a contemporaneous objection.

Cooley posits that there was further impropriety because the witnesses

were excused by Judge O’Neal, who had previously recused herself from Cooley’s

case. Cooley contends that Judge O’Neal had no authority to excuse potential

jurors from voir dire, and her actions constituted a reversible error.

The State agrees that, in the days prior to any case being called on

November 15, 2010, Judge O’Neal excused several prospective jurors from the

venire for good cause pursuant to La.Code Crim.P. art. 403.1 and art. 783. The

same thing happened in open court on November 15, 2010, when Judge O’Neal

preliminarily qualified the entire venire and granted additional excuses for good

cause before resetting all cases scheduled that week to commence on November

15, 2010. The prosecution advances that Cooley and his attorney had the right to

attend the preliminary proceedings but they declined the opportunity and failed to

object. The State contends, therefore, that Judge O’Neal was dealing with the

business of court for her own cases, which resulted in potential jurors being

excused from jury service in Cooley’s case, as well.

The record shows that Judge O’Neal issued an order recusing herself

from Cooley’s case as she had been employed or consulted as an attorney in a

6

related juvenile proceeding. The record also indicates that seventeen different

cases were listed for trial for the petit jury week of November 15, 2010, and that

Cooley’s case was the first on the list. At that point, the case has not been called

for trial. It was the next day that Judge Ward Fontenot called the matter for trial.

It appears from the transcript of November 15, 2010, that Judge O’Neal, though

expecting the jury venire to be used in Cooley’s case, anticipated the criminal petit

jury venire being used in other cases besides Cooley’s.

This court examined the same issue in State v. Desoto, 06-1115

(La.App. 3 Cir. 3/14/07), 968 So.2d 146, rev’d on other grounds, 07-1804 (La.

3/17/09), 6 So.3d 141. There, the defendant argued there was a defect in the

proceedings because a recused judge participated in the process by excusing seven

prospective jurors. There were several other cases on the docket, and the recused

judge communicated that fact to the jury. Furthermore, the defendant’s case was

the first on the trial docket. This court held that although the judge recused himself

from this particular case, there were other matters pending on the trial docket, and

the judge informed the jury accordingly. This court also found important that at

the time jurors were excused, the case had not yet been called for trial. This court

concluded that there was no reversible error.

Here, like in Desoto, this court finds that because the jury venire was

called for multiple cases and because the case had not yet been called for trial, the

trial court did not commit a reversible error by excusing the jurors.

(3) Joinder of Offenses

Cooley argues that there was no factual similarity between counts one

through three and counts four and five. Cooley urges that joinder of the charges

voided the presumption of innocence and resulted in the jury’s presumption of his

7

guilt. Cooley concludes that his right to a fair trial was violated because the

prejudice against him overwhelmed the presumption of innocence.

SAME OR SIMILAR CHARACTER:

Cooley first argues that the sexual battery and molestation charges are

not of the same or similar character as the aggravated incest charges because the

facts are not similar enough; the sexual battery and molestation did not involve a

victim related to him, and the aggravated incest charges occurred over a period of

time separate and distinct from the sexual battery and molestation counts.

Louisiana Code of Criminal Procedure Article 493 provides for the

joinder of charges where the offenses are of the same or similar character:

Two or more offenses may be charged in the same
indictment or information in a separate count for each
offense if the offenses charged, whether felonies or
misdemeanors, are of the same or similar character or are
based on the same act or transaction or on two or more
acts or transactions connected together or constituting
parts of a common scheme or plan; provided that the
offenses joined must be triable by the same mode of trial.

As relative felonies, all of Cooley’s charges in this case were triable by the same

mode of trial; relative felonies are triable by a six-person jury, all of whom must

concur in order to render a guilty verdict. La.Const. art. 1, § 17; La.R.S. 14:43.1;

La.R.S. 14:48.1; La.R.S. 14:81.2; La.Code Crim.P. art. 782.

In State v. H.A., Sr., 10-95, pp. 12-13 (La.App. 3 Cir. 10/6/10), 47

So.3d 34, 43, this court discussed whether attempted aggravated incest and

molestation were of the same or similar character where the victims were different

and the offenses were separated by eight to fifteen years:

We have reviewed the considerations and factors
set forth in [State v.] Washington[, 386 So.2d 1368
(La.1980)] in light of the fact that a trial court’s
discretion should not be disturbed unless that discretion
was shown to be abused and conclude that the trial court
in the present case did not err in refusing the defendant’s
motion to sever. The crimes with which the defendant

8

was charged were similar in a number of respects: 1)
both victims were girls who were about nine years of age
when the sexual abuse occurred and/or started; 2) both
victims had a familial relationship with the defendant--he
was married to the mother of both victims and the
victims lived with him in his home when the offenses
occurred; and 3) the defendant was an authority figure in
both instances, father and stepfather.

....

For these reasons, we find that the trial court did
not err in refusing to sever the defendant’s charges and
that this assignment of error is without merit.

The record shows that Cooley was charged with committing

aggravated incest upon M.L. over a one-and-a-half-year period, beginning in

March 2001 and ending in August 2002; the abuse began when the victim was ten

and ended when she was eleven. Cooley was charged with the aggravated incest of

S.L. over a nearly five-year period, beginning in March 2002, when the victim was

ten, and ending in January 2007, when the victim was fourteen. Cooley was

charged with committing aggravated incest upon K.L. over an almost two-year

period beginning in November 2005, when the victim was twelve, and ending in

September 2007, when the victim was thirteen. Cooley was then charged with

committing sexual battery and molestation of sixteen-year-old S.P. on or about

December 20, 2007. All charges alleged the sexually-inappropriate fondling,

touching, or rubbing of a child under the age of seventeen. The record also shows

that the offenses involving S.P. occurred when S.P.’s parents were out of town but

on their way back home, when S.P. and her sister had returned home to await their

parents’ arrival and when Cooley was supposed to be only dropping off S.P.’s

brother and placing him in S.P.’s care.

As in H.A., Sr., these charges are of the same or similar character.

The charges were all sex crimes involving the fondling, touching, or rubbing of

pubescent female victims where Cooley was in a position of authority or perceived

9

authority over the victims and their siblings. Also, as H.A., Sr., which involved the

lapse of several years between the offenses, the lapse of several months between

the cessation of Cooley’s abuse of his stepdaughters and the date when Cooley

abused his friends’ daughter is not a factor that would make the offenses dissimilar

in character. See also State v. Friday, 10-2309 (La.App. 1 Cir. 6/17/11), 73 So.3d

913.2

Accordingly, the trial court did not abuse its discretion in determining

Cooley’s offenses to be of a similar character.

PREJUDICE:

Cooley next contends that the sexual battery and molestation charges

should have been severed from the aggravated incest charges because they unfairly

prejudiced Cooley and violated his right to a presumption of innocence.

“If it appears that a defendant or the state is prejudiced by a joinder of

offenses in an indictment or bill of information or by such joinder for trial together,

the court may order separate trials, grant a severance of offenses, or provide

whatever other relief justice requires.” La.Code Crim.P. art. 495.1.

In State v. Brooks, 541 So.2d 801, 805 (La.1989),
the supreme court discussed the grounds for a motion to
sever, stating:

The motion to sever is addressed to the sound
discretion of the trial court[,] and the court’s ruling
should not be disturbed on appeal absent a showing of an

2
In this case, evidence of either offense—aggravated rape or molestation of a juvenile—
would have been admissible as other crimes evidence under La.Code Evid. art. 412.2 at the trial
of the other offense to show the defendant’s lustful disposition toward young children. Despite
the lapse of time between the two offenses, the identity of the defendant as the perpetrator and
the similar character of the offenses remained unchanged. See State v. Williams, 05-317
(La.App. 5 Cir. 11/29/05), 918 So.2d 466, writ denied, 06-638 (La. 10/6/06), 938 So.2d 64
(upholding the trial court’s denial of a motion to sever a charge of rape committed from 1998 to
2002 and a charge of aggravated rape committed from 1986 to 1992). See also State v.
Dickinson, 370 So.2d 557 (La.1979) (upholding the denial of a motion to sever in a case that
involved the kidnapping-attempted rape of one victim and then, a year later, the kidnapping-
attempted rape of another victim); State v. Mitchell, 356 So.2d 974 (La.), cert. denied, 439 U.S.
926, 99 S.Ct. 310 (1978) (upholding the denial of a motion to sever in a case involving three rape
victims over a five-month period).

10

abuse of discretion. State v. Williams, 418 So.2d 562,
564 (La.1982). In ruling on such a motion, the trial court
must weigh the possibility of prejudice to the defendant
against the important considerations of economical and
expedient use of judicial resources. In determining
whether joinder will be prejudicial, the court should
consider the following:

whether the jury would be confused by the
various counts; whether the jury would be
able to segregate the various charges and
evidence; whether the defendant would be
confounded in presenting his various
defenses; whether the crimes charged would
be used by the jury to infer a criminal
disposition and finally, whether, especially
considering the nature of the charges, the
charging of several crimes would make the
jury hostile.

State v. Washington, 386 So.2d 1368 (La.1980) (citations
omitted).

H.A., Sr., 47 So.3d at 42. “A defendant alleging a prejudicial joinder of offenses

has a heavy burden of proof.” State v. Welch, 03-905, p. 5 (La.App. 5 Cir.

11/25/03), 864 So.2d 204, 208, writ denied, 04-171 (La. 2/4/05), 893 So.2d 88.

Cooley does not argue that there was a danger that the jury would

confuse the facts of the different offenses; Cooley points out no possible defenses

that were confounded by the joinder, and he does not argue that the joinder resulted

in the jury’s inferring that he had a criminal disposition.

Instead, Cooley maintains that he was prejudiced because the joinder

resulted in a hostile jury. Yet, the defense fails to point to any evidence that the

jury became hostile towards Cooley as a result of the charges against him.

Moreover, Cooley does not contest the sufficiency of the evidence introduced to

support his convictions, so Cooley is not asserting that jury hostility was the only

or primary reason for his convictions.

Accordingly, the trial court did not abuse its discretion in denying

Cooley’s claims that he was prejudiced by the joinder.

11

(4) Double Jeopardy

Cooley asserts that the trial court erred in allowing Counts four and

five to be billed as separate offenses and Cooley was subjected to double jeopardy.

Cooley alleges that both counts occurred during the same encounter and were,

therefore, not separated by time. Cooley also argues that the elements of sexual

battery constitute full proof of molestation of a juvenile; thus, Cooley was charged

twice for the same crime.

Louisiana has a dual test for double jeopardy. This court has

previously explained:

In Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932), the United States Supreme Court set
out the following test: “. . . 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 different offenses or only one, is
whether each provision requires proof of an additional
fact which the other does not.”

The other standard used by the courts is the “same
evidence test” as follows: “If the evidence required to
support a finding of guilty of one crime would also have
supported a conviction for the other, the two are the same
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 a conviction, not all of the
evidence introduced at trial.”

State v. Pierce, 01-94, p. 27 (La.App. 3 Cir. 10/31/01), 799 So.2d 732, 749, writ

denied, 01-3312 (La. 1/10/03), 834 So.2d 427 (citations omitted) (emphasis

added).

SAME TRANSACTION TEST:

Under the “same transaction” test, there is no double jeopardy where

there are two different offenses and where each provision requires proof of an

additional distinct element that the other does not. Louisiana Revised Statutes

14:43.1 defines sexual battery:

12

A. 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.

B. Lack of knowledge of the victim’s age shall not
be a defense. However, where the victim is under
seventeen, normal medical treatment or normal sanitary
care of an infant shall not be construed as an offense
under the provisions of this Section.

Molestation of a juvenile is defined by La.R.S. 14:81.2:

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.

The second circuit has determined that, under the same “transaction

test,” there is no double jeopardy for a dual conviction of sexual battery and

molestation of a juvenile because each requires proof of an element that the other

does not:

Sexual battery requires that the offender touch the victim
on the anus or genitals or the victim touch the offender
on the anus or genital. This element is not required for
aggravated incest/molestation of a juvenile. Conversely,
aggravated incest/molestation of a juvenile requires proof
that the defendant had specific intent of arousing or
gratifying the sexual desires of either person, an element
not included in sexual battery. Accordingly, convictions

13

for sexual battery and aggravated incest/molestation of a
juvenile do not constitute double jeopardy under
Blockburger.

State v. Redfearn, 44,709, p. 20 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, 1091,

writ denied, 09-2206 (La. 4/9/10), 31 So.3d 381.

This court adopts the second circuit’s reasoning and holds that in this

case, there is no double jeopardy under the “same transaction” test.

SAME EVIDENCE TEST:

The “same evidence” test depends upon the proof
required to convict, not the evidence actually introduced
at trial. Thus, if the evidence necessary to support the
second indictment would have been sufficient to support
the former indictment, double jeopardy prohibits the
second prosecution.

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

The Redfearn court also discussed the “same evidence” test in context

of sexual battery and molestation:

Application of this test is often difficult when the
allegedly separate offenses arise out of one event.

In State v. Bonfanti, 262 La. 153, 262 So.2d 504
(1972), the court sustained the defendant’s claim of
double jeopardy regarding a subsequent charge of
indecent behavior with juveniles stemming from the
same conduct for which he had been convicted of simple
battery on the same juvenile. In Bonfanti, the court noted
that the two charges arose from one occurrence. The
evidence used to support the defendant’s previous
conviction of simple battery was his use of intentional
force on the juvenile by putting his hands up her dress.
There was no additional evidence to support the
subsequent charge for indecent behavior; thus each
offense required the same evidence and subsequent
prosecution of the second charge was barred as double
jeopardy.

In State v. Steele, supra, [387 So.2d 1175
(La.1980),] the defendant was originally charged with
three offenses, including reckless driving, DWI, and
negligent injuring. He pled guilty to DWI and the charge
of reckless driving was dismissed. The state then
proceeded to prosecute Steele for negligent injuring.

14

When applying the “same evidence” test to the crimes of
DWI and negligent injuring, the Supreme Court looked at
the definitions of the two crimes, determined that the
same evidence would not be required to convict Steele on
both charges, and concluded that there was no double
jeopardy as to these two charges. However, when the
Steele court applied the “same evidence” test to the
charges of reckless driving and negligent injuring, it
concluded that the evidence to prove the second charge
(i.e., negligent injuring) would have been sufficient to
convict on the first charge (i.e., reckless driving). Id., at
1178. Thus, under the “same evidence” test a
prosecution of the negligent injuring charge would be a
violation against double jeopardy.

In State v. Sandifer, supra, [95-2226 (La. 9/5/96),
679 So.2d 1324,] the defendant was charged with
possession of marijuana and cocaine and possession of a
weapon while in possession of a controlled dangerous
substance. The defendant pled guilty to possession of
marijuana, and subsequently filed a motion to quash the
weapon charge. The Louisiana Supreme Court
determined that the evidence of the defendant’s alleged
possession of cocaine, for which he had not been
convicted, provided a proper basis to support his
prosecution under the weapon charge. Id., at 1330. The
evidence of the defendant’s possession of marijuana was
not required in order to convict him of the weapon
offense, because other evidence existed sufficient to
support the charge.

The circumstances in this case are analogous to
those in State v. Steele, supra, and State v. Sandifer,
supra. The evidence required for the conviction for
aggravated incest/molestation of a juvenile is not the
same evidence required for sexual battery. In this
instance, we have already concluded above that the
evidence was sufficient to show that Redfearn engaged in
a lewd and lascivious act by fondling himself in the
presence of his daughter with the specific intent of
gratifying himself. Indeed, the evidence required and
proven for this particular conduct is distinct from the
evidence of the conduct constituting sexual battery, that
is, the defendant’s rubbing of his penis on the victim’s
vagina. Additionally, aggravated incest required
evidence of the child’s relationship to the father by
blood, marriage or adoption which was not required for
the sexual battery conviction.

We therefore conclude that the defendant has not
been subjected to double jeopardy in this case.

Redfearn, 22 So.3d at 1091-92.

15

In this case, the sexual battery and molestation charges arise from

Cooley’s conduct when he was home alone with S.P. and her siblings. The series

of events began when S.P., her brother, Cooley’s son, and Cooley had been play-

wrestling in the living room. Cooley began handling S.P. in a manner that made

her uncomfortable, so S.P. left the living room and went into her bedroom to sleep.

The record shows that Cooley followed S.P. into her bedroom and sat

at the end of her bed. Cooley directed his son to lie down beside S.P., and Cooley

began rubbing S.P.’s stomach, blowing on it, and saying how hot S.P. was. Cooley

continued touching and blowing on S.P.’s stomach while he lifted up her shirt and

looked at her breasts. Cooley then began rubbing the inside of her thigh and

grazing her private area. Eventually, Cooley directed his son to kiss S.P.. After

Cooley’s son kissed S.P. on the lips, Cooley directed his son to kiss her again. S.P.

continued to pretend sleeping, but she rolled over onto her side in an attempt to get

Cooley to stop rubbing her inner thighs. While she was in that position, Cooley

unfastened her bra before waking her up and instructing her to get into her

pajamas. Cooley said they were leaving, so she got up and put on her night pants

and a sweatshirt.

When S.P. returned to bed, Cooley and his son came back into the

room. Cooley recommenced rubbing and blowing on S.P.’s stomach while

Cooley’s son, once again, lay down beside S.P.. This time Cooley’s son rubbed

S.P.’s stomach and breasts while Cooley also resumed rubbing S.P.’s inner thighs

and vaginal area with his hand on the outside of her clothing. S.P. feigned sleep

until they left.

The molestation of a juvenile charge arose from Cooley’s rubbing of

S.P.’s stomach and exposing her breasts, while the sexual battery charge resulted

from Cooley’s intentional touching of S.P.’s genitals. Therefore, as Cooley’s

convictions arose from two distinct sets of facts, Cooley’s convictions for both

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sexual battery and molestation of a juvenile do not constitute a double jeopardy

violation under the “same evidence” test.

(5) Special Jury Instructions

As part of his proposed jury instructions, Cooley requested special

instructions concerning the definition of “lewd and lascivious,” “force,” and “use

of force.” The trial court refused all three of the requested special jury

instructions.

If either the defense or the prosecution desires a special jury charge,

the trial court is required to include it, provided that it meets certain criteria:

The state and the defendant shall have the right
before argument to submit to the court special written
charges for the jury. Such charges may be received by
the court in its discretion after argument has begun. The
party submitting the charges shall furnish a copy of the
charges to the other party when the charges are submitted
to the court.

A requested special charge shall be given by the
court if it does not require qualification, limitation, or
explanation, and if it is wholly correct and pertinent. It
need not be given if it is included in the general charge or
in another special charge to be given.

La.Code Crim.P. art. 807.

SPECIAL INSTRUCTION ON “LEWD AND LASCIVIOUS”

Cooley requested the following special instruction:

“Finding that act is lewd or lascivious depends upon time, place, and

all circumstances surrounding its commission, including actual or implied intention

of actor.”

In State v. Sturdivant, 27,680, p. 6 (La.App. 2 Cir. 2/28/96), 669 So.2d

654, 658-59 (citations omitted) (emphasis added), the second circuit mentioned

that lewd and lascivious conduct should be construed within the context of facts of

the case:

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The word “lewd” means lustful, indecent and
signifies that form of immorality which relates to sexual
impurity carried on in a wanton manner. The word
“lascivious” means tending to incite lust, indecent,
obscene and tending to deprave the morals in respect to
sexual relations. Further, the word “lewd” is identified
with obscenity and community norms for morality.
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.

In order to be mandatory, the special jury charge must be pertinent

and require no further explanation. La.Code Crim.P. art. 807.

In this case, there was no possible legitimate excuse or explanation for

Cooley’s actions toward S.P. that would clear Cooley’s actions from the taint of

lust, indecentness, or sexual immorality. Cooley was an adult who deliberately,

intentionally, and inappropriately touched a teenager without her consent. This is

not the type of behavior that can be justified as an acceptable social interaction.

Further, as Cooley was not performing a medical examination, he was not acting in

any capacity that would justify his actions of viewing S.P.’s breasts or touching her

stomach, inner thighs, and vaginal area. Thus, the instruction was not pertinent to

this case. Additionally, because of its lack of pertinence, this special jury

instruction would have probably confused the jury and would have required

additional explanation.

SPECIAL JURY INSTRUCTION ON “FORCE”

Cooley also requested the following special instruction:

In Count 5 of the bill of information, the state has
charged the defendant with Molestation of a Juvenile, by
committing a lewd and lascivious act by use of force,
violence, duress, menace, psychological intimidation, or
threat of great bodily harm. This requires proof of
forcible means of overcoming the will or the resistance of
the victim in addition to any mere touching or minimum
effort exerted in performing the lewd act.

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As stated above, a special jury charge is only mandatory if it is

entirely correct. First, Cooley’s jury instruction was incorrect because he was only

charged with “the use of force, duress or psychological intimidation.” Therefore,

the inclusion of the factors “menace” and “threat of great bodily harm” was

incorrect. Furthermore, the requested jury charge was incorrect because the State

was not required to prove that the molestation happened by force as the bill of

information charged that the molestation occurred through use of force, duress, or

psychological intimidation.

SPECIAL JURY INSTRUCTION ON “USE OF FORCE”

Finally, Cooley requested the following special jury charge defining

“use of force:”

“Use of force” element of molestation of a juvenile refers
to use of a forcible means of overcoming will or
resistance of victim, requiring a use of force in addition
to any mere touching or minimum effort exerted in
performing lewd act against victim, which force is
substantially greater than or substantially different from
force necessary to commit offense of indecent behavior
with a juvenile.

This special jury instruction is also not entirely correct. It implies that

force is an essential element of indecent behavior with juveniles when “use of

force” is not even mentioned in La.R.S. 14:81. Therefore, the requested jury

instruction incorrectly stated that a use of force was “necessary to commit offense

of indecent behavior with a juvenile.”

(6) Opinion Testimony

Cooley argues that the trial court allowed improper rebuttal evidence

by allowing Mr. Greg Gill to testify after granting Cooley’s Motion in Limine on

the very subjects to which Mr. Gill testified. Cooley contends that the rebuttal

testimony stating Cooley’s stepdaughters were acting out sexually and that Cooley

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was grooming the girls for future sexual activity was improper because it

constituted an opinion, and Mr. Gill was not qualified as an expert witness. Cooley

advances that this defeated the purpose of the trial court’s prior ruling excluding

the testimony of an expert witness who was going to give the same testimony.

The State responds that the defense made no contemporaneous

objection on this basis during the direct or redirect testimony of Mr. Gill. Though

Mr. Gill testified twice, Cooley’s only objection during Mr. Gill’s testimony was

that a question had been asked and answered. Further, the State never asked Mr.

Gill about “grooming;” instead, the prosecution simply asked Mr. Gill why the

Department of Child and Family Services, “DCFS,” involved K.L. in this case, and

Mr. Gill responded that, based on Cooley’s history with the two older children,

DCFS was concerned that K.L. was being groomed for sexual abuse. Mr. Gill did

not elaborate or define “grooming,” and the State did not ask for any such

explanation.

The prosecution points out that Mr. Gill’s testimony about M.L. and

S.L.’s sexual acting out was not elicited by the State. Rather, the defense

specifically brought up the matter in cross-examination when it asked about

notations in the DCFS file about the girls’ sexual acting out. As it was the defense

that brought the matter to light, defense counsel, naturally, did not object to the

introduction of the information into evidence. Therefore, there is no basis for

Cooley’s complaint on appeal.

As argued by the prosecution, the testimony regarding M.L. and

S.L.’s sexual acting out was elicited by the defense. The State did not solicit this

testimony. Finally, even if the evidence were improperly admitted, the admission

was a harmless error because this testimony comprised an insignificant portion of

the total evidence against Cooley.

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IV.

CONCLUSION

For the reasons above, Terry L. Cooley’s convictions and sentences

are affirmed.

AFFIRMED.

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