The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-218
STATE OF LOUISIANA
VERSUS
DONALD ALAN CROOKS
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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 2020-455
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
36 3 a 9 ok ok 2 2k ok ok
VAN H. KYZAR
JUDGE
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Court composed of D. Kent Savoie, Van H. Kyzar, and Sharon Darville Wilson,
Judges.
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED.
Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Donald Alan Crooks
James P. Lemoine
District Attorney
Jimmy D. White
Assistant District Attorney
Thirty-Fifth Judicial District
P. O. Box 309
Colfax, LA 71417-0309
(318) 627-3205
COUNSEL FOR APPELLEE:
State of Louisiana
KYZAR, Judge.
Defendant, Donald Alan Cooks, appeals from his convictions and sentences
for three counts of sexual battery, one count of malfeasance in office, and one count
of filing or maintaining false public records. For the reasons set forth herein, we
affirm the convictions as to all counts and the sentences as to the convictions for the
three counts of sexual battery, and we vacate and remand to the trial court for
resentencing on the counts of malfeasance in office and filing or maintaining false
public records.
FACTS AND PROCEDURAL HISTORY
Defendant was charged by a bill of information with committing three counts
of sexual battery on the same victim, J.G.W., in violation of La.R.S. 14:43.1, all
occurring between November 21, 2019 and March 30, 2020.’ Within the same bill
of information, he was also charged with one count of filing or maintaining false
public records, in violation of La.R.S. 14:133, also occurring between November 21,
2019 and March 30, 2020, and one count of malfeasance in office in violation of
La.R.S. 14:134.’ Defendant was tried before a six-person jury beginning on June
20, 2022, and concluding on June 23, 2022, whereupon he was convicted as charged
by unanimous jury verdicts.
J.G.W. was the first to testify on behalf of the State at trial. She was employed
as a corrections officer for the Winn Parish Corrections Office at the time of trial but
was previously employed as a patrol officer for the Village of Creola (Creola). She
began working at that job November 21, 2019, and continued working until she was
discharged March 30 the following year. She worked directly under the supervision
' Pursuant to La.R.S. 46:1 844(W), the victims’ initials are used to protect their identities.
° The bill of information containing the final five counts on which Defendant was tried was
the third amending and supplemental bill of information.
of Defendant, who was Creola’s Chief of Police. She described her job duties as
protecting and serving the community, and traffic enforcement, which included
writing traffic citations. At the time she was hired, J.G.W. was not a trained law
enforcement officer, and at least through December 2019, she was not certified to
operate a traffic radar unit used for the issuance of traffic citations by law
enforcement officials. As of the time of trial, J.G.W. was still not a POST-certified
law enforcement officer.
During the month of December 2019, Defendant provided J.G.W. with blank
traffic citation forms used to issue traffic citations to violators, which he pre-signed
with his name, as Chief of Police, swearing to the legal basis of the citation, an event
which had not yet occurred. She testified that Defendant told her to use the pre-
signed ticket forms to go out and write traffic tickets while he was away. During the
trial, J.G.W. identified eleven such citations issued to various motorists in December
2019, that were pre-signed by Defendant but not witnessed by him. All eleven
tickets charged at least one count of speeding. She testified that although she utilized
the radar machine in identifying violators to whom the tickets were issued, she was
not certified to use the machine and was not certified until three months later while
still working for Creola.’ Defendant was not present to observe any of the violations
as he was away from work at a conference.
* “1 ouisiana Peace Officer Standards and Training Council (POST). POST was established
by Act 397 of 1976, as amended, to develop training standards for peace officers in the State of
Louisiana[]” with the “goal of ensuring that the citizens of Louisiana are provided with police
services of the highest quality.” Louisiana Commission on Law Enforcement and Administration
of Criminal Justice. https://Icle.la.gov/programs/post/(last visited on October 11, 2023).
“On cross-examination, Defendant presented a document to J.G.W. purporting to show
that she was certified by him in the operation of the traffic radar unit on December 14, 2019, though
she testified she did not recall being certified then. However, only three of the tickets were written
on or after December 14.
While J.G.W.’s working relationship started normally with Defendant, it
deteriorated when she began receiving inappropriate text messages from him. He
initially sent her a message asking her to attend a conference of Chiefs of Police in
Baton Rouge with him and to share a single room with one king-sized bed. J.G.W.,
who was married with four children at the time, testified that she never encouraged
Defendant in any way, particularly in any romantic or sexual way during her
employment nor did she indicate wanting to have any type of relationship with him
in that manner. After this and other text messages, Defendant’s advances became
physical.
The first such incident occurred towards the end of December 2019, when the
two were passing in the hallway of the office.” Defendant, according to J.G.W.,
made a comment about her butt looking big in the pants she was wearing, then as
she walked by, he grazed his hand across her buttocks. She testified that the act was
intentional. She testified that she was stunned by Defendant’s actions and told him,
“Stop, don’t do that.” This incident occurred shortly after she had received a text
message from Defendant on December 22, 2019, wherein, after learning that she
was alone at the office participation in on-line sexual harassment awareness training,
he told her that “he needed be there so he [could] sexually harass” her.
The next incident occurred in February of 2020, when J.G.W. was smoking a
cigarette outside the office and was locking the office door behind her. She testified
that she thought defendant had already gone from the office but as she was locking
the door, Defendant came up behind her, grabbed her with one hand by her ponytail,
pushed her over a railing, and with his other hand, “he went above, not under my
> This incident did not form the basis for the counts in the bill of information as it was
arguably a misdemeanor grade of sexual battery pursuant to La.R.S. 14:43.1.1. However, this
testimony was elicited without objection from Defendant.
clothes, but on top of my clothes, .. . and touched my top part of my vagina.” She
stated that he also “thrusted [sic] his genitals to my buttocks.” J.G.W. testified that
she in no way consented to Defendant’s actions that day and that when this incident
a9
occurred, she told him, “Stop, don’t do this. Leave me alone.” On hearing this,
Defendant just “laughed it off and left.”
J.G.W. testified that the next incident occurred when she was at the office
mailbox, inside the office where each officer had a box. As she reached in hers to
get her mail, Defendant “came up behind me, and with one hand grabbed my breast,
and with the other hand thrusted [sic] me towards him.” She stated that “[h]is other
hand was very low on the top part of my vagina.” On cross examination, J.G.W.
explained to the jury exactly where Defendant touched her, and when asked if
Defendant “reaches around and grabs your genitals with the other hand[,]” she
replied, “Just the top, yes.” She testified as to her reaction stating, “get off me, and
I went straight out the door and got in my unit, and left.”
J.G.W. testified as to another occasion where she had gone to the bathroom:
“whenever I came out the bathroom door, and I was . . . he was standing right there.”
This occurred approximately a week before she was laid off from her job at the end
of March 2020. She testified that Defendant “walked and pushed me into the
bathroom, and luckily the door did not close all the way because I was trying to get
around him to get out of the bathroom door.” He then “grabbed my shirt like this,
and he took his hands and he slipped it inside my pants[]” and touched the “top part
of my vagina.” She stated that as a result of this incident, she “got more aggressive
with him, and I told him that would be the last time he would ever put his hands on
me.” She elbowed him in his chest and shoulder area to extricate herself and get out
° During this portion of the transcript, the court reporter indicated that J.G.W. was crying
while giving her testimony.
of the bathroom. She again testified that she in no way consented to Defendant’s
actions and that she felt violated as a result. She left work and went home.
Afterwards, she contacted Creola’s town clerk, and the two of them reported that
incident and the others to Creola’s mayor, Danny Moore. She testified that Creola’s
city attorney, Brian Mosely, became involved and sent a letter to the sheriff, but she
was then terminated from her job in March 2020. She testified that Defendant told
her she was being let go because of the effects of the coronavirus epidemic that were
ongoing at the time.
J.G.W. also testified that during the course of the incidents, she contacted a
friend and confidant, Detective Ryan James of the Grant Parish Sheriff's
Department, not to file a formal complaint but for professional advice. She stated
that she was the only one in her household working at the time and desperately
needed her job. She testified that Detective James advised her to keep a record of
the inappropriate behavior and to begin searching for another job.
Mr. Mosely testified that he is an assistant district attorney in Rapides Parish
and Creola’s city attorney. He stated that his job responsibilities as such are to advise
the mayor and town council on legal questions and to serve as the prosecutor in
municipal court for Creola. He knows Defendant as the Chief of Police of Creola.
He testified concerning the traffic tickets forming the basis for the filing or
maintaining false public documents charge against Defendant, stating the
importance of the signature of the complaining officer in the following colloquy:
A. [A] traffic ticket ... it’s kind of ...a form that... police officers
use for traffic patrol, that they observe someone committing
some type of traffic offense then they have the option of issuing
a ticket to the [offense].
Q. Okay. And is uh, is there anything, any kind of uh, particular
reason they use a particular type of form?
” The Oath of Office signed by Chief Crooks was introduced into evidence.
A. — Well so it will be uh, a so it would be uniform.
Q. Okay.
So it will be the same uh, you don’t want any discrepancies um,
you know we want to make sure uh, certainly for the purpose of
the municipal court that um, everything is being run legitimately.
Q. Okay, and so uh, is it fair to say those - - those complaints are
described as an affidavit?
A. Yes, it’s an affidavit um, and it can be used to institute
prosecution uh, just like a Bill of Information which I would--if
I were to have a file come to me as a prosecutor and uh, decide
to charge somebody with a crime, then I would do so in what's
called a Bill of Information.
Q. Right.
And uh, it can be that charging instrument can also be in the form
of an affidavit such as a traffic ticket.
Q. Okay, and is that allowed on, I guess lessor types of uh, crime or
lessor types of offenses, ...
A. Right.
Q. _... 1s that correct?
A. — Right, right, typically your um, what we call the Title 32 offenses
which is where you find your traffic offenses and some of the
minor misdemeanors and felonies can be charged that way as
well.
Q. Isee. And so um, under Title 32 there-- is there any importance
of the form being an affidavit form? Is there reason [sic] why a
ticket as a charging instrument is in affidavit form?
A. Um, yes, because um, if it is in the affidavit form then the - - the
officer that is issuing the citation is um, saying under oath that
this is what happened.
After Mr. Mosely learned of the discrepancies with Defendant’s signatures on
the tickets, he dismissed those tickets that had not been paid, explaining that he did
so for a number of reasons, including the need to maintain the integrity of the court,
because the tickets not signed under oath were not proper charging instruments, and
because Defendant’s failure to comply was in effect untruthful statements to the
court.
Mr. Mosely was also contacted by Mr. Moore concerning the sexual battery
allegation against Defendant by J.G.W. As a result of this information, he turned
the potential criminal investigation over to the Grant Parish Sheriff's Department
via a written letter to the sheriff.
Holly Brashear, a contractor for the United States Marshall Service at the time
of trial, testified that she had previously been employed as Creola’s town clerk. Her
job duties as clerk included intaking tickets for Creola’s patrol officers, signing off
on them, and putting them into the system. In addition, she was responsible for
taking minutes from meetings and sending them for publication, receiving tax
collections, and paying Creola’s bills. She began working in that capacity in October
2019, and Defendant was the Chief of Police at the time. When asked on direct
examination if she had seen or witnessed any kind of inappropriate actions between
Defendant and J.G.W. during her employment, she replied, “Yes, sir.”
After testifying about overhearing several inappropriate sexual comments
made by Defendant towards J.G.W., Ms. Brashear stated:
Uh, there was one incident of she was getting out of the cop car,
uh, she just got back to the office. Martin Shaw just received Blue,
getting ready for him to go to canine training, and she was trying to get
out of the car, and Don had opened the door for her, and she asked him
to move, and he would not move. She went to get out of the cop car,
when she did, he grabbed this side and went across right on her boobs,
like you could see them physically move.!”!
The letter was introduced as an exhibit for the State.
” This incident did not form the basis of the felony sexual battery charges but was testified
to without objection from Defendant.
She testified that J.G.W. reacted to this incident by telling Defendant to
“please f...... stop[,]” in reaction to which Defendant simply “joked it off, and said
I was just picking with you.”
Ms. Brashear recalled another incident:
They were leaving one day um, he went to lock the office up, and
she said hold on, wait a minute, I forgot something and when she went
to grab he was holding the door open with his left hand like this, and
she went under his arm, and he grabbed her butt like firmly. She turned
around and said, don’t do that.!'"!
Ms. Brashear recounted an incident directly involving her being
inappropriately touched by Defendant:
Um, I came in, it was November, I came in, my husband was in
the hospital, my husband suffers with Ulcerative Colitis and a liver
disease that can kill him. He was in the hospital, I came here, I was
crying and upset. I asked him ifhe had coffee ready, and he asked what
was wrong, and he was coming around the desk to get some more
coffee. He asked me, what was wrong, and I toid him that, you know,
Kevin was in the hospital, and everything else, and he gave me a hug,
and said well it’s going to be all right, girl, and when he went to let go,
he slid his hand down my back and grabbed my butt, and pulled me in,
and I pushed him away immediately and said you don’t f...... touch me
like that.
Ms. Brashear also recalled an incident in March 2020, wherein she observed
J.G.W. hastily departing the police station, in uniform. “She was very mad, upset,
her face was really red, and she was crying, her eyeliner was running.” Ms. Brashear
testified that it was very apparent to her that something had happened to J.G.W. that
had upset her. While she testified that J.G.W. told her what had happened leading
to her leaving the office in this state, without reciting the conversation in her
testimony, she responded that J.G.W.’s reaction that day was consistent with her
allegations of inappropriate conduct by Defendant. When asked later in her direct
examination if Defendant ever told her during any conversation that he wished to
'° This incident did not form the basis of the felony sexual battery charges but was testified
to without objection from Defendant.
have a romantic relationship or any kind of physical relationship with J.G.W., she
replied, “Yes, sir.” She recalled that Defendant stated to her that he invited J.G.W.
to go to the Chief's Conference, and that there was only one bed and one room for
them to stay in together.
When asked if she was familiar with the tickets that had been pre-signed by
Defendant, Ms. Brashear stated, “[Defendant] had pre-signed the tickets, the book
of tickets before he went out of town because Ms. Goss, Julie Goss and [J.G.W.]
were not radar certified yet so therefore, they were not able to write tickets.” When
asked if she had any reservations about notarizing the tickets Defendant had pre-
signed when they were returned fully filled out, she stated, “I did at first because I
went through - - I went ahead and notarized them, but as I went through, | realized
the dates and the dates didn’t add up to when [Defendant] was in town.” She testified
that this caused her concern, and as a result, she contacted the mayor, who advised
her to contact Mr. Mosely, which she did.
Detective James testified that he had personally known J.G.W. since 1999,
and that their relationship was of a professional nature. She would consult with him
occasionally if she had questions. In February or March 2020, she contacted him
for advice because “[s]he had been having some issues uh, what I would describe as
harassment or non-ethical behavior with her boss.” He testified that he gave her
advice as to how to handle the situation. He stated that at the time, J.G.W. did not
want to file formal criminal charges. Detective James “told her if she wasn’t going
to file a criminal complaint that she needed to either document it, what, you know,
what further actions or contact the State Police because he is an elected official.”
Detective James was also asked on direct examination if he had issued traffic
citations in his past law enforcement experience, and he replied affirmatively. He
testified that he was, in fact, certified in the operation of radar units used for traffic
enforcement. He went on to describe the importance of the officer who observed
the violation being the one to sign the citation under oath. He stated that the citation
is made under oath and that “[w]hen you sign the affiant line you’re stating that you
issued that citation, and you’re proving as far as when it goes to court that you’re the
one who issued that ticket.”
Bradley Suddeth, Grant Parish Sheriff's Department’s former Chief
Detective, testified. He had retired from his position shortly before the start of the
trial. During his employment, he was charged with investigating the allegations
against Defendant after meeting with Sheriff Steve McCain, who provided him with
a letter written by Mr. Mosely, outlining his knowledge of the inappropriate sexual
advances by Defendant towards Creola’s employees. As a result of his investigation,
he ultimately prepared an arrest warrant charging Defendant.
Defendant called William Mattix, the Assistant Chief of Police for Creola, to
testify. He was asked about the propriety of issuing pre-signed traffic tickets by
Defendant’s counsel, as follows:
Q. _ I present the witness with the uh, tickets that has been previously
introduced into evidence. I’m asking you to review those. Uh,
can you tell who issued those tickets?
A. Well it appears that Chief Crooks, and [J.G.W.] would have
issued those tickets.
And why do you say that?
Because Chief Crooks is the signing officer, and then [J.G.W.]
initial’s [are] above his number.
Q. Okay, uh, was that a common practice in the Town of Creola
during training for the ticket to be signed that way?
A. _ Yes, sir, I mean, it’s uh, that - - I don’t see nothing [sic] wrong
with that.
Q. In other words the initials of the person issuing the ticket do
appear on the ticket?
10
A. — Correct.
Q. — And where do those initials appear?
A. Uh, the Chief was getting her apparently to put them above his
name, his uh, CR number, his data number.
Q. Okay, so on all these tickets uh, an initial is placed to indicate the
name of the officer?
A. Well this just tells me that two (2) officers was [sic] there with
the - - on the stop and issued the violation.
However, on cross-examination, he was questioned about the propriety of the
signing officer having not witnessed the actual violation:
Q. Right, but what if you wanted that officer to work while you
weren’t there?
A. — Then they could work.
Q. | understand, but what if they can’t run radar because they’re not
certified, but you want them on the road because you wanted the
money to come in. Would you then decide to put your name on
the affiant line, and - - and make up a false document about you
being the one that observed the conduct that caused that ticket?
Would you do that?
A. No, sir, I wouldn’t do that.
Q
... Because it’s - - to put your name down as the affiant that you
observed the conduct, and if you didn’t observe the conduct then
basically you’re swearing to something under oath that you didn't
do. Would you agree to that?
Yes, sir, ] would.
Okay. Is an oath important to you?
Yes, sir.
QO FF O
All right, would swearing to something under oath if it wasn’t
true, would that be important to you?
>
Yes,
Would that be in fact a felony?
Q
A. It could be.
Il
Assistant Chief Maddix was questioned on cross examination about whether
he knew that the initials “JW” written on the thirteen citations were actually placed
there by Ms. Brashear, and he stated he assumed they were those of J.G.W. He
further explained the process of filing the original traffic ticket with the clerk, that
the tickets were part of a set that had four duplicates, and that at least one duplicate
was maintained as part of the police department records, and another duplicate was
maintained by the issuing officer.
At the conclusion of the trial, Defendant was found guilty of all counts. On
November 3, 2022, Defendant was sentenced to eighteen months at hard labor on
each of the three counts of sexual battery, the sentences to run concurrently with
each other and consecutively with the sentences for the sexual battery convictions.
In connection with the sexual battery convictions, Defendant was ordered to register
as a sex offender for a period of fifteen years. For the conviction for filing false
public records, Defendant was sentenced to two years at hard labor, which sentence
was suspended, and Defendant was ordered to be placed on supervised probation for
two years, beginning at his release from incarceration. In addition, he was ordered
to pay a fine of $2,500.00 and to pay restitution to the persons who were wrongly
cited for traffic violations within Creola during the dates of the offense. Finally,
Defendant was sentenced to two years at hard labor for the malfeasance in office
conviction, which sentence was also suspended, with Defendant being placed on
supervised probation for a period of two years following his release from
incarceration. The latter two sentences were ordered to run concurrently.
'' Defendant thereafter called other witnesses, none of which testified to any direct
knowledge of the charges or the underlying basis thereof.
12
Following his conviction, Defendant filed a motion for new trial, which was
considered by the trial court on October 13, 2022, and denied. A motion to
reconsider sentence was filed on November 30, 2022, and denied the same day. This
appeal followed, wherein Defendant asserts the following assignments of error:
1. The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)[,] standard, was insufficient to prove beyond
a reasonable doubt that Donald Alan Crooks committed any of
the three felony sexual batteries as set forth in counts one through
three of the Third Amended Bill of Information.
2. The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)[,] standard, was insufficient to prove beyond
a reasonable doubt that Donald Alan Crooks committed the
offense of filing or maintaining false public records.
3. The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)[,] standard, was insufficient to prove beyond
a reasonable doubt that Donald Alan Crooks committed
malfeasance in office.
4. The sentences imposed on the three counts of sexual battery are
a violation of the Eighth Amendment of the Constitution of the
United States and La. Const. Art. I, § 20, as they are nothing more
than cruel and unusual punishment and, thus, excessive as
Donald Crooks’ health has severely deteriorated since his arrest,
limiting his ability to walk or communicate with others and
requiring substantial assistance.
5. The trial court committed manifest error when it denied the
defense’s motion in limine and permitted the State to offer
testimony concerning another alleged improper touching which,
if proven, would have been a misdemeanor grade offense, as the
alleged bad act was irrelevant and highly prejudicial to Donald
Crooks.
6. Counsel for Donald Crooks failed to perform to the standard
required by the Sixth Amendment to the United States
Constitution when he failed to seek the severance of the three
sexual battery counts from the remaining two counts and when
he failed to seek to quash count five of the Third Amended Bill
of Information.
13
7. A double jeopardy violation occurred when Donald Crooks was
convicted of malfeasance in office and the underlying offenses
used to prove the malfeasance allegation.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that there
is one error patent.
The trial court sentenced Defendant on the filing false public records
conviction to two years at hard labor, suspended, and it placed him on two years of
supervised probation. The probation was subject to the general conditions of
La.Code Crim.P. art. 895, as well as special conditions including, but not limited to,
a fine of $2,500.00 and court costs. Additionally, Defendant was ordered to pay
restitution to the drivers who received tickets that were pre-signed by Defendant and
“not refunded by the Village.” Thereafter, the trial court stated:
The Court will allow Mr. Crooks to and proba - - and the State an
opportunity to have a restitution hearing if the Court needs to determine
the amount of that restitution as well. The Court will set the time frame
for the payment of any restitution at that hearing if it is not agreed upon
by the various uh, the Defendant and the State.
For the malfeasance conviction, Defendant was sentenced to serve two years at hard
labor, suspended. He was placed on two years of supervised probation with all the
conditions imposed for filing false public records also being imposed for the charge
of malfeasance in office. The trial court added, “the two (2) year sentences and the
probation are concurrent with each other.”
We find that the trial court erred in failing to set the amount of restitution it
ordered to be paid to the drivers “who received tickets that were pre-signed by
[Defendant] that were not refunded by the Village.”
In State v. Alexander, 03-167, p. 3 (La.App. 3 Cir. 9/10/03), 854 So.2d 456,
458-59, writ denied, 03-2822 (La. 3/12/04), 869 So.2d 815, this court stated:
14
As a condition of probation, the Defendant was ordered to pay a
monthly supervision fee and to make restitution to the city of Jeanerette
for the expenses incurred as a result of the crime, in an amount to be
determined by the Defendant and his probation officer. The judge
stated he would hold a hearing and determine the amount of restitution
only if the Defendant and his probation officer did not agree on the
amount to be paid.
The first error patent concerns the failure of the trial judge to
establish the amount of restitution to be paid by the Defendant. This
resulted in an illegal sentence. In State v. Dauzat, 590 So.2d 768, 775
(La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992), this court
stated:
When a sentencing judge orders a defendant to
make restitution to the victim, both La.C.Cr.P. arts.
895(A)(7) and 895.1 require the court, and not the
probation officer, to determine the amount of restitution.
Because the court failed to determine the amount of
restitution owed as a special condition of probation, the
defendant’s sentence is illegal. State v. Hardy, 432 So.2d
865 (La.1983). State v. Rogers, 517 So.2d 428 (La.App.
Ist Cir.1987).
This error cannot be corrected by an appellate court. Therefore,
defendant’s sentence must be reversed with the case to be remanded for
resentencing. Upon resentencing, the judge must determine the amount
of money taken by the defendant which was not covered by insurance.
Restitution for this loss may be ordered pursuant to either La.C.Cr.P.
arts. 895 or 895.1.
Therefore, the Defendant’s sentence is vacated and the case
remanded for resentencing.
In State v. Fussell, 06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, rev’d on
other grounds, 06-2595 (La. 1/16/08), 974 So.2d 1223, restitution was imposed
pursuant to La.Code Crim.P. art. 883.2 as part of the defendant’s principal sentence.
This court found the trial court’s failure to set the amount of restitution rendered the
defendant’s sentence indeterminate. In sentencing the defendant, the trial court
stated:
I’m also gonna [sic] order you to pay all restitution
involved with respect to—if there is any—TI order you to
pay for any and all medical counseling and health
expenses incurred by the victim or her family, as a
consequence of your conviction for these offenses. That’s
15
also gonna [sic] be—it’s an indetermined amount, it’s just
gonna [sic] be generally made in the judgment. I don’t
know what it’s gonna [sic] be. I don’t even know if the
State’s gonna [sic] make an application for that.
And I’ve already ordered you to pay for any and all
medical counseling or other health expenses incurred by
the victim or her family as a consequence of your
commission of those particular offenses in that case.
Id. at 139.
This court vacated the defendant’s sentences and remanded for resentencing,
noting that if restitution was imposed by the trial court, it must specify the amount.
The supreme court agreed with this portion of this court’s ruling, stating:
We agree with the Third Circuit Court of Appeal that, due to a
nonspecific restitution order, the sentences imposed upon Defendant by
the trial court were indeterminate and, thus, invalid. See La. C.Cr.P.
art. 879 (stating that “[i]f a defendant who has been convicted of an
offense is sentenced to imprisonment, the court shall impose a
determinate sentence”); La.C.Cr.P. art. 883.2. Accordingly, this case
must now be remanded for resentencing on all convicted counts.
Fussell, 974 So.2d at 1238 (alteration in original) (footnote omitted).
Accordingly, Defendant’s sentences for filing false public records and
malfeasance in office are vacated and the case is remanded for resentencing. If
restitution is ordered following such hearing the trial court is to comply with the
requirements of La.Code Crim.P. art. 875.1 before doing so."
2 Effective August 1, 2022, prior to Defendant's November 3, 2022 sentencing, La.Code
Crim.P. art. 875.1 requires the sentencing court to determine at a hearing whether payment in full
of the aggregate amount of all financial obligations imposed upon the defendant including fines,
costs, and restitution would cause substantial financial hardship to the defendant or his dependents,
and gives the court the discretion to waive all or a portion of such obligations on compliance with
its provisions thereof.
16
DISCUSSION
DOUBLE JEOPARDY
In assignment of error number seven, Defendant claims that a double jeopardy
violation occurred when he was convicted of malfeasance in office and the
underlying offenses used to prove the malfeasance allegation, including sexual
battery and/or filing or maintaining false public records. We address this assignment
of error first as it raises a jurisdictional issue. See, e.g., State v. Toby, 22-386,
(La.App. 3 Cir. 3/8/23), 358 So.3d 289, n.1 (citing State v. Sarrabea, 12-1013
(La.App. 3 Cir. 5/1/13), 157 So.3d 1, aff'd, 13-1271 (La. 10/15/13), 126 So.3d 453).
While Defendant failed to file a motion to quash the bill of information based
on double jeopardy in the trial court, the issue is properly before this court as double
jeopardy may be raised at any time, including for the first time on appeal. State v.
Austin, 04-993, (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 05-830 (La.
11/28/05), 916 So.2d 143; State v. Jenkins, 45,873, (La.App. 2 Cir. 1/26/11), 57
So.3d 405.
The Fifth Amendment to the Constitution of the United States provides that
no person shall “be subject for the same offence to be twice put in jeopardy of life
or limb.” Similarly, in Louisiana, “No person shall be twice placed in jeopardy for
the same offense, except on his application for a new trial, when a mistrial is
declared, or when a motion in arrest of judgment is sustained.” La.Const. art. 1, §
15.
The Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52
S.Ct. 180, 182, (1932), pronounced the test for determining whether the double
jeopardy clause has been implicated, by examining the elements of the offenses:
Each of the offenses created requires proof of a different element.
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
17
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not. Gavieres v.
United States, 220 U. 8. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and
authorities cited. In that case this court quoted from and adopted the
language of the Supreme Court of Massachusetts in Morey v.
Commonwealth, 108 Mass. 433: “A single act may be an offense
against two statutes; and if each statute requires proof of an additional
fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment
under the other.”
The basis of Defendant’s double jeopardy argument to this court is that his
convictions were based upon the same evidence. He contends that the State relied
on the underlying evidence proving the sexual batteries and filing false public
records as the evidence proving the malfeasance in office charge. By analogy,
Defendant asserts that “[s]imilar to the felony murder doctrine, when the underlying
felony or intentional misdemeanor must be proven to establish a necessary element
of the offense, a defendant cannot be convicted of both.” As such, Defendant asserts
his conviction and sentence for malfeasance in office should be vacated based on
double jeopardy as it is the lesser of the offenses. On the other hand, the State
emphasizes that the supreme court dispensed with the “same evidence test” in
analyzing double jeopardy claims, citing State v. Frank, 16-1160 (La. 10/18/17), 234
So.3d 27.
In Frank, our supreme court made “clear that the protections against double
jeopardy mandated by the federal constitution, as restated in this state's constitution,
fall within the analytical framework set forth in Blockburger, and Louisiana courts
need only apply that framework in analyzing questions of double jeopardy.” Frank,
234 So.3d at 33-34. There, the supreme court reversed a decision by this court
wherein we had reversed the defendant’s conviction for attempted felony carnal
knowledge of a juvenile which was also the underlying basis for his conviction for
malfeasance in office. See State v. Frank, 15-893 (La. App. 3 Cir. 5/25/16), 192
18
So.3d 888. Abrogating the “same evidence test” formerly applied by Louisiana
courts in analyzing double jeopardy challenges, the supreme court found that no
double jeopardy violation occurred in that case and reinstated the defendant’s
conviction and sentence for attempted felony carnal knowledge of a juvenile along
with his conviction for malfeasance in office “[b]ecause no double jeopardy
violation is apparent here under Blockburger|.]” Frank, 234 So.3d at 34.
The same analysis applied in Frank is equally applicable here, as is the result.
Malfeasance in office requires proof of different and additional elements than the
underlying offenses of sexual battery and filing or maintaining false public records.
For example, malfeasance in office requires proof that the offender was a public
officer. No such showing is necessary to find Defendant guilty of sexual battery,
nor is this element necessary to prove filing or maintaining false public records.
Accordingly, we find that no double jeopardy violation occurred here.
SUFFICIENCY OF THE EVIDENCE
In his first three assignments of error, Defendant argues that the evidence
introduced at the trial, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979), standard, is insufficient to prove beyond a reasonable doubt that
he committed any of the three felony sexual batteries or that he committed the
offense of filing or maintaining false public records and malfeasance in office. Our
analysis for insufficiency of evidence claims on appeal is well settled and was set
forth by this court in State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695
So.2d 1367, 1371, as follows:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
19
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.
We will address each of the first three assignments of error as to the particular
convictions separately.
Three Counts of Sexual Battery
In assignment of error number one, Defendant maintains that the evidence
introduced at the trial is insufficient to prove beyond a reasonable doubt that he
committed any of the three felony sexual batteries on J.G.W. As is relevant here,
sexual battery is defined as “the intentional touching of the anus or genitals of the
victim by the offender using any instrumentality or any part of the body of the
offender, directly or through clothing, when the offender acts without the consent of
the victim.” La.R.S. 14:43.1(A)(1). “Whoever commits the crime of sexual battery
shall be punished by imprisonment, with or without hard labor, without benefit of
parole, probation, or suspension of sentence, for not more than ten years.” La.R.S.
14:43.1(C)(1).
Sexual battery requires the existence of general intent. State v. Bourque, 09-
1092 (La.App. 3 Cir. 4/7/10), 33 So.3d 1092. “General criminal intent is present
whenever there is specific intent, and also when the circumstances indicate that the
offender, in the ordinary course of human experience, must have adverted to the
prescribed criminal consequences as reasonably certain to result from his act or
failure to act.” La.R.S. 14:10(2).
20
In his brief, Defendant argues that the evidence was insufficient because
J.G.W.’s allegations that he committed sexual batteries on unspecified dates were
not detailed and were uncorroborated by other evidence. Referencing the text
messages admitted into evidence, he claims the messages reveal that the relationship
with J.G.W. “went beyond an employee/employer” but do not reveal “any animosity
J.G.W. had toward [him]” resulting from any inappropriate behavior. He attempts
to cast doubt upon the allegations by observing that J.G.W. received a “Positive
Discipline System Coaching Form” by Defendant on February 7, 2020, which
contained three disciplinary incidents regarding her job performance: a traffic stop
where she failed to identify the driver, failed to request the registration and
insurance, and allowed the driver to leave with a verbal warning; an improper cuffing
of an individual; and an improper usage of her police car. Additionally, Defendant
notes that J.G.W. did not make a report until the week after she was laid off from the
Creola Police Department (CPD). Defendant concludes that “[t]here was strong
motivation for J.G.W. to fabricate allegations against [Defendant], who questioned
her integrity and laid her off.”
It is the factfinder’s role to weigh the respective credibility of the witnesses,
and the reviewing court will not second-guess the credibility determinations of the
factfinder beyond the sufficiency evaluations under the Jackson standard of review.
State v. Richardson, 425 So.2d 1228 (La.1983). Similarly, though Defendant argues
a lack of independent, direct evidence supporting J.G.W.’s testimony, “Louisiana
jurisprudence has consistently held that the testimony of the victim alone can be
sufficient to establish the elements of a sexual offense, even if there is no physical
evidence.” State v. Leyva-Martinez, 07-1255, pp. 6-7 (La.App. 3 Cir. 4/30/08), 981
So.2d 276, 282, writ denied, 08-1200 (La. 1/30/09), 999 So.2d 747. Such testimony
is sufficient even when there is no medical, scientific, or physical evidence. State v.
21
Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App. 2 Cir. 04/08/98),
711 So.2d 808, writ denied, 99-331 (La. 07/02/99), 747 So.2d 8.
In this instance, there was sufficient direct evidence from which the jury could
have found Defendant guilty of all three sexual batteries. J.G.W. testified about
three separate incidents where Defendant inappropriately touched her. J.G.W.
testified that while she was outside of the CPD on the porch one day, Defendant
came up behind her and grabbed her by the ponytail, pushed her on the railing, and
touched her vagina with his hand on top of her clothes. Defendant thrust his genitals
into her buttocks as he touched her vagina. When she was in the mailroom at the
CPD another day, Defendant came up behind her, grabbed her breast with one hand,
and touched her vagina with his other hand. J.G.W. testified that while she was
leaving the bathroom at the CPD, Defendant forced his way into the bathroom and
reached his hand inside her pants to touch her vagina. J.G.W. stated that all the
touches were non-consensual and were at the top of her vagina with two of the
touches occurring outside of her clothing and one inside her clothing. Neither
penetration nor disrobing are elements of sexual battery. State v. Guidry, 95-254
(La.App. 3 Cir. 11/2/95), 664 So.2d 698.
J.G.W.’s unequivocal testimony that Defendant touched her vagina on three
occasions establishes the crimes of sexual battery. Because credibility
determinations are the sole province of the factfinder, the jury was free to accept
J.G.W.’s version of the facts as credible. Having accepted J.G.W.’s testimony alone,
any rational trier of fact could have found beyond a reasonable doubt that Defendant
was guilty of the sexual offenses for which he was convicted. This conclusion is
bolstered by the fact that J.G.W.’s testimony was corroborated to varying degrees
by the testimony of Ms. Brashear, Mr. Mosely, and Detective James. Accordingly,
we find that the evidence presented, when viewed in the light most favorable to the
22
State, was sufficient to sustain the jury’s verdicts of guilty as to each of the three
counts.
Defendant’s argument in brief that J.G.W.’s use of the terms vagina, vaginal
area, and butt fail to satisfy the elements of La.R.S. 14:43.1(A)(1), is not persuasive
in the least. Vagina, vaginal area, and butt more than adequately describes and
represent “anus or genitals” given the ordinary understanding of the words.
Defendant’s argument here would call! into question countless similar convictions
involving juvenile victims wherein descriptors such as “weenie,” “booty,” and
“private” referring to genitals and buttocks are common. State v. Redfearn, 44,709,
p. 7 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, 1085, writ denied, 09-2206 (La.
4/9/10), 31 So.3d 381. This court affirmed the conviction of the defendant for sexual
battery in State v. Lowe, 08-669, p. 15 (La.App. 3 Cir. 12/10/08), 999 So.2d 194,
204, writ denied, 09-54 (La. 9/25/09), 18 So.3d 80, where a juvenile victim testified
that he touched her “kitty,” meaning her vagina, and in a taped interview, informed
a detective that the defendant put his finger in her “cat.”
Filing or Maintaining False Public Records
In his second assignment of error, Defendant asserts that the evidence
introduced at trial, when viewed under the Jackson standard, was insufficient to
prove beyond a reasonable doubt that he committed the offense of filing or
maintaining false public records. In brief, Defendant argues that the evidence was
insufficient to prove that he filed false records because the evidence offered at trial
did not prove that the traffic tickets were false or that they contained fraudulent
information of a material nature, and further that the evidence was insufficient to
prove that Defendant filed them with Creola’s town clerk. We disagree, finding that
the evidence sufficiently proved all elements necessary for the conviction.
23
Filing or maintaining false public records, in violation of La.R.S. 14:133, is
defined in relevant part as:
A. Filing false public records is the filing or depositing for
record in any public office or with any public official, or the
maintaining as required by law, regulation, or rule, with knowledge of
its falsity, of any of the following:
(1} Any forged document.
(2) Any wrongfully altered document.
(3) Any document containing a false statement or false
representation of a material fact.
“Whoever commits the crime of filing false public records shall be imprisoned for
not more than five years with or without hard labor or shall be fined not more than
five thousand dollars, or both.” La.R.S. 14:133(C)(1).
The language in the third amended bill of information used the language in
La.R.S. 14:133(A)(3), and the jury was instructed as such. The elements of the crime
of filing or maintaining false public records are: “(1) the defendant files or deposits
for record in any public office or with any public official, (2) with knowledge of its
falsity, (3) any document containing a false statement or false representation of a
material fact.” State v. Odom, 07-516, p.5 (La.-App. 1 Cir. 7/31/08), 993 So.2d 663,
667. “[{Louisiana Revised Statutes] 14:133 does not require that the record filed be
‘public’ but that it must be filed or deposited, with knowledge of its falsity, ‘in any
public office or with any public officer.’” State v. Morris, 05-725, p. 7 (La.App. 3
Cir. 12/30/05), 918 So.2d 1107, 1111 (alteration in original) (quoting State v. Salat,
95-72, p. 5 (La.App. | Cir. 4/4/96), 672 So.2d 333, 337, writ denied, 96-1116 (La.
10/4/96), 679 So.2d 1378).
Pursuant to La.R.S. 32:398.1(A)(1), (2), “[aJll traffic enforcement agencies in
this state shall provide traffic citations in appropriate form containing notices to
appear” on approved citation forms or by approved e-tickets. “The chief
24
administrative officer of each traffic-enforcement agency shall issue these books,
maintain a record of each book and each citation contained therein . . . and shall
require and retain a receipt for each book issued.” La.R.S. 32:398.1(B). La.R.S.
32:398.2 (A) provides in pertinent part:
Each traffic enforcement officer upon issuing a traffic citation to
an alleged violator of any provision of the motor vehicle laws of this
state or of any traffic ordinance of any city or town shall deposit the
original citation or a copy of such traffic citation with a court having
jurisdiction[. |
Louisiana Revised Statutes 32:398.4 provides in pertinent part:
[When the citation] is sworn to and includes the necessary
information required under the general laws of this state with respect to
a complaint which charges commission of the offense alleged in the
citation to have been committed, then such citation, when filed with a
court of proper jurisdiction, shall be deemed to be a lawful compiaint
for the purpose of prosecution[. ]
Where accusations in a traffic ticket are signed by the arresting or citing
officer but are not signed under oath or sworn to, the ticket is not an affidavit and is
insufficient to institute prosecution. State v. Kimble, 411 So.2d 430 (La.1982).
Here, Defendant pre-signed uniform traffic tickets as the complainant, where
he himself did not witness any violation of the law. As the complainant, Defendant
did not sign the citations before a notary or other public officer and knew such when
he signed in advance. He did so knowing that the ticket forms would be used by
J.G.W. to cite motorists, and in fact, she testified that he instructed her to do so. The
jury heard her testimony, and based on its unanimous verdict, it believed her. The
jury also heard the testimony of Mr. Mosely, who explained the legal necessity of
the citation being signed under oath by the complainant. It is not for us to second
guess that credibility determination, especially considering the corroborating
evidence surrounding the issuance of the tickets.
25
As the Chief of CPD, Defendant knew that the signed tickets would be given
to motorists, and that by law, the tickets would be filed for prosecution by Creola.
La.R.S. 32:398.2(A). The fact that Defendant did not personally file the tickets once
they had been written is of no legal consequence. State v. Carpenter, 00-436
(La.App. 3 Cir. 10/18/00), 772 So.2d 200, writ denied, 00-3152 (La. 1/25/02), 806
So.2d 665; and State v. Bourgeois, 13-606 (La. 12/6/13), 148 So.3d 561. The filing
or maintaining of the citations that purport to be the basis for criminal misdemeanor
violations, albeit traffic violations, “with knowledge of their falsity,’ meets the
definition of La.R.S. 14:133(A)(2) and (3).
Further, Defendant argues that the fact that J.G.W. was utilizing the radar unit
to issue the citations signed in advance by him was not prohibited, and there was
testimony by Assistant Chief Mattix as to such. Defendant is incorrect. In order to
utilize evidence of a radar reading to establish a violation of our speed laws, a proper
foundation for the admission of the radar evidence must be established. State v.
Heck, 486 So.2d 915 (La.App. | Cir.), writ denied, 488 So.2d 1024 (La.1986). The
State must prove that the particular radar unit was functioning accurately and that
the officer was properly qualified to operate the radar gun. As Chief of Police,
Defendant knew, or should have known, that J.G.W.’s use of the radar unit to support
the issuance of traffic citations was improper and that the citation was based on
inadmissible evidence. Yet, he instructed her to do just that. “[I]gnorance of the
law is not a defense to any criminal prosecution.” State v. West, 33,133, p. 5
(La.App. 2 Cir. 3/1/00), 754 So.2d 408, 411. Accordingly, we affirm the conviction
for filing false documents.
26
Malfeasance in Office
In assignment of error number three, Defendant asserts that the evidence
introduced at trial was insufficient to prove beyond a reasonable doubt that he
committed malfeasance in office. He argues, in brief, that the evidence concerning
the tickets and the sexual battery evidence were insufficient for the malfeasance
charge for the same reasons as the sufficiency review on the separate convictions.
Further, he argues that even if the alleged misdemeanor battery on Ms. Brashear had
been proven, it did not occur within the scope of his duty as chief of police, and thus,
it was also insufficient to support the charge of malfeasance. Again, we disagree.
At the time of the commission of the offense,” La.R.S. 14:134(A) provided
for the crime of malfeasance in office, as follows:
(1) Intentionally refusing or failing to perform any duty lawfully
required of him, as such officer or employee: or
(2) Intentionally performing any such duty in an unlawful
manner; or
(3) Knowingly permit any other public officer or publicemployee,
under his authority, to intentionally refuse or fail to perform any duty
lawfully required of him, or to perform any such duty in an unlawful
manner.
“Any duty lawfully required of a public officer or public employee when
delegated by him to another public officer or public employee shall be deemed to be
a lawful duty of such public officer or employee[,]” and “[t]he delegation of such
lawful duty shall not relieve the public officer or employee of his lawful duty.”
La.R.S. 14:134(B). “Whoever commits the crime of malfeasance in office shall be
imprisoned for not more than five years with or without hard labor or shall be fined
not more than five thousand dollars, or both.” La.R.S. 14:134(C)(1).
The offense date range was November 21, 2019, through March 30, 2020. The statute
was amended in 2022.
27
In State v. Thompson, 15-886, p. 10 (La. 9/18/17), 233 So.3d 529, 537-38, the
supreme court discussed the malfeasance in office statute as follows:
Under this statute, the state must prove the existence of a law or
statute imposing an affirmative duty on the defendant as a public officer
and that the defendant intentionally refused or failed to perform that
duty or intentionally performed that duty in an unlawful manner. State
v. Davis, 93-0599 (La. 4/11/94), 634 So.2d 1168, 1170. The duty must
be one expressly imposed by law on the public officer because the
officer is entitled to know exactly what conduct is expected of him in
his official capacity and what conduct will expose him to criminal
charges. State v. Perez, 464 So.2d 737, 741 (La. 1985). Intent is
likewise an essential element of the offense.
In State v. Petitto, 10-581, p. 13 (La. 3/15/11), 59 So.3d 1245, 1254, (emphasis
in original) the supreme court discussed the element of intent as required for a
conviction for malfeasance in office:
Louisiana R.S. 14:134 does not criminalize all ethical violations and/or
general derelictions of duty. The object of the malfeasance statute is to
punish a breach of duty committed with the required culpable state of
mind. To this end, the statute expressly limits its application to
instances in which a public officer or employee intentionally refuses or
fails to perform or intentionally performs in an unlawful manner, any
affirmative duty imposed by law upon him in his role as a public
servant. The inclusion in the statute of a criminally culpable state of
mind makes it clear that it applies only where the statutorily required
mens rea is proven beyond a reasonable doubt. Thus, mere
inadvertence or negligence, or even criminal negligence, will not
support a violation of the malfeasance statute because the statute
specifies the act or failure to act must be intentional.
Defendant was charged with malfeasance in office in the third amended bill
of information as follows:
COUNT 5: 14:134 A MALFEASANCE IN OFFICE, in that Donald
Alan Crooks, did on or about November 21, 2019, through March 30,
2020, being a public officer or public employee, did commit
malfeasance in office by:
A.
(1) Intentionally refusing or failing to perform any duty lawfully
required of him, as such officer or employee[;] or
(2) Intentionally performing any such duty in an unlawful
manner; or
28
(3) Knowingly permit any other public officer or publicemployee,
under his authority, to intentionally refuse or fail to perform any duty
lawfully required of him, or to perform any such duty in an unlawful
manner.
B.
Further, Donald Alan Crooks did commit the above-described
malfeasance in office by:
(1) Pre-signing traffic complaint affidavits for the
Town of Creola, State of Louisiana, and providing
them to unqualified subordinate officers with no
radar certification or post certification, thus
allowing those subordinate officers to write
complaint affidavits citations and falsely filing the
citations as written by Chief Donald Alan Crooks
even though Chief Donald Alan Crooks had not
observed the started [sic] traffic infraction outlined
in said affidavits.
(2) Committing multiple sexual batteries on a
subordinate officer and another Town of Creola
employee[,] while in uniform and performing his
duties as Chief of Police for the Town of Creola.
The oath of office taken and signed by Defendant as Creola’s Chief of Police
on July 1, 2019, was introduced and was read into evidence by Mr. Mosely, during
his direct examination. Therein, Defendant swore to “support the constitution and
laws of the United States and the constitution and laws of this state” and to “faithfully
and impartially discharge and perform all the duties incumbent” as the Creola Chief
of Police according to the best of his ability and understanding. According to Mr.
Mosley, Defendant had a duty as the chief of police to enforce the law.
In State v. Coker, 625 So.2d 190 (La.App. 3 Cir.), writ denied, 624 So.2d 1204
(La.1993), the defendant was also a Chief of Police charged with malfeasance in
office for committing a battery on a criminal suspect being held for questioning.
After his conviction, he appealed, arguing that:
{T]he state failed to prove the essential elements of the crime of
malfeasance in that the state failed to show that defendant was in
violation of ‘a duty lawfully required of him’ through: (1) the
29
introduction of a statute or provision of law which delineates an
affirmative duty upon the official and (2) the showing that the duty was
expressly imposed by law upon the official.’
Id. at 195.
Therein, this court rejected the defendant’s argument that a particular statutory
duty must be delineated and proven to apply to the public official in the performance
of his or her duties.
We conclude that Chief Coker failed to support the laws of the
United States and of the State of Louisiana, as was required by his
office. Chief Coker’s reprehensible attack on these suspects constituted
a breach of his most fundamental duty—the duty to respect the rule of
law and to protect all citizens within his jurisdiction from violence
against their persons. The defendant had an express, affirmative duty
to investigate criminal activities and to apprehend suspects. The
defendant performed those duties in an unlawful manner by maliciously
battering two suspects.
We reject the defendant’s contention that affirming the trial
court’s finding will subject police officers to criminal malfeasance
prosecutions for all violations of the law. Clearly, the malfeasance
statute requires that the offender be acting in his official capacity and
engaged in the performance of a duty which is required by law, in order
to support conviction. The jurisprudence indicates that prosecution for
malfeasance is reserved for those cases in which a public official has
blatantly abused the authority of his office and violated the public trust
by his direct, personal acts or failure to act.
Without question, the defendant’s unprovoked and unjustified
attack on these two helpless suspects constituted one of the most
flagrant abuses of police authority conceivable. The chief’s conduct,
in full view of his subordinates, demonstrated a fundamental disrespect
for the constitutional rights enjoyed by our citizens, and set a
potentially-dangerous and wholly unacceptable example to other
department personnel.
Id. at 197-98.
Here, Defendant blatantly abused his authority as Chief of Police by
subjecting his subordinate officer, J.G.W., to unwanted and unlawful sexual batteries
on multiple occasions. The testimony of J.G.W. was clear that these incidents
happened while Defendant was working and engaged in his position as Chief of
Police. We have previously found the evidence of these offenses sufficient to
30
support his convictions for three counts of sexual battery and need not rehash that
evidence here. He also engaged in an inappropriate and illegal sexual battery on the
town clerk, Ms. Brashear. That evidence, as testified by Ms. Brashear, was one of
the predicate offenses of malfeasance in office as charged in the bill of information.
We find that this evidence, even considered alone, supports the sufficiency of the
evidence for the conviction of malfeasance in office.
In addition, we have previously determined that the evidence is sufficient to
support Defendant’s conviction for the offense of filing or maintaining false public
records. He did so by pre-signing traffic citations when he did not issue the same or
witness any violation whatsoever, knowing that the citation would form the basis for
a criminal charge or charges, albeit misdemeanor traffic violations, when used by
J.G.W. To the overwhelming majority of citizens, a traffic citation is the closest any
will come to the criminal justice system, yet Defendant chose to pervert the process,
resulting in illegally charging these individuals. This too, was sufficient to support
the conviction of malfeasance in office. Accordingly, Defendant’s conviction on this
charge is affirmed.
DENIAL OF THE MOTION IN LIMINE
In his fifth assignment of error, Defendant asserts that the trial court
committed manifest error in denying his motion in limine and permitting the State
to offer testimony concerning another alleged improper touching, which, if proven,
would have been a misdemeanor grade offense, as the alleged bad act was irrelevant
and highly prejudicial to him. Here, Defendant points to the evidence of a sexual
battery on Ms. Brashear, who testified at the trial as a witness to some of the events
pertaining to J.G.W., and also testified to an incident that occurred when Defendant
inappropriately touched her. He asserts that the trial court improperly admitted this
evidence because: 1) the alleged battery was not relevant to the malfeasance charge;
31
2) the State failed to provide notice of its intent to use the evidence for an alleged
other crime/bad act; 3) the trial court did not conduct a balancing test; and 4) the
evidence was highly prejudicial because it bolstered the uncorroborated testimony
of J.G.W.
Evidence of other crimes is generally inadmissible in the guilt
phase of a criminal trial unless the probative value of the evidence
outweighs its prejudicial effect and unless other safeguards are met.
State v. Code, 627 So.2d 1373 (La. 1993), cert. denied, 511 U.S. 1100,
114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); State v. Bourque, 622 $o.2d
198 (La. 1993); State v. Silguero, 608 So.2d 627 (La.1992). This
general rule ensures that a defendant who has committed other crimes
will not be convicted of a present offense simply because he is
perceived as a “bad person,” irrespective of the evidence of his guilt or
innocence. A conviction should be based on guilt and not on character.
Bourque, 622 So.2d at 233; State v. Hamilton, 478 So.2d 123 (La.
1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743
(1986). One important safeguard is advance notice that such other
crimes evidence will be offered. This prevents surprise and allows a
defendant an opportunity to prepare a meaningful defense. Bourque,
622 So.2d at 233; Hamilton, 478 So.2d at 129; State v. Prieur, 277
So.2d 126 (La. 1973).
State v. Johnson, 94-1379, pp. 9-10 (La. 11/27/95), 664 So.2d 94, 99.
In Johnson, the supreme court considered the defendant’s argument that the
trial court erroneously allowed inadmissible other crimes evidence during his cross-
examination when prosecutors asked him about prior guilty pleas to charges which
were later subjected to a nolle prosequi. It found that the introduction of such
evidence was erroneous as being beyond the scope of La.Code Evid. art. 609.1.
However, the court held that the erroneous introduction of other crimes evidence is
a trial error which may be quantitatively assessed in the context of the other
evidence, and as such, may be reviewed for harmless error, regardless of La. Code
Crim.P. art. 770, which provides for a mistrial “when a remark or comment, made
within the hearing of the jury by the judge, district attorney, or a court official, during
39 66
the trial or in argument, refers directly or indirectly to” “[a]nother crime committed
or alleged to have been committed by the defendant as to which evidence is not
32
admissible[.]” In so doing, the court abrogated the previous per se prejudicial
analysis used to overturn convictions for the erroneous introduction of other crimes
evidence, even where such evidence was not objected to, as had been espoused in
cases such as State v. Brown, 428 So.2d 438 (La.1983); State v. Duke, 362 So.2d
559 (La.1978); and State v. Hamilton, 356 So.2d 1360 (La.1978). After reaching
this conclusion, the supreme court reviewed the overwhelming evidence otherwise
supporting the conviction and found the introduction of the evidence to be harmless.
Here, we find that the evidence as testified by Ms. Brashear was harmless
beyond a reasonable doubt as to the convictions for sexual battery of J.G.W. The
evidence as to the felony sexual batteries on J.G.W. was clear as to what occurred
when, on the first occasion, Defendant grabbed her and touched her genitals through
her clothing; on the second occasion, he grabbed her genitals with his hand and thrust
his genitals to her buttocks; and on the final occasion, he grabbed her genitals
directly, all without her consent. In fact, one or more of these incidents was
witnessed by Ms. Brashear, and the evidence was corroborated by the testimony of
Mr. Moore, Mr. Mosely, and Detective James.
In addition, Ms. Brashear’s testimony as to the sexual battery perpetrated on
her was independently admissible as part of the predicate offenses for the
malfeasance charge as per the bill of information. While Defendant did file a motion
in limine as to this predicate, he did not file a motion to sever the malfeasance offense
from the sexual battery offenses.” Accordingly, we find no merit to this assignment
of error.
14 . . . . Lope
We address the claim of ineffective assistance of counsel for his failure to do so below.
33
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sixth assignment of error, Defendant argues that he received ineffective
assistance of counsel for (1) the failure to seek the severance of the three sexual
battery counts from the count of filing false public records and the count of
malfeasance in office and (2) the failure to file a motion to quash count five of the
third amended bill of information.
In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701,
this court set forth the following explanation for the handling of claims of ineffective
assistance of counsel on appeal:
A claim for ineffective assistance of counsel is properly raised in
an application for post-conviction relief because this allows the trial
court to order a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where the record
contains sufficient evidence to decide the issue, and the issue is raised
by an assignment of error on appeal, it may be considered by the
appellate court. State v. Tapp, 098-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d
804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670
So.2d 461.
We find that the record here provides sufficient evidence for us to decide this
issue and, we do so here.
To prove that his attorney was ineffective, a defendant must show his attorney
was deficient and that he was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
Under the standard for ineffective assistance of counsel set out
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), adopted by this Court in State v. Washington, 491 So.2d
1337, 1339 (La. 1986), a reviewing court must reverse a conviction if
the defendant establishes (1) that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional
norms; and (2) counsel’s inadequate performance prejudiced defendant
to the extent that the trial was rendered unfair and the verdict suspect.
The Strickland test of ineffective assistance affords a “highly
deferential” standard of review to the actions of counsel to eliminate,
as far as possible, “the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s conduct, and to evaluate the conduct from
34
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
State v. Harris, 18-1012, pp. 15-16 (La. 7/9/20), 340 So.3d 845, 856
The burden of proof in ineffective assistance of counsel claims falls upon the
defendant. State v. Griffin, 02-1703 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, writ
denied, 03-809 (La. 11/7/03), 857 So.2d 515.
To carry his burden, the defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant
must make both showings to prove that counsel was so ineffective as to
require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4
Cir.1992).
This Court has recognized that if an alleged error falls “within
the ambit of trial strategy,” it does not “establish ineffective assistance
of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).
Moreover, as “opinions may differ on the advisability of a tactic,
hindsight is not the proper perspective for judging the competence of
counsel’s trial decisions. Neither may an attorney’s level of
representation be determined by whether a particular strategy is
successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).
Id. at 40.
Failure to File Motion to Sever
Defendant claims that his counsel was ineffective for failing to file a motion
to sever count four (filing false public records) and count five (malfeasance in office)
from the three counts of sexual battery. In his brief, Defendant acknowledges the
two-prong test for establishing a claim of ineffective assistance of counsel per
Strickland and alleges his counsel’s failure to file a motion to sever resulted in
prejudice, as follows:
In light of the trial court’s ruling on the motion in limine
discussed in the preceding assignment which permitted the testimony
of H.N.B. to be presented to the jury, Donald Crooks was substantially
prejudiced as it bolstered J.G.W.’s testimony. J.G.W. provided little
information concerning when or how the alleged events occurred and
there were no eyewitnesses to any of the events. Further, these alleged
35
events apparently occurred after J.G.W. was disciplined by Chief
Crooks. Additionally, even though she had been advised that if she
wanted to file charges against an elected official, she needed to contact
the State Police, J.G.W. chose to contact the mayor, shortly after she
had been laid off. She also spoke to the council in an attempt to be
reinstated.
As a result, Defendant alleges he was prejudiced because “evidence tending to
corroborate the uncorroborated testimony of J.G.W.” was permitted. However,
Defendant does not cite any applicable law or supporting jurisprudence to show
counsel’s performance was deficient. Notably, he does not reference La.Code
Crim.P. art. 493, which provides:
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.
Defendant similarly does not mention La.Code Crim.P. art. 495.1, which
permits a defendant properly charged with multiple offenses in the same bill of
information to move for a severance “[i]f 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.” Defendant does not
discuss the factors used in determining whether joinder of two or more offenses
would result in prejudice, specifically:
(1) whether the jury would be confused by the various counts; (2)
whether the jury would be able to segregate the various charges and
evidence; (3) whether the defendant would be confounded in presenting
his various defenses; (4) whether the crimes charged would be used by
the jury to infer a criminal disposition; and (5) whether, especially
considering the nature of the charges, the charging of several crimes
would make the jury hostile.
State v. Lewis, 97-2854, p. 15 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1015, writ
denied, 99-2694 (La. 3/17/00), 756 So.2d 325.
36
It is a well-settled rule that mere conclusory statements are insufficient to
establish a claim of ineffective assistance of counsel. State v. Bell, 21-599 (La.App.
5 Cir. 6/22/22), 343 So.3d 914, writ denied, 22-1179 (La. 9/27/22), 347 So.3d 155.
In addition, Defendant fails to assert how the outcome of his trial would have been
different if defense counsel had pursued the motion to sever. Griffin, 838 So.2d 34.
Accordingly, we find that Defendant has failed to show that his counsel was deficient
in failing to seek severance of the various charges or that he was prejudiced in any
way. Defendant has failed to demonstrate that counsel’s decision to proceed with
one trial on all counts was not trial strategy. Thus, Defendant failed to meet his
burden of proving that he received ineffective assistance of counsel.
Failure to File Motion to Quash Count Five
Defendant also claims that his counsel was ineffective for failing to file a
motion to quash count five of the third amended bill of information. Similarly, his
brief fails to address the applicable law and relevant jurisprudence in the discussion
of this issue. Under Uniform Rules—Courts of Appeal, Rule 2—12.4(B)(4), all
assignments of error must be briefed, and the appellate court may consider as
abandoned any assignment of error that has not been briefed. See State v. Vice, 21-
144 (La.App. 3 Cir. 10/6/21), 329 So.3d 398; State v. Tranchant, 10-459 (La.App. 5
Cir. 11/23/10), 54 So.3d 730, writ denied, 10-2821 (La. 4/29/11), 62 So.3d 108. In
the present case, Defendant has presented no argument in support of his claim that
counsel was ineffective in failing to file a motion to quash count five of the third
amended bill of information. Therefore, considering Defendant’s failure to present
any argument in support of his claim, this court need not consider this issue.
Uniform Rules—Courts of Appeal, Rule 2—12.4.
ae
EXCESSIVENESS OF THE SENTENCES FOR SEXUAL BATTERY
In his fourth assignment of error, Defendant claims that the sentences imposed
on the three counts of sexual battery are violations of the Eighth Amendment of the
Constitution of the United States and La. Const. Art. 1, § 20, as they are nothing
more than cruel and unusual punishment. Specifically, he asserts that the sentences
are excessive based on “the specific facts of this offender and these offenses” and
that given his advanced age and health problems, home incarceration best serves
both his and society’s interests. Defendant asks this court to amend his hard labor
sentences to place him on home incarceration.’ This same argument was presented
in his motion to reconsider sentence filed with the trial court, and therefore it is
properly before this court. See La.Code Crim,P. art. 881.1.
This court, in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43 (alteration in original), writ denied, 01-838 (La.
2/1/02), 808 So.2d 331, set forth the following standard to be used in reviewing
excessive sentence claims:
Louisiana Code of Criminal Procedure Article 894.2(A) sets forth the requirements for
home incarceration, as follows:
Notwithstanding any other provision of law to the contrary, a defendant may
be placed on home incarceration under the following conditions:
(1) The defendant is eligible for probation or was convicted of a
misdemeanor or a felony punishable with or without hard labor.
(2) In felony cases, either:
(a) The Department of Public Safety and Corrections, through the division
of probation and parole, recommends home incarceration of the defendant and
specific conditions of that home incarceration; or
(b) The district attorney recommends home incarceration.
(3) The court determines, after a contradictory hearing, that home
incarceration of the defendant is more suitable than imprisonment or supervised
probation without home incarceration and would serve the best interests of justice.
The court may order home incarceration either in lieu of, or in addition to, a term
of imprisonment. When the court sentences a defendant, it may order the defendant
to serve any portion of the sentence under home incarceration.
38
La. Const. art. I, § 20 guarantees that, “[n}]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 US.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
In State v. Soileau, 13-770, 13-771, p. 5 (La.App. 3 Cir. 2/12/14), 153 So.3d
1002, 1005-06, writ denied, 14-452 (La. 9/26/14), 149 261, we further stated:
Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.
5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” State v. Batiste,
594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it 1s
within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.” State v. Cook, 95-
2784 (La. 5/31/96); 674 So.2d 957, 958.
In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied,
07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116 (La. 12/7/07), 969
So.2d 626, this court adopted the fifth circuit’s three factor test from State v. Lisotta,
98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99),
745 So.2d 1183.
39
Looking first to the nature of the offenses, Defendant was convicted of three
counts of sexual battery, one count of filing false public records, and one count of
malfeasance in office. In this appeal, Defendant only alleges that his sexual battery
sentences are excessive. Sexual battery is enumerated as a crime of violence and
carries a sentencing range of “imprisonment, with or without hard labor, without
benefit of parole, probation, or suspension of sentence, for not more than ten years.”
La.R.S. 14:2(B); La.R.S. 14:43.1(C)(1). For each of the three counts of sexual
battery, the trial court sentenced Defendant to eighteen months at hard labor;
however, the trial court ordered the sentences to run concurrently with one another.
Therefore, Defendant’s sentences fall in the lower end of the sentencing range.
As to the nature and background of the offender, Defendant was described as
a seventy-one-year-old first felony offender at the time of sentencing. The
presentence investigation (PSI) reflected, however, that Defendant had numerous
arrests, which the trial court discussed in detail at sentencing:
The Pre-sentence Investigation does reveal prior arrest[s]. There
was a September 17, 1970 arrest for Trespassing on Government
property and Theft of Gasoline. Uh, it appears Mr. Crooks ... was
sentenced to six (6) months probation.
March 14" of 1973, Rapides Parish for Prowling. No disposition
available. May 224, 1974 arrest by Rapides for Theft. No - - no
disposition was available.
January 13, 1975 arrest by Rapides Parish for Contributing to a
Delinquency of a Juvenile[;] no disposition was available.
July 26" of 1978, an arrest by Rapides for Non-Support of Child
Support or Failure to Pay Child Support uh, it appears Mr. Crooks was
ordered to pay one hundred dollars ($100.00) per month, and that his
probation was terminated in October of 1981.
November 27" of 1978, an arrest by West Monroe Police for
Simple Trespass. Mr. Crooks was ordered to pay a fine of one hundred
eighty dollars and fifty cents ($180.50) plus court cost[s].
A January 12" of 1994 arrest by Grant Parish Sheriff's Office for
False Impersonation. There was no disposition available.
40
April 23% of 1996, an arrest by Rapides Parish Sheriffs Office
for two (2) counts of Stalking[;] no disposition was available.
April 25" of 1996, an arrest by Rapides Parish for Harassing
Telephone Language, two (2) counts, and a charge of Stalking. No
disposition was available.
An October 16", 1996 arrest by Grant Parish Sheriff's Office for
Disturbing the Peace by Fistic Encounter[;} no disposition was
available.
January 27", 2014 arrest for Violation of Protective Order[;] here
the charge was dismissed in February of 2014.
And a May 4", 2020 arrest for the current charges.
In mitigation, defense counsel discussed Defendant’s health problems and
introduced two reports from the East Grant Health Center. According to defense
counsel, after Defendant was convicted he suffered a significant stroke, which
resulted in neurological issues and physical impairments. Additionally, Defendant
has diabetes and high blood pressure, had undergone cervical and back surgeries,
and suffered from a gunshot injury which caused damage to his back. Regarding his
mental health, defense counsel stated that Defendant suffered from depression due
to his poor health and the court proceedings.” Defense counsel requested that the
trial court take Defendant’s advanced age and health problems into consideration
and order home incarceration as opposed to imprisonment. Several witnesses
testified on behalf of Defendant, including his daughter, his brother, Mr. Mosley,
and an alderwoman for Creola. Defendant declined to make any statements to the
trial court.
Before imposing the sentences, the trial court discussed the mitigating and
aggravating circumstances:
There was also a report that I reviewed . . . that [shows] Mr.
Crooks suffers from reocu - - recurring depression, and that due to his
In contrast, Defendant reported he had no history of mental health problems during the
PSI.
4]
mental condition that the incarceration was going to have a very
negative effect on his um, mental health.
...I1 find that Mr. Crooks is seventy (70) years old. Um, there
really is no dispute that Mr. Crooks is elderly, that he has significant
medical conditions, many of which he’s been dealing with for a long
time. Some of which, apparently[,] he suffered while on the job
working for law enforcement. And those are mitigating circumstances.
Mr. Crooks’ health is very relevant to the sentencing in this case.
There are also the aggravating circumstances. Chief Crooks was
the Chief law enforcement officer for the Village of Creola, and
according to the decision of the jury, he used that position to commit ...
sexual battery, and also committed the [offense of] Injuring Public
Records or Filing or Maintaining False Records as well as Malfeasance
in Office.
I found it interesting [that] Mr. Dancer indicated that his brother
was not guilty of the sexual battery, but kind of was guilty on the other
two (2). I guess it’s nice that Mr. Crooks has admitted that to him, he’s
never admitted it to any of you. Still hasn’t admitted it today. He still
has not admitted to any of you that he committed sexual battery.
[I find] it interesting that Mr. - - Ms. [J.G.W.] has indicated that
she has forgiven the defendant, normally forgiveness is predicated on
someone asking for forgiveness. Mr. Crooks has never asked for
forgiveness. Never admitted he did anything wrong.
The trial court indicated that home incarceration was an option pursuant to
La.Code Crim.P. art. 894.2 but sentenced Defendant to eighteen months at hard labor
with the “recommendation that that be at a facility that can address [Defendant’s]
medical needs as well as his current mental health needs.”
Regarding the imposition of hard labor sentences for sexual battery, appellate
courts have upheld a range of sentences, although under varying circumstances.
However, most of the reported cases deal with juvenile victims, and there appears to
be none where home incarceration was imposed in lieu of imprisonment.
In State v. Reynolds, 41,612 (La.App. 2 Cir. 2/28/07), 954 So.2d 179, writ
denied, 07-1023 (La. 11/16/07), 967 So.2d 522, the defendant was charged with
forcible rape, pled guilty to sexual battery, and was sentenced to five years at hard
labor without the benefit of parole, probation, or suspension of sentence. During
42
sentencing, the trial court noted the aggravating and mitigating circumstances,
including the defendant’s social history, his age, and his employer’s testimony that
he was a good employee. The trial court observed that the defendant was a first
felony offender, though he had previously been charged with numerous
misdemeanors. The second circuit found that the sentence was not excessive in light
of the severity of the offense and in light of his reduced sentencing exposure
effectuated by his plea.
In State v. Dykes, 38,092 (La.App. 2 Cir. 3/3/04), 867 So.2d 908, writ denied,
04-847 (La. 9/24/04), 882 So.2d 1169, the second circuit affirmed the maximum
sentences of ten years at hard labor on each of three counts of sexual battery of a
juvenile, even though the defendant was sixty-four years old and suffered from a
disabling medical condition. Further, the trial court ordered count two to run
consecutively with count one and count three to run concurrently with counts one
and two. In finding that the sentences were not excessive, the second circuit noted
that, “[t]he record more than adequately shows that the trial court was aware of the
matters urged by the defense prior to imposing sentence, i.e., the defendant’s age
and disabling medical condition.” /d. at 914.
In State v. Redman, 449 So.2d 636 (La.App. | Cir.), writ denied, 456 So.2d
170 (La.1984), the defendant was convicted of sexual battery and simple crime
against nature, and the trial court sentenced him to consecutive terms of ten years at
hard labor for the conviction of sexual battery and five years at hard labor for the
conviction of crime against nature. On appeal, the first circuit found that the trial
court considered the mitigating circumstances and found the sentences were not
excessive:
The mitigating factors that defendant argues the trial court failed
to consider are that the victim accepted a ride home from work with
defendant, and also, had several drinks with him. Additionally,
43
defendant contends that the sentence imposes excessive hardship and
cruel and unusual punishment since the defendant at the time of
sentencing was 68 years old. We disagree.
It is apparent that the court considered defendant’s age, but his
history of sexual offenses stretching over nearly half a century
substantially outweighed any consideration defendant would be entitled
to because of advanced age. Further, the trial court did not find that the
victim facilitated the conduct by accepting a ride with and having a few
drinks with defendant, and we agree. The trial court sufficiently
articulated its reasons for this sentence and adequately considered the
sentencing criteria. No abuse of discretion is presented.
Id. at 639.
Though the present case can be distinguished from Reynolds, Dykes, and
Redman, these cases support the proposition that “[t]he trial judge is given great
discretion in the imposition of sentences within statutory limits, and the sentence
should not be set aside in the absence of abuse of his discretion.” State v. Bradley,
414 So0.2d 724, 725 (La.1982).
From the sentencing transcript, it is clear that the trial court considered the
mitigating circumstances, including Defendant’s advanced age and health problems,
and whether home incarceration was appropriate, before imposing the sentences.
Even considering his age and significant medical issues, the record supports the trial
court’s reasoning that a lesser sentence would deprecate the seriousness of the
offenses due to Defendant’s use of his position to perpetuate his sexual offenses and
his lack of remorse. Though he argues on appeal that home incarceration is more
suitable, the pertinent question is whether the trial court abused its broad sentencing
discretion. See State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957 (per curiam),
cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996). We find no abuse of that
discretion. Consequently, we find that Defendant’s hard labor sentences for his
sexual battery convictions are not constitutionally excessive.
44
DECREE
Defendant’s convictions for three counts of sexual battery, malfeasance in
office, and filing false public records are affirmed, as are the sentences for the sexual
battery offenses. The sentences for malfeasance in office and for filing false public
records are vacated, and the case is remanded for resentencing and a hearing to
determine the appropriate amount of restitution, if any, in compliance with the
provisions of La.Code Crim.P. art. 875.1.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
45