State v. Kohl

524 So. 2d 781, 1988 WL 6691
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1988
DocketCR87-644
StatusPublished
Cited by14 cases

This text of 524 So. 2d 781 (State v. Kohl) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kohl, 524 So. 2d 781, 1988 WL 6691 (La. Ct. App. 1988).

Opinion

524 So.2d 781 (1988)

STATE of Louisiana, Appellee,
v.
Robert KOHL, Appellant.

No. CR87-644.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1988.

*782 Douglas J. Nehrbass, Frederic G. Hayes, Lafayette, for defendant-appellant.

Michell Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

Before DOMENGEAUX, FORET and DOUCET, JJ.

FORET, Judge.

Defendant, Robert Kohl, was charged by indictment with two counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. A jury of six found defendant guilty as charged, and he was sentenced to serve four years at hard labor on each count, with the sentences to run concurrently. *783 On appeal, eight assignments of error are alleged by defendant:

1. The trial court erred in failing to require the state to describe with particularity the alleged dates of each count of the alleged offenses, so as to allow defendant to adequately prepare for the defense and/or to allege with particularity such as to preclude double jeopardy.

2. The trial court erred in that there was no evidence that the requirement that the offender had the "intention of arousing or gratifying the sexual desires of either person" was met, which is an essential element of each count of the crimes charged.

3. The trial court erred in that there was prosecutorial misconduct in the course of the trial in that evidence of another crime, that attempted bribery to affect the outcome of the trial and civil litigation was introduced through improper questioning of the defendant, or in the alternative.

4. The trial court erred in that there was prosecutorial misconduct in the course of the trial in that evidence that the defendant paid Tommy Fountain money to have the charges "settled" through improper questioning of the defendant was introduced.

5. The trial court erred in that evidence obtained through improper questioning by the district attorney of the defendant, brought out over objection that the defendant had paid Tommy Fountain a large sum of money to bring about settlement of the civil case and this action; which questions and the evidence of the actions taken by the defendant in regard to attempting to settle was improper, prejudicial and so prejudicial as to require a new trial.

6. The trial court erred in failing to meet the requirements of La.C.Cr.P. Art. 894.1 as he did not state his reasons for the sentence with sufficient particularity.

7. The trial court erred in that the defendant should have been granted a new trial.

8. The trial court erred in that the defendant should have received a suspended sentence in the absence of granting a new trial.

Evidence produced at trial indicated that defendant's wife provided child-care services for young children at the Kohl's residence in Lafayette Parish. Between September, 1980 and November, 1982, child-care services, including overnight stays, were provided to Nancy Hardin, age 7. Similarly, between January, 1982 and December, 1984, child-care services, including overnight stays, were provided to Kimberly Mier, age 8.

During the course of the overnight visits when Mrs. Kohl baby-sat for Nancy and Kimberly, the two girls testified that defendant would come into the bedroom where they were sleeping, pull down their underwear, and rub parts of his face, beard, hands, mouth, and tongue on their vaginal areas. Nancy testified that this occurred three or four times to her and Kimberly indicated between ten and twenty times to her.

After noticing a significant change in her child's behavior, Kimberly's mother confronted her daughter and learned of these incidents. She later reported same to the police in February of 1985. A police investigation was conducted and resulted in the arrest of the defendant; he was later indicted by the grand jury.

ASSIGNMENT OF ERROR NO. 1

In the first assignment of error, defendant complains that the trial court erred by not requiring the State to specify the dates on which the alleged offenses occurred, thereby depriving him of the opportunity to adequately prepare his defense and/or subjecting him to double jeopardy. Defense counsel's argument on this issue is, "How can you defend charges when you do not know the date? Or how many times?"

La.C.Cr.P. art. 468 provides, in pertinent part:

*784 "The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense."

Our review of the jurisprudence reveals ample authority contrary to defendant's position. In State v. Case, 357 So.2d 498 (La.1978), defendant argued that the bill of information was vague and indefinite, therefore it failed to inform him of the nature and cause of the offenses with which he was charged. After citing La.C. Cr.P. art. 468, the Court noted that the State advised defendant that the lascivious conduct occurred on numerous occasions at defendant's home during a three-year period. Before concluding defendant's assignment of error lacked merit, the Court stated, "In a continuing sexual relationship of this type, exact dates often cannot be supplied. The record reflects that the State furnished the defendant as much information as was available." See also State v. Cramer, 358 So.2d 1277 (La.1978); State v. Piazza, 478 So.2d 1318 (La.App. 5 Cir. 1985); State v. Ohrberg, 448 So.2d 1316 (La.App. 1 Cir.1984). Given the above cited authority, the trial judge did not commit an error when he refused to require the State to specify the dates of the offenses.

While defense counsel assigns as error the trial judge's error to require the State to specify the dates of the offenses so as to preclude double jeopardy, no argument is presented on that issue, and therefore it will not be addressed.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defense counsel contends there is insufficient evidence on the element of specific intent. The standard for reviewing sufficiency of evidence is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. One of the elements of the crime of indecent behavior with juveniles is the commission of any lewd or lascivious act "... with the intention of arousing or gratifying the sexual desires of either person." Specific intent is defined by La.R.S. 14:10 as "... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." "Although the existence of such intent is a question of fact, it need not be proven as such, but can be inferred from the attendant circumstances." State v. Cox, 450 So.2d 1073 (La.App. 1 Cir.1984).

After citing language from Cox, supra, defense counsel's argument on this issue consists of two sentences. He argues, "Here, the defendant denied all charges, and the victims did not testify as to any arousal of the defendant. There is simply no evidence of an essential element of the crime." Defense counsel's argument indicates he misunderstood La.R.S. 14:81 for it does not require arousal, but only an intention of arousing or gratifying the sexual desires of either person.

One of the victims of this crime testified that defendant entered the room where she was sleeping and pulled her underwear down and began rubbing his face in her vaginal area.

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Cite This Page — Counsel Stack

Bluebook (online)
524 So. 2d 781, 1988 WL 6691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kohl-lactapp-1988.