State Of Louisiana v. Scott Daniel McCoy ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 KA 0242
STATE OF LOUISIANA
VERSUS
SCOTT DANIEL McCOY
Judgment Rendered.• DEC 3 0 2020
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 594036
The Honorable William J. Knight, Judge Presiding
Meghan Harwell Bitoun Counsel for Defendant/Appellant
New Orleans, Louisiana Scott Daniel McCoy
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
J. Bryant Clark, Jr.
Assistant District Attorney
Covington, Louisiana
BEFO : HI INBOTHAM, THERIOT, AND WOLFE, JJ.
THERIOT, J.
The defendant, Scott Daniel McCoy, was charged by bill of information with
one count of indecent behavior with a juvenile ( victim C.R.) ( count 1), and one
count of indecent behavior with a juvenile ( victim C. J.) ( count 2), violations of La.
R.S. 14: 81. The defendant pled not guilty and, following a jury trial, was found on
count 1 guilty of the responsive offense of attempted indecent behavior with a
juvenile. See La. R.S. 14: 27. On count 2, the defendant was found not guilty. The
defendant was sentenced to three -and -one- half years imprisonment at hard labor.
The trial court suspended the sentence and placed the defendant on three years of
supervised probation. The trial court also ordered the defendant to pay for all
therapy and treatment for the victims. The defendant now appeals, designating two
assignments of error. We affirm the conviction. We vacate the sentence and
remand to the trial court for resentencing.
FACTS
In July of 2017, fifteen -year- old C. R.' was with E.R., her older sister, at
E.R.' s friend' s home in Pearl River. E.R.' s friend was the defendant' s daughter,
G.M. The defendant gave E.R. and C. R. " moonshine" to drink that he kept in a
mason jar. The defendant also drank some. C. R., E.R., G.M., and the defendant
then left the defendant' s house to pick up G.M.' s boyfriend and to go swimming at
G.M.' s boyfriend' s friend' s house. G.M. drove with E. R. in the front seat, while
the defendant and C. R. sat in the back. They stopped at a gas station, and the
defendant bought a six-pack of Mike' s Hard Lemonade. Upon arriving at the
friend' s house, they went swimming. C. R. drank some of the Mike' s Hard
Lemonade and became intoxicated. They finished swimming and drove home.
During the drive, C. R. vomited while in the backseat.
1 The victim and other minors are referred to by their initials. See La. R.S. 46: 1844( W).
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When they arrived at the defendant' s house, E.R. and G.M. gave C.R. a
shower to clean her up. They wrapped a towel around her and brought her, with
the defendant' s help, to a shed in the backyard. The shed, referred to as a " man
cave," would be where E. R. and C. R. would sleep that night. The towel was
removed, and E.R. dressed C. R. in a shirt and panties. The defendant was present
while C. R. was being dressed. E.R. and G.M. then left the shed to clean the car,
and the defendant stayed with C. R.
C. R. passed in and out of consciousness. During her periods of
consciousness, C. R. remembered the defendant rubbing her thighs. The defendant
would rub the inside of her thighs and C. R. would move his hand away. The
defendant also moved C. R.' s panties to the side to expose her vagina and asked
C. R. if she shaved down there. At one point, after blacking out and regaining
consciousness, the defendant allegedly told C. R. that she had begun performing
oral intercourse on him and that she should finish doing that. C. R. repeatedly asked
for her sister until the defendant texted E.R., and she returned to the shed. The
defendant left, and C. R. told E.R. what the defendant had done to her. E.R.
testified that C. R. told her the defendant had tried to move her panties, tried to
stick his genitals in her face, and " tried to get her to do inappropriate behavior."
The defendant testified at trial. He denied that anything inappropriate
occurred with C. R. The defendant indicated that when E.R. and C. R. arrived at his
house, he did not give them any alcohol. He denied giving C. R. any moonshine.
According to the defendant, he was outside cleaning the car while C. R. was given a
shower. After C. R. was given a shower and taken to the " man cave," the defendant
was standing at the head of the chair that C. R. was laying in, while E.R. and G.M.
tried to put on C. R.' s panties. Then, according to the defendant, he went outside to
clean the car. He then returned to the " man cave" with a washrag and a bucket to
take care of C. R. At that point, E.R. and G.M. went outside. The defendant stated
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that as C.R. was dry heaving, the defendant rubbed her hands, " trying to get her to
focus, to wake up". He then began rubbing her knee and the side of her thigh. The
defendant then texted E.R. and told her to come back to the shed.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the trial court erred in
allowing other crimes evidence pursuant to La. Code Evid. art. 404( B).
Specifically, the defendant contends that the probative value of the " prior act"
evidence was substantially outweighed by its prejudicial impact.
Prior to trial, the trial court ruled that it would allow into evidence an
incident involving B. S., pursuant to La. Code Evid. art. 404( B). At trial, B. S.
testified that she was friends with the defendant' s daughter, G.M. On one occasion
when seventeen -year-old B. S. was at the defendant' s house, the defendant kept
forcing her to drink moonshine, Mike' s Hard Lemonade, and Seagram' s. B. S. kept
blacking out, and G.M. had to give B. S. a shower because she kept vomiting.
While in the bathroom, the defendant told B. S. " something about shaving her
vagina[ l] area." At one point, when B. S. regained consciousness, she was in a
recliner, and the defendant was putting her underwear back on. On a second
occasion, the defendant gave B. S. moonshine again.
The defendant argues in brief that the testimony of B. S. served only to paint
the defendant as a person of bad character, and that the prejudice resulting from
this evidence substantially outweighed its probative value. The defendant further
contends that this 404( B) evidence was not relevant to the instant charge of
indecent behavior with juveniles because B. S. was seventeen years old at the time
of the alleged offense. To constitute indecent behavior with a juvenile under La.
R. S. 14: 81, the victim must be under the age of seventeen.
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We find that the other crimes evidence was clearly admissible and not overly
prejudicial to the defendant. Louisiana Code of Evidence article 404( B)( 1)
provides:
Except as provided in Article 412, evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or
accident, provided that upon request by the accused, the prosecution
in a criminal case shall provide reasonable notice in advance of trial,
of the nature of any such evidence it intends to introduce at trial for
such purposes, or when it relates to conduct that constitutes an integral
part of the act or transaction that is the subject of the present
proceeding.
Generally, evidence of criminal offenses other than the offense being tried is
inadmissible as substantive evidence because of the substantial risk of grave
prejudice to the defendant. In order to avoid the unfair inference that a defendant
committed a particular crime simply because he is a person of criminal character,
other crimes evidence is inadmissible unless it has an independent relevancy
besides simply showing a criminal disposition. State v. Lockett, 99- 0917 ( La.
App. 1st Cir. 2/ 18/ 00), 754 So. 2d 1128, 1130, writ denied, 2000- 1261 ( La. 3/ 9/ 01),
786 So. 2d 115. The trial court' s ruling on the admissibility of other crimes
evidence will not be overturned absent an abuse of discretion. See State v.
Galliano, 2002- 2849 ( La. 1/ 10/ 03), 839 So. 2d 932, 934 ( per curiam). When
seeking to introduce evidence pursuant to La. Code Evid. art. 404( B), the State
need only make a showing of sufficient evidence to support a finding that the
defendant committed the other crime, wrong, or act. State v. Taylor, 2016- 1124
La. 12/ 1/ 16), 217 So. 3d 283, 291.
Relevant evidence is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. La. Code Evid. art. 401. All
relevant evidence is admissible except as otherwise provided by positive law.
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Evidence which is not relevant is not admissible. La. Code Evid. art. 402.
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading
the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art.
403.
We find no abuse of discretion in the trial court' s finding that these other
acts by the defendant were admissible. What happened to B. S. bore a striking
similarity to what happened to C. R. In both cases, the defendant gave teenaged
females alcohol, particularly his own moonshine and Mike' s Hard Lemonade. In
both cases, the girls got so inebriated that they vomited and were placed in the
defendant' s shower to clean off. In both cases, the defendant made it a point to be
near the girls when they were in their underwear or naked.
The testimony of B. S. was not evidence of impermissible other crimes or
acts to show bad character or a criminal disposition; rather, it had independent
relevance to the issues of motive, opportunity, preparation, and intent. See La.
Code Evid. art. 404( B)( 1). It also revealed modus operandi. Any prejudicial effect
was outweighed by the probative value of such evidence. See La. Code Evid. art.
403; State v. Scales, 93- 2003 ( La. 5/ 22/ 95), 655 So. 2d 1326, 1330- 31, cert.
denied, 516 U.S. 1050, 116 S. Ct. 716, 133 L.Ed.2d 670 ( 1996).
There is also no merit to the defendant' s assertion that what had occurred to
B. S. was not relevant to the instant charge of indecent behavior with juveniles
because of B. S.' s age. There is no requirement under La. Code Evid. art. 404( B)
that the defendant has committed the same crime on different victims in order for
the other crimes evidence to be admissible. As long as the wrongs, acts, or other
crimes are similar and have an independent source of relevance, they are
admissible. Thus, evidence of not only convictions but also unadjudicated acts
committed by the defendant are admissible to show intent and motive. See State
m
v. Lutcher, 96- 2378 ( La. App. 1st Cir. 9/ 19/ 97), 700 So. 2d 961, 970, writ denied,
97- 2537 ( La. 2/ 6/ 98), 709 So. 2d 731; see also State v. Colbert, 2007- 0947 ( La.
App. 4th Cir. 7/ 23/ 08), 990 So. 2d 76, 89, writ denied, 2008- 2098 ( La. 5/ 15/ 09), 8
So. 3d 579. Additionally, courts in Louisiana have consistently held that prior
crimes differing from those at issue in their respective cases are still probative to
establish a defendant' s lustful disposition. State v. Mischler, 2018- 1352 ( La.
App. 1st Cir. 5/ 31/ 19), _ So. 3d _, 2019 WL 2334219, at * 8.
Based on the foregoing, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court abused
its discretion in ordering him to pay restitution to three victims.
The defendant points out that the trial court did not hold a restitution
hearing. The defendant also asserts that the trial court ordered the defendant pay
restitution to three victims, when there was only one victim in this case. This
assignment has merit.
At the sentencing hearing, after sentencing the defendant and placing him on
probation, the trial court stated: " You will pay for all therapy and treatment which
any of the victims in connection with this matter received as a result of your
actions." Restitution can only be ordered for damage or loss caused by the offense,
and restitution to the victim of a crime of which the defendant was not convicted or
did not plead guilty may not be imposed. State v. Elkins, 489 So. 2d 232, 233 ( La.
1986). Thus, restitution herein to victims of offenses of which the defendant was
accused but not convicted was not a proper condition of probation. See State v.
Alleman, 439 So. 2d 418, 419 ( La. 1983).
Moreover, the trial court' s failure to provide a specified payment plan for
payment was patent error. Under La. Code Crim. P. art. 895. 1, the court is
required to order restitution in cases where the victim or his family has suffered
VA
any monetary loss or medical expense. When the court, however, suspends the
imposition or execution of a sentence and places a defendant on probation, the
court is required to set the amount of restitution. The sentence imposed herein is
therefore defective for failure to state a specific amount to be paid in restitution.
State v. Galloway, 551 So.2d 701, 703- 04 ( La. App. 1st Cir. 1989).
Further, the defendant was convicted of only a single crime, of which the
sole victim was C. R. The defendant was acquitted of the charge wherein C. J. was
the victim; and B. S. was not a victim or an aggrieved party of either charged
offense. Also, neither C. J. nor B. S. was a family member whose expenses were
eligible for restitution under either La. Code Crim. P. arts. 895 or 895. 1.
Accordingly, it was inappropriate for the court to require the defendant to pay
restitution for any other person other than C. R. See Galloway, 551 So.2d at 704.
For the foregoing reasons, we vacate the condition of restitution and remand
this matter for imposition of a new condition. The trial court is to set out a specific
amount to be paid and to confine such payment to C. R., the only victim of the
crime for which he was convicted.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
FOR RESENTENCING.