State v. Perilloux

378 So.3d 280

21-448 (La.App. 5 Cir. 12/20/23)

STATE of Louisiana

v.Elzey Jeffrey PERILLOUX

NO. 21-KA-448

Court of Appeal of Louisiana, Fifth Circuit.

December 20, 2023

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA, NOS. 18,193 & 62,441, DIVISION "C", HONORABLE DENNIS J. WALDRON, JUDGE AD HOC PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Jeffrey M. Landry, Christopher N. Walters, Grant L. Willis

COUNSEL FOR DEFENDANT/APPELLANT, ELZEY JEFFREY PERILLOUX, James E. Boren, Baton Rouge, Carol Anne Kolinchak

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel

SCHLEGEL, J.

₁Defendant, Elzey Jeffrey Perilloux, appeals his convictions and sentences for three counts of indecent behavior with a juvenile and one count of misdemeanor sexual battery. For reasons, stated more fully below, we affirm defendant’s convictions and sentences.

PROCEDURAL BACKGROUND

On June 25, 2018, a grand jury indicted defendant, Elzey Jeffrey Perilloux, with two counts of indecent behavior with a juvenile, A.G.,¹ that occurred in May and June 2017 (counts one and count two), and one count of indecent behavior with a juvenile, E.H., that occurred in June 2017 (count three), in violation of La. R.S. 14:81. On the same day, the grand jury also indicted defendant of misdemeanor sexual battery of S.B., that occurred in December 2017, in violation of La. R.S. 14:43.1.1. On July 19, 2018, defendant pled not guilty to all counts. On September 8, 2020, the three counts of indecent behavior with a juvenile proceeded to trial before a six-person jury. On September 12, 2020, the jury unanimously found defendant guilty as charged on all three counts. The trial court found defendant guilty as charged of misdemeanor sexual battery of S.B. on the same date. The State requested that defendant be remanded into custody or alternatively be ordered to wear an ankle monitor until sentencing. The trial court denied these requests and set sentencing on October 15, 2020, allowing defendant over a month to file post-trial motions.

[1–4] On October 8, 2020, defendant filed a motion to continue his sentencing date for sixty days, which was heard on October 15, 2020. The trial court denied the request. Defendant then filed a motion for new trial, which was denied on the ₂same date. Sentencing was reset to October 19, 2020, and at that time, the trial court sentenced defendant to imprisonment at hard labor for four years and six months on each felony count to run consecutively. The trial court also sentenced defendant to six months in parish prison on the misdemeanor count of sexual battery to run consecutively to the sentences on counts one through three for a total of fourteen years. Following sentencing, the trial court granted defendant’s motion for appeal. Defendant also filed a motion to reconsider his sentence, which the trial court denied on January 29, 2021. Defendant then filed another motion for appeal, which the trial court granted on February 8, 2021.²

Almost eight months later, on October 6, 2021, defendant filed a second motion for new trial pursuant to La. C.Cr.P. art. 851(B)(4) and (B)(5), alleging that he was entitled to a new trial based on newly discovery evidence of alleged juror misconduct. Defendant also filed a motion asking this Court to remand the matter back to the trial court to allow for a hearing on the motion for new trial pursuant to La. C.Cr.P. art. 853. On December 10, 2021, this Court entered an order granting the motion to remand "for consideration of the timeliness and, if appropriate, the merits of the motion for new trial."³ After conducting extensive evidentiary hearings on the issue of the timeliness of defendant’s second motion for new trial, the trial court ruled that the motion was timely. The State filed a writ application with this Court, and on August 24, 2022, this Court granted the State’s application and determined the second motion for new trial was untimely because it was not ₃filed and disposed of prior to sentencing as required by La. C.Cr.P. art. 853(A). See State v. Perilloux, 22-332 (La. App. 5 Cir. 8/24/22), 2022 WL 3714605, writ denied, 22-1452 (La. 11/22/22), 350 So.3d 502. This appeal follows.

FACTS

This case involves allegations that defendant engaged in patterns of inappropriate behavior with young, teenage girls in an effort to groom them for escalated acts of inappropriate touching. At trial, the State presented evidence to establish that defendant, Elzey Jeffrey Perilloux, formerly a district court judge in St, John the Baptist Parish, committed acts of indecent behavior with juveniles, namely, A.G. (counts one and two), and E.H. (count three), who were his teenage daughters’ friends. The State also presented other crimes or bad acts evidence, including an allegation that defendant had also committed misdemeanor sexual battery upon S.B., who was another one of his daughters’ friends. All three counts of indecent behavior with juveniles, as well as the misdemeanor sexual battery upon S.B., were alleged to have occurred at defendant’s Louisiana residence between May and December 2017. In response, defendant and his daughters denied that he inappropriately touched A.G., E.H., or S.B.

Florida Encounter Prompting Disclosure of Prior Incidents in Louisiana

Victim, A.G., testified that at the time of the trial, she was eighteen years old and had graduated in 2020 from St. Charles Catholic High School. She explained that she had been lifelong friends with defendant’s daughter, Valerie, and also had a special relationship with defendant, who was like a second father to her. She first reported that defendant inappropriately touched her breasts shortly after a disturbing encounter with defendant during a trip to Florida in July 2017. A.G. was fifteen years old when she went on the trip with defendant, his two daughters, ₄Valerie and Dominique, and two other teenage girls, S.B. and Madison Sympson.⁴ Defendant was the only adult on the trip.

On the night of July 13, 2017, the girls decided that A.G. should ask defendant for a later curfew so they could go to the beach. A.G. recalled that she and Valerie went into defendant’s room and briefly talked to him, but then Valerie walked out because she did not want to be in the room when A.G. asked to extend their curfew. After Valerie left, defendant began playing with A.G.’s shirt and rubbing her stomach over her shirt while he was lying in bed. A.G. testified that defendant then began to slide his hand up under her shirt and that his fingers touched her when he moved them under her swimsuit bottoms and down towards the bottom of her swimsuit. A.G. backed up and said "no." Defendant then asked A.G. to "let me do your top," which A.G. believed to mean that he wanted to touch her "boobs." A.G. testified that after she backed away, defendant kept asking, "can I do your top?" and she continued to say, "no." She asked defendant if they could stay out later on the beach, and he again said, "let me do your top," and "I’m this close to saying yes." A.G. explained that she believed defendant was implying that if she allowed him to touch her, they would get a later curfew. A.G. then started walking away, and defendant stood up, grabbed her hand, and said, "don’t be scared; you don’t have to be scared." A.G. "kept saying no to what he kept asking [her] to do," and after a while, defendant sat back down on the bed and told her that she and the other girls could do whatever they wanted. A.G. testified that she was scared of defendant after this encounter.

After A.G. left defendant’s room, she told S.B. and Ms. Sympson about her encounter with defendant and how he had touched her. S.B. testified that A.G. ₅was "really red in the face" and crying so they went outside to talk. When S.B. asked A.G. for more details about where defendant touched her, A.G. put her hand near her swimsuit bottom and explained that defendant went in the front of her swimsuit bottom. S.B. then told A.G. she needed to calm down because Valerie and Dominique would be coming out and they did not want to have to tell them about what defendant did. A.G. told S.B. she did not want to tell anyone else what had happened, but S.B. knew they should report the incident. The next day, Ms. Sympson told her best friend, who was dating A.G.’s brother, about what had occurred between A.G. and defendant. When A.G.’s brother learned about the situation, he called A.G. and told her she had to tell their father and stepmother.

A.G. testified that the evening after the incident, she called her father and stepmother, who were vacationing, nearby, and told them. After they learned about her encounter with defendant, A.G.’s parents told her they were coming to pick her up and that she should wait for them at the Waffle House near the condominium where she was staying with defendant. A.G. testified that she told her parents not to contact the police because she did not want anyone to get in trouble. A.G. then told Valerie that she did not know what was going on, but that her parents needed to pick her up. While A.G. was packing to leave, defendant walked into her room, gave her a high five and asked "so we’re cool about what happened?"

A.G.’s parents contacted the police after they talked to her. Shortly after they arrived at the Waffle House, a police car pulled up. Detective Timothy Siren and Deputy Thomas Reitz of the Okaloosa County Sheriff’s Office in Florida arrived at the Waffle House and interviewed A.G. in the parking lot in the presence of her parents.⁵ At trial, A.G. testified that she told the officers that defendant went under her shirt and down into her swimsuit, but she, backed away before defendant ₆could touch her "private part." In the body camera video, A.G. began crying when officers asked her what happened. She told them that defendant put his hand under her shirt and started rubbing her stomach when she...