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State v. Dowden

Court of Appeals of Louisiana, Third Circuit

August 2, 2017

STATE OF LOUISIANA
v.
TIMOTHY EUGENE DOWDEN, SR.

         APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 73621 HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

          Don M. Burkett District Attorney, Eleventh Judicial District Court Anna L. Garcie Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Edward K. Bauman Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Timothy Eugene Dowden, Sr.

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          D. KENT SAVOIE, JUDGE

         Defendant, Timothy Eugene Dowden, Sr., was charged by bill of information with indecent behavior with a juvenile, a violation of La.R.S. 14:81. A jury trial was held, and on March 16, 2016, Defendant was found guilty of the lesser included offense of attempted indecent behavior with a juvenile, a violation of La.R.S. 14:27 and 14:81.

         On June 16, 2016, Defendant was sentenced to three years at hard labor. Defendant objected to the sentence and subsequently filed a motion to reconsider sentence which was denied on July 28, 2016. Defendant now appeals, assigning two errors.

         FACTS

         C.R., [1] the victim, was friends with Defendant's daughter who were both fourteen years old at the time of the incident. The incident occurred on October 2, 2012, while C.R. was spending the weekend at their house. On Friday evening, Defendant's daughter, C.R., Defendant, his girlfriend, and the girlfriend's friend, Brandi O'Neill (Ms. O'Neill or female friend), along with some other people, were at Defendant's home. The adults were drinking alcoholic beverages. At some point in the night, Defendant was going to drive Ms. O'Neill and her sons back to her apartment. Defendant's daughter and/or Defendant asked C.R. to ride with Defendant in case he got lost because he and Ms. O'Neill had been drinking. C.R. sat in the middle of the truck cab, while Defendant drove and Ms. O'Neill rode on the passenger's side. During the drive to Ms. O'Neill's apartment, Defendant was masturbating while rubbing C.R.'s leg when he would shift gears.

         On May 22, 2014, an arrest warrant was issued for Defendant.

         At trial, Stuart Anthony, a deputy for the Sabine Parish Sheriff's Office, testified that he responded to a call received on October 3, 2012, regarding a "sexual battery involving a juvenile." The officer recalled he arrived at the victim's residence around 10:00 p.m. After getting permission from the victim's mother to speak to the victim, the victim gave a written statement. The statement was admitted into evidence.[2] After taking the statement and interviewing C.R. and her mother, the officer prepared a report. At trial, the deputy testified that he noted, in his report, C.R. stated every time Defendant would shift gears in the truck, he would rub her leg. Additionally, C.R. talked about Defendant's hand moving "up and down." On cross-examination, the deputy acknowledged his report, based on C.R.'s interview, did not contain the words penis or masturbation. The deputy referred the matter to a detective who referred the victim to Project Celebration, a non-profit organization which is part of the Child Advocacy Center.

         Fred Denham, a former officer with the Sabine Parish Sheriff's Office, testified at trial that he was involved with the investigation while employed by the sheriff's office. He recalled being present when the victim was interviewed at Project Celebration on October 5, 2012. During the interview which was conducted by the Project Celebration counselor, the officer discovered there were three people in the vehicle when the alleged incident occurred: they included the victim, Defendant, and a passenger. The officer admitted, to his knowledge, the passenger was not interviewed.

         Jason Rivers, a former employee of the Sabine Parish Sheriff's Office, testified that he interviewed Defendant in September 2013. He recalled the matter concerned Defendant having a sexual relationship with Defendant's daughter. Also, Mr. Rivers questioned Defendant about exposing himself and masturbating in front of C.R. Defendant denied C.R. ever rode in his truck.

         Brandy Goins, employed by Project Celebration, conducted a video-taped interview with the victim on October 5, 2012. Law enforcement officers, Daryl Cassell and Fred Denham, and a co-worker at Project Celebration, Carrisa McCormick, observed the interview. Mrs. Goins testified that she informed C.R. there were "people that help children watching in another room." Additionally, Mrs. Goins explained that C.R. knew the interview was being recorded. The DVD of the interview was admitted into evidence and played for the jury.

         A review of the DVD indicated the victim explained that she was staying with Defendant's daughter and another friend at Defendant's home for the weekend. On Friday, Defendant, his girlfriend, and another female friend were at the house. C.R. recalled Defendant's girlfriend had passed out from drinking. When Defendant was about to take the female friend home, he asked C.R. several times to ride with them. C.R. rode in the cab of the truck. She was in the middle, Defendant was driving, and the female friend was on the passenger's side. The female friend's children were in the back of the truck. As they drove to the female friend's home, C.R. recalled Defendant rubbed the shin of her leg from the knee down every time he would shift gears. During the trip, she noticed Defendant's hand moving back and forth and saw his penis. She described Defendant as "jacking off." C.R. stated Defendant was wearing khaki shorts and a t-shirt. Also, Defendant asked C.R. repeatedly if she was scared. C.R. stated she had her cell phone with her in the truck, and she was communicating with Defendant's daughter.

         During the interview, C.R. noted that they dropped the female friend and her children off at an apartment. C.R. stated that on the ride back to Defendant's home, she moved over to the passenger's side of the truck. She explained the gear shift was hurting her knee. C.R. further recalled, on the trip back to Defendant's home, Defendant told her she was sexy for a fourteen year old and asked her if she wanted to go swimming.

         When they arrived back at Defendant's home, C.R. stated that she jumped out of the truck and told her friends what had happened. Defendant's girlfriend asked them several times what was going on, and they told her.

         C.R. stated that Defendant did not bother her anymore that weekend, and she stayed at Defendant's home until Sunday. C.R. was of the opinion Defendant may not recall what happened because he was drunk.

         During C.R.'s testimony at trial, the State questioned her about what happened in the truck, and the following pertinent exchange occurred:

A. We were going down the road and he-- every time he went to shift, he would rub down my leg and back up it and then he kept asking if I was scared and I didn't know why. And then I looked over to my left and I see something that I shouldn't have seen. It wasn't supposed to happen.
Q. Okay. Well, tell me because I need you to-- I need you to be and I know it's hard, okay, but I need you to be specific about what you saw.
A. He was over there jacking off next to me while he was driving down the road.
Q. Now, did you see his hands?
A. Yes, ma'am.
Q. What were his hands doing?
A. Jacking off.
Q. What were his hands doing?
A. Going up and down.
Q. Okay. Were his hands touching something while they were going up and down?
A. Yes, ma'am.
Q. What was that?
A. His penis.
Q. And you saw his penis?
A. Yes, ma'am.

         C.R. recalled that it was dark in the truck. The only lights in the truck were from the dashboard lights. She denied there was any light coming off the cell phone she had with her in the truck. C.R. further testified that Ms. O'Neill, who was also in the cab of the truck, did not see anything. C.R. stated that, after dropping off Ms. O'Neill, she moved over to the passenger's side of the truck. On the trip back, Defendant asked C.R. if she wanted to go swimming, and he also asked if she was scared.

         When C.R. returned home, she told her mother what happened, and her mother called the police.

         On cross-examination, the following pertinent exchange occurred:

Q. I'm going to ask you some questions now based on what you said happened, okay, and I'm going to be asking some really specific questions. I'm not trying to embarrass you or confuse you or anything, okay? What you say happened was that Mr. Dowden was driving down the road with his penis in his hand jacking off. Is that correct?
A. Yes, sir.
Q. His penis was out of his pants?
A. Yes, sir.
Q. He was wearing shorts or long pants?
A. I don't remember.
Q. You don't remember?
A. No, sir.
Q. Do you remember were the pants unzipped, were they pulled down to his ankles?
A. No, sir.
Q. Okay. What hand was he using to masturbate with, right or left?
A. His right hand.
Q. His right hand?
A. Yes, sir.
Q. Okay. But you clearly saw his penis in his right hand?
A. Yes, sir.

         Following, Defendant's attorney questioned C.R. about the passenger and the following pertinent exchange occurred:

Q. The passenger, Brandi, she's sitting in the passenger seat, window is right here?
A. Yes, sir.
Q. Kids are in the bed of the truck?
A. Yes, sir.
Q. So if I am sitting here and my children are in the bed of the truck and I've got to look and see what they're doing, I look to my left to look back through the rear window of the truck. It's your testimony that Brandi never saw Mr. Dowden ...

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