FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-534,
SECTION "H" Honorable Camille Buras, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Chief of
Appeals Christopher J. Ponoroff ASSISTANT DISTRICT ATTORNEY
FOR APPELLEE/STATE OF LOUISIANA
A. Barbee BARBEE & ASSOCIATES, LLC FOR
composed of Judge Rosemary Ledet, Judge Regina Bartholomew
Woods, Judge Paula A. Brown
Bartholomew Woods Judge
Timothy V. Lincoln ("Defendant"), appeals the
jury's verdict finding him guilty of attempted indecent
behavior with a juvenile in violation of La. R.S. 14:27:81.
Defendant asserts several assignments of error; finding that
none have merit, for the following reasons, we affirm
OF THE CASE
4, 2014, Defendant was charged by bill of information with
indecent behavior with a juvenile in violation of La. R.S.
14:81. On June 23, 2014, Defendant appeared for
arraignment and pled not guilty. Thereafter, Defendant filed
various pre-trial motions, including a motion for discovery
and a motion for a preliminary hearing. On September 18,
2014, the district court found probable cause to substantiate
the charges. A jury trial commenced on February 17, 2016. On
February 18, 2016, the jury found Defendant guilty of
attempted indecent behavior with a juvenile in violation of
La. R.S. 14:27:81. On August 5, 2016, the district court
denied Defendant's Motion for New Trial and sentenced
Defendant to one (1) year at hard labor, suspended, to be
served concurrently with any other sentences, with credit for
time served, and two (2) years of active
probation. The district court also required Defendant
to register with the Louisiana Department of Corrections,
apply for transfer of probation to Plaquemines Parish-the
parish of Defendant's residence-and assessed costs
against him. The trial court required Defendant to enroll in
a counseling program recommended by his probation officer and
submit to six (6) drug tests. Initially, the district court
suspended the sex offender notification and registration
requirements until the appeal became final; however, after
the State lodged an objection through a formal motion, the
district court ordered Defendant to complete registration
with the sex offender registry.
now files this appeal and asserts six (6) assignments of
OF THE FACTS
to the testimony of the victim, A.F.,  Defendant, who
was approximately thirty-two (32) years old at the time of
the crime, became acquainted with the victim, A.F. who was
sixteen (16) years old, through the social media application
("app"), Snapchat. They used the app to exchange
phone numbers with one another and began conversing via text
messaging; they texted each other for approximately four (4)
or five (5) days before deciding to go on a date.
February 13, 2014, A.F. told her parents that, in celebration
of a friend's birthday, she was going out to eat and
watch a movie with said friend. Unbeknownst to her parents,
A.F. secretly had made plans to go out with Defendant.
Between 6:30 p.m. and 7:00 p.m., Defendant picked A.F. up
from the driveway of her home, where she resided with her
parents. Thereafter, Defendant drove to a bar named
Cheers, which Defendant owned. When they arrived, A.F.
remained in the vehicle while Defendant went inside and
purchased alcoholic beverages for both of them. Defendant
returned to the vehicle with two alcoholic beverages and A.F.
stated that she took several sips of the drink that Defendant
to A.F., Defendant and she discussed plans to see a movie at
Clearview Mall, but, according to A.F., they decided against
that out of fear they would be seen together. A.F. testified
that Defendant began driving and while driving he called the
Ritz-Carlton Hotel ("the Ritz") in New Orleans to
make a room reservation. Once they arrived at the Ritz,
Defendant checked in and offered to take A.F. to a bar
located not too far from the front desk. However, according
to A.F., they decided against that because of A.F.'s age.
Instead, they proceeded to the reserved hotel room.
inside the room, Defendant ordered room service, which
included, among other things, pizza, shrimp cocktail, sodas,
and chocolate cake. Defendant also ordered the movie
"Frozen" for the two of them to watch. Once the
movie was ordered, A.F. testified that while she was sitting
on the bed, Defendant began undressing. He left his boxer
shorts on until after the room service items were delivered;
after the delivery, according to A.F., Defendant exposed his
penis and asked A.F. to use his cell phone to take a picture
of him. After the photograph was taken, Defendant removed his
boxer shorts. He then proceeded to serve A.F. with alcoholic
cocktails (fruit juices mixed with alcohol that were
contained in the mini-bar of the room); he drank unmixed
point, A.F. was underneath the covers of the bed, after
having removed her shoes and a sweater, which was covering
the shirt underneath it.According to A.F., after serving the
cocktails, Defendant got into the bed with A.F. and began
cuddling her. She relayed to Defendant that she felt
nauseated, and he told her to just "lay there." She
assumed that her blood sugar was "out of control"
because she had been drinking the alcoholic beverages with
fruit juices. A.F. recalled that, while lying in the bed,
Defendant was hugging and touching her, then she fell asleep.
awakened at approximately 3:00 a.m. the next morning, feeling
"horrible, " and no longer had on any of her
clothing. She told the Defendant she needed to go to the
hospital; but, Defendant told her that he could not take her
to the hospital, because her parents would know that they had
been together. Defendant decided to bring her back to her
parents' home, but, on the way there, A.F. needed to use
the restroom. So, Defendant stopped at Microtel Inn and
Suites ("Microtel"), but the front desk agent did
not allow A.F. to use the restroom since she was not a
registered guest. Afterwards, Defendant drove A.F. straight
home and dropped her off at the bottom of her driveway. She
walked to the front door of her parents' home and knocked
loudly to be admitted inside. Once inside, she vomited and
fell into her father's arms. Her father questioned
whether she had been drinking, but she told him that she was
experiencing diabetic ketoacidosis.
days later, at a prescheduled appointment with her
psychiatrist, A.F. recounted the incident with
Defendant. The psychiatrist urged A.F.'s mother
to bring A.F. to Children's Hospital to be evaluated by
the medical staff personnel who specialize in sexual
abuse/sexual assault cases involving minors.
A.F. arrived at Children's Hospital, she was referred to
the Advocacy Center, which is located on the hospital's
campus, for evaluation and interviewing purposes. The
Advocacy Center requested the assistance of the New Orleans
Police Department ("NOPD"). Initially, Detective
Tyra Pruitt ("Det. Pruitt") of the NOPD was
dispatched to the location. Because her specialty was child
abuse, and not sex crimes, she was replaced with Detective
Reuben Henry ("Det. Henry") of the Sex Crimes
Division of NOPD. Det. Henry testified during
cross-examination that Det. Pruitt believed that A.F. and
Defendant had engaged in sexual intercourse, therefore making
this case more appropriate to be placed with a sex crimes
officer, as opposed to a child abuse officer.
Det. Henry arrived at the Advocacy Center, he observed a
forensic interview that was being conducted of A.F. by a
forensic interviewer. According to the testimony given by
Det. Henry at trial, he recalled the same factual scenario
that A.F. stated during her testimony on the witness stand.
Henry testified further that after observing the forensic
interview, he obtained a search warrant for video footage and
documents from the Ritz and worked with Detective Shawn
Burbano ("Det. Burbano") of the Plaquemines Parish
Police Department to obtain video footage from Microtel, in
order to corroborate what A.F. had stated during the forensic
interview. The State showed Det. Henry the video footage,
wherein he identified images of A.F. and Defendant at the
Ritz. Det. Henry also identified a receipt from the Ritz
showing a charge for the room and honor bar purchases
totaling over $100.00. He further identified an image of
Defendant and Defendant's truck in the video footage
obtained from Microtel.
Henry stated that after he obtained the evidence, he met with
A.F.'s father, D.F., who gave Det. Henry A.F.'s cell
phone. Det. Henry first secured the cell phone with the IT
Department of NOPD. He later met with Det. Burbano and
Detective Durnin, of the IT Department of Plaquemines Parish
Police Department, who conducted a digital forensic
examination of the phone. Det. Henry was able to retrieve
images, as well as a log of incoming and outgoing calls and
text messages. After collecting all of the evidence, Det.
Henry obtained an arrest warrant for Defendant.
father, D.F., testified that between approximately 3:30 a.m.
and 4:30 a.m. on February 14, 2014, he heard a knock at his
front door; when he opened the door, A.F. fell into his arms
and vomited all over him. He carried A.F. to the sofa, laid
her down, and asked her what happened. A.F. told him that she
was at a sleepover at a friend's house and that she made
her friend bring her home after she (A.F.) and another girl
began fussing with one another. D.F. relayed that A.F. told
him the same story the next day.
testified that he knew Defendant from people in the town
talking about him and from a bar, Bucks & Boars, owned by
Defendant where D.F. used to "shoot pool." D.F.
indicated that he had been to the bar approximately seven (7)
or eight (8) times and would speak with Defendant while
there; usually, the conversations were about "hunting
and shooting hogs and shooting pool and boiling
crawfish." D.F. further stated that he and Defendant had
mutual friends and that Defendant had frequented D.F.'s
home on two occasions.
recalled that, on approximately February 9 or 10, 2014,
Defendant and another friend had come to his home. On the
next day, Defendant, along with four (4) or five (5) other
people, brought two sacks of crawfish to his home, where they
engaged in boiling crawfish and talking. During both
occasions, A.F. was present at the house, but the only
interaction between Defendant and A.F. occurred when
Defendant mentioned something about Snapchat to A.F. At that
time, D.F. warned Defendant that he "better not catch
[him] Snap-chatting [his] daughter." According to D.F.,
Defendant laughed it off, and no further interaction was
observed by D.F.
mother, M.F., was called to testify at the beginning of the
second day of trial. She indicated that she had frequented
Bucks & Boars, and was aware that Defendant owned it. She
admitted to having known Defendant for a few years prior to
the incident. She recalled seeing him at her home during
February 2014. She indicated that Defendant had stopped at
her home several times during the month, but she denied
inviting him there. She stated that several of her friends
invited Defendant over. While at their home, Defendant
invited M.F. to his bar to shoot pool; he indicated that he
would shut down the bar so that her three children, including
A.F., could accompany them to the bar. M.F. indicated that
she does not allow her children to go to bars, so she and
D.F. went to the bar without the kids.
at the bar, M.F. recalled that Defendant questioned whether
she had a problem with him, which she denied. In reply to
that, Defendant stated, "Well, then you wouldn't
have a problem with me dating your daughter." M.F. told
Defendant that was not going to happen, but she was under the
impression that Defendant was joking.
recalled the night of February 13, 2014, and A.F. telling her
that A.F.'s friend was going to pick A.F. up in order for
them to go to town with other friends. During the night M.F.
texted A.F., and A.F. told M.F. that she was on her way to
Copeland's. Early the next morning, at approximately 3:00
a.m., M.F. awakened to see A.F. vomiting on D.F. and D.F.
taking care of A.F.
a week later, M.F. noticed A.F. crying in her room, and A.F.
told her that Defendant had taken advantage of her. M.F.
denied ever knowing that A.F. and Defendant were in any type
of romantic relationship. She further stated that she never
would have approved of Defendant being in a relationship with
her sixteen year old daughter.
testified that he owns Bucks & Boars Bar in Buras,
Louisiana, and has owned it since 2009. He initially met
A.F.'s parents as they frequented his bar at least once
monthly since its inception. He played pool with D.F. and
enjoyed a cordial relationship with both D.F. and M.F. He
indicated that he first met A.F. through his
ex-girlfriend-while Defendant dated his ex-girlfriend, A.F.
dated his ex-girlfriend's brother. He stated that he
began conversing with A.F. four (4) years earlier than the
incident, when she added him as a friend on Facebook and
Instagram. According to Defendant, approximately two (2)
years before February 2014, he and A.F. began conversing with
one another after he went on vacation to Disney World in
Florida and posted pictures, to which A.F. responded that she
liked Disney World.
stated that the next time he saw A.F. was when he accompanied
a friend of his over to the home of A.F.'s parents. He
stated that when he arrived, he and A.F. hugged one another,
but no other interaction took place. He further testified
that on another occasion, he was at his friend's home and
A.F.'s parents were there. While there, he and A.F. were
communicating via Snapchat. A.F.'s father caught him on
Snapchat with his daughter and asked Defendant if he was
Snap-chatting with his daughter. According to Defendant, when
Defendant told him yes, they were friends, D.F. said that he
did not have a problem with that. Thereafter, Defendant and
A.F. continued to communicate with one another via Snapchat.
recounted that as Valentine's Day approached, A.F.
continued to communicate with him via Snapchat and text
messaging; A.F. texted Defendant that she did not have plans
for Valentine's Day. So, Defendant offered to pick up
A.F. and "go up in town or something, go see a
movie." Defendant testified that he picked up A.F. and
went to his bar, "Cheers." According to Defendant,
he went inside to get some paperwork and brought back water
for A.F. to drink. Defendant asked A.F. what she wanted to
do; A.F. responded that she wanted to see a movie and have
dinner. Initially, the plan was to see a movie at the
Clearview Shopping Center; however, because there were
limited dining options there, according to Defendant, A.F.
suggested they go to the Ritz. He further stated that A.F.
wanted to go to the Ritz, because she had seen
Defendant's posts and pictures on Facebook showing that
he had been to the Ritz in Miami and New Orleans. Defendant
told A.F. that the Ritz has room service and that she could
rent movies. Thereafter, Defendant and A.F. checked in at the
Ritz. Once in the hotel room, A.F. picked up the room service
menu and Defendant asked her what she would like to eat.
Defendant ordered shrimp cocktail and two (2) beers for
himself along with other items that A.F. wanted to try. As
Defendant ordered room service, A.F. ordered a Disney movie
on the television. According to Defendant, he and A.F. talked
and watched the movie. Defendant testified that when room
service arrived, he answered the door fully clothed,
including his shoes. Defendant testified that A.F. watched the
movie and ate a slice of pizza, some cheesecake, and gummy
bears.At some point while in the room, A.F.
disclosed to Defendant that she was a diabetic. Approximately
thirty (30) minutes after A.F. ate half of the cheesecake,
she complained that her stomach hurt and that she felt sick.
Then, Defendant asked her, "[W]hat do you want to do? Do
you want to go home?" According to Defendant, A.F. said
it was fine if he took her home because she had insulin
there. Defendant further testified that A.F. lifted her shirt
to reveal an insulin pump of which he was unaware.
testified that within seven (7) or eight (8) minutes, he and
A.F. were downstairs and drove away in his truck. A.F. told
Defendant that she needed to use the bathroom, so Defendant
pulled into a hotel, which refused to allow A.F. to use the
restroom because she was not a registered guest. Next,
Defendant arrived at A.F.'s home, he watched her until
she went inside the house and shut the door, and then left.
asserted that days after this incident, D.F. invited him to
his home to cook crawfish. While D.F. cooked, Defendant
talked with M.F. and A.F. Defendant testified that A.F.'s
parents knew that he was text messaging her; however, they
were not aware that Defendant had taken A.F. out for
Valentine's Day. Defendant stated that D.F. asked him
about Snapchat and then downloaded the app to his iPhone.
Defendant identified various Snapchat photos taken on
February 24, 2014, in which he is pictured with D.F., A.F.,
and A.F's younger siblings. Defendant acknowledged that
later that same evening, A.F. emailed him to break up with
him because she was tired of sneaking around. Defendant
stated that his relationship with A.F. was platonic.
Defendant testified that A.F. continued to text message him
until February 28, 2014.
response to questions regarding whether Defendant was trying
to evade arrest and prosecution for the current charge,
Defendant testified that he travels to Miami to vacation and
relax and usually stays between four (4) and seven (7) days.
On March 6, 2014, Defendant booked a trip to Miami through
his travel agent and traveled to Miami on March 9, 2014.
Defendant further testified that he booked this trip to Miami
before being interviewed by police in this matter.
final witness of the trial was Blayde Franicevich
("Franicevich"). He testified that he has known
A.F. since they attended South Plaquemines High School
together and they dated in April 2015. He also stated that he
knew Defendant. According to Franicevich, A.F. confided to
him that "she didn't do anything with [Defendant],
that it was just hearsay and that it was her dad pushing her
to do it all . . . she didn't want to get [Defendant] in
trouble so she was getting in trouble by her dad for not,
like, pressing charges on him." Franicevich asserted
that A.F. and Defendant were "just buddies" and no
sexual acts transpired.
accordance with La. C.Cr.P. art. 920, we have reviewed this
appeal for errors patent; we have found none.
appellate brief, Defendant assigns the following errors:
1. The district court erred in refusing to grant a mistrial
after a detective allegedly made prejudicial remarks alluding
to other crimes or bad acts in his testimony.
2. The district court erred in refusing to grant a mistrial
after the victim's mother testified that Defendant had
raped her daughter.
3. The district court erred in refusing to grant a mistrial
when the State indicated that Defendant may have raped the
victim in closing arguments.
4. The district court erred in failing to adequately question
a juror before replacing her with an alternate.
5. The district court erred in giving conflicting and
confusing jury instructions.
6. The multiple prejudicial comments before the jury amount
to cumulative errors, which warrant a reversal.
that none of Defendant's assignments of error are
meritorious. Our discussion as to each assignment of error is
of Error Numbers 1, 2, 3 & 6
first three assignments of error address the district
court's refusal to grant a mistrial after he alleges that
prejudicial statements and statements of other crimes
evidence were made by a detective, the victim's mother,
and during the State's closing arguments, respectively.
The sixth assignment of error concerns what Defendant asserts
is the cumulative nature of the alleged prejudicial
statements that, when considered as a whole, warrant a
reversal. For ease of discussion, all four of these
assignments will be discussed consecutively.
is a drastic remedy which should only be declared upon a
clear showing of prejudice by the defendant." State
v. Coleman, 2012-1408, p. 12 (La.App. 4 Cir. 1/8/14),
133 So.3d 9, 20 (citing State v. Leonard, 2005-1382,
p. 11 (La.6/16/06), 932 So.2d 660, 667). Further, "[t]he
mere possibility of prejudice is insufficient to warrant a
mistrial." Id. "[E]xcept for instances in
which the mandatory mistrial provisions of La. C.Cr.P. art.
770 are applicable, [the remedy] should only be used when
substantial prejudice to the defendant is shown."
Id. (quoting State v. Castleberry, 98-1388,
p. 22 (La. 4/13/99), 758 So.2d 749, 768). Motions for
mistrial are governed by La. C.Cr.P. art. 770, the mandatory
mistrial provision, and La C.Cr.P. art. 771, the
discretionary mistrial provision. State v. Griffin,
2015-0125, p. 29 (La.App. 4 Cir. 9/16/15), 176 So.3d 561,
578, writ denied, 2015-1894 (La. 11/7/16), 208 So.3d
896, reconsideration not considered, 15-1894 (La.
to La. C.Cr.P. art. 770(2), a mistrial shall be ordered upon
motion of a defendant "when a remark or comment, made
within the hearing of the jury by the judge, district
attorney, or a court official, during 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 admissible
[.]" "An admonition to the jury to
disregard the remark or comment shall not be sufficient to
prevent a mistrial. If the defendant, however, requests that
only an admonition be given, the court shall admonish the
jury to disregard the remark or comment but shall not declare
a mistrial." La. C.Cr.P. art. 770.
C.Cr.P. art. 771 provides for discretionary mistrial or
admonition when a remark or comment made within the hearing
of the jury during trial or in argument is of such a nature
that it might create prejudice against the defendant in the
mind of the jury. See also La. C.Cr.P. art. 775
(providing that, "upon motion by a defendant, a mistrial
shall be ordered . . . when prejudicial conduct in or outside
the courtroom makes it impossible for the defendant to obtain
a fair trial, or when authorized by Article 770 or
of Error Number 1
first assignment of error, Defendant asserts that the
district court erred in refusing to grant a mistrial after
Det. Henry alluded to other perceived crimes or bad acts
during his testimony, in violation of La. Code Crim. Proc.
Art. 770(2) and La. C.E. arts. 403 and 404(B). The portion of
Det. Henry's testimony of which Defendant complains is as
Q. [Defense counsel] [D]id you do anything in this case
besides the search warrant at the Ritz-Carlton and helping
behind the scenes with the forensic interview at the Advocacy
A. [Det. Henry] Yes.
Q. Okay. Issuing the arrest warrant for my ...