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State v. Lincoln

Court of Appeals of Louisiana, Fourth Circuit

November 3, 2017



          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Chief of Appeals Christopher J. Ponoroff ASSISTANT DISTRICT ATTORNEY FOR APPELLEE/STATE OF LOUISIANA


          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown

          Regina Bartholomew Woods Judge

         Defendant/Appellant, 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 Defendant's conviction.


         On June 4, 2014, Defendant was charged by bill of information with indecent behavior with a juvenile in violation of La. R.S. 14:81.[1] 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.[2] 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.

         Defendant now files this appeal and asserts six (6) assignments of error.


         According to the testimony of the victim, A.F., [3] 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.

         On 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.[4] 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 gave her.

         According 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.

         Once 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 alcohol.

         At some 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.[5]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.

         She 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.

         Several days later, at a prescheduled appointment with her psychiatrist, A.F. recounted the incident with Defendant.[6] 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.

         When 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.[7]

         When 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.

         Det. 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.

         Det. 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.

         A.F.'s 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.

         D.F. 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.

         D.F. 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.

         A.F.'s 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.

         While 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.

         She 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.

         Approximately 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.

         Defendant 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.

         Defendant 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.

         Defendant 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.[8] Defendant testified that A.F. watched the movie and ate a slice of pizza, some cheesecake, and gummy bears.[9]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.

         Defendant 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.

         Defendant 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.

         In 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.

         The 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.


         Errors Patent

         In accordance with La. C.Cr.P. art. 920, we have reviewed this appeal for errors patent; we have found none.[10]

         Assignments of Error

         In his 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.

         We find that none of Defendant's assignments of error are meritorious. Our discussion as to each assignment of error is herein-below.

         Assignments of Error Numbers 1, 2, 3 & 6

         Defendant's 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.

         Applicable Law

         "Mistrial 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. 1/25/17).

         Pursuant 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 [.]"[11] "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.

         La. 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 771.")

         Assignment of Error Number 1

         In the 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 follows:

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 Center.
A. [Det. Henry] Yes.
Q. Okay. Issuing the arrest warrant for my ...

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