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State v. Mullen

Court of Appeals of Louisiana, First Circuit

December 21, 2018

STATE OF LOUISIANA
v.
CHRISTOPHER WAYNE MULLEN

          On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 579751 Honorable Richard A. Swartz, Judge Presiding

          Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, LA Attorneys for Plaintiff -Appellee, State of Louisiana

          Gwendolyn Brown Louisiana Appellate Project Baton Rouge, LA Attorney for Defendant -Appellant, Christopher Wayne Mullen

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          HIGGINBOTHAM, J.

         Defendant, Christopher Mullen, was charged by bill of information with molestation of a juvenile, a violation of La. R.S. 14:81.2(B). He pled not guilty. Subsequently, the State filed a superseding bill of indictment charging defendant with one count of aggravated rape (count one), a violation of La. R.S. 14:42, [1] and one count of molestation of a juvenile (count two). Defendant pled not guilty. Defendant filed a motion to suppress, which the trial court denied following a hearing. Immediately prior to trial, the indictment was amended to change the initials of the alleged victim from A.L. to A.S. During trial, defendant sought mistrial twice, but was denied by the trial court. After a trial by jury, defendant was found guilty as charged on both counts. The trial court imposed concurrent terms of life and twenty-five years imprisonment at hard labor, both to be served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals, raising four assignments of error. For the following reasons, we affirm the convictions and sentences.

         STATEMENT OF FACTS

         On August 6, 2016, victim A.S.[2] disclosed ongoing abuse suffered at the hands of her father, defendant, to her boyfriend over Snapchat. At about 11:00 p.m., her boyfriend and his mother, Elizabeth Lashua, drove to A.S.'s home, picked her up, and brought her to their house.[3] On the way back to her house, Lashua called the police to report what A.S. had told her.

         Detective Carley Messina, a sex crimes investigator for the St. Tammany Parish Sheriffs Office ("STSO"), testified at trial. Det. Messina said she met with A.S. at Lashua's home on August 8, 2016, and that A.S. disclosed a long history of abuse by her biological father, defendant. Det. Messina arranged for A.S. to call her father to discuss the abuse, while Det. Messina recorded it. A.S. did so, and the recording was played for the jury. Det. Messina explained during her initial testimony, and again on rebuttal, that she did nothing to edit the phone call. Det. Messina explained the phone call was in two segments because the call was disconnected and defendant called back. During the first phone call, the following exchange occurred.

A.S.: Uh, I think I might be pregnant.
Defendant: What, having sex with [your boyfriend]?
A.S.;No.
Defendant: Who'd you have sex with?
A.S.: I haven't had sex with [my boyfriend].
Defendant: Who'd you have sex with?
A.S.: Real funny, dad.
Defendant: [A.S.], it has been ab- forever.
A.S.: It hasn't been that long.
Defendant: Yes it has.
A.S.: No, it really hasn't.
Defendant: Yeah, it has.
A.S.: No, it actually hasn't.
Defendant: [A.S.], you're not pregnant.
A.S.: Yes, I think I am, dad.
Defendant: How do you say that?
A.S.: Because I've been having morning sicknesses.
Defendant: You're full of shit. Where are you fucking at?
A.S.: I'm not kidding, dad.
Defendant: Where the fuck are you at?
A.S.: Dad, why are you being like this?
Defendant: 'Cause I want to know where you're at, and why you left my house at eleven o'clock in the morning and have had me worried for fucking three days.
A.S.: I need to know when the last time was because I think I might be pregnant.
Defendant: [A.S.], I want to know where you're at.
A.S.: I need to know when the last time was. I think I might be pregnant.
Defendant: [A.S.], who's around?
A.S.: Nobody. I'm by myself right now.
Defendant: Where are you!
A.S.: Dad, I need to know when the last time was.
Defendant: [A.S.], I need to know where you're at.
A.S.: I need to know when the last time was, dad.
Defendant: I don't know. I don't remember.

         After repeatedly telling A.S. to shut up and that he did not know what she was talking about, defendant asked, "Where you at? At a police station trying to get me put in jail?"

         Following the phone call, Det. Messina set up an interview that day at the Children's Advocacy Center ("CAC") to be conducted with A.S. by a staff member there, while Det. Messina observed outside of the room. The interview was played for the jury.

         In the interview, A.S. described how when she was between six and eight years old, defendant grabbed her "girl areas," and briefly engaged in anal intercourse. Further, she explained that the abuse began "when [she] was very, very little," and continued until about a month prior to the outcry to her boyfriend. A.S. detailed the last incident in which she told defendant to stop, and how defendant had said he would, but that he never did. She said on that occasion, defendant inserted his penis into her vagina, that it hurt, and that he did not stop. She claimed defendant wanted to put her on birth control "for a long time" before, but could not because he did not have primary custody. She said he started vaginally raping her when she was around eleven years old while she lived with defendant in New York State. Defendant continued the vaginal and occasional oral intercourse after they moved back to Louisiana when she was around the age of thirteen. A.S. told the interviewer how defendant thought what he was doing was ok and that he told her he wanted her to experience everything with him first. She explained how defendant would have inappropriate contact with her "every two days" before she stopped it for good about a month before the outcry to her boyfriend. Defendant would ground A.S. and "be really mean to [her]" if she told him no. A.S. described how when she was "a little girl," defendant would cover his penis with syrup or "a liquid that would taste good" and force her to perform oral sex.

         A.S. explained that she did not reveal the continuing abuse to her mom because she did not want to "break" her mom, who was "so in love" with defendant. She further revealed that her mother has multiple sclerosis. While A.S. had told her mother of the abuse before, she wasn't believed because A.S.'s older half-sister, A.L.S., [4] made a similar outcry when A.S. was very young, but also was not believed. She also explained that her paternal grandmother had once walked in on defendant raping A.S., but did nothing after defendant insisted nothing was happening.

         Subsequently, Det. Messina obtained an arrest warrant for defendant. During defendant's arrest on August 8th, unsolicited, he told his mother, "I think she told somebody I raped her." Defendant had not been informed why he was being arrested at the time he made the declaration. After being brought to Det. Messina's office, defendant executed a waiver of rights form. A video interview was then conducted, and the recording was played for the jury. During the interview, the following exchange occurred:

Det. Messina: So, look. And look. I know y'all had sex. Okay. Was this something that was okay with her? You know, was this something along the lines of, basically, like, I'm okay with it-
Defendant: I'm not saying I did it, so if it were okay with her, and she was of age when we did it, if we supposedly did it, so why would I go to jail over it? Why would I get arrested over someone being consensual over it?

         Det. Messina also interviewed A.S.'s boyfriend, his mother Elizabeth Lashua, A.S.'s half-sister A.L.S., and Helene Parra, A.S.'s mother.

         About two months later, Det. Messina brought A.S. to the Audrey Hepburn Care Center at Children's Hospital in New Orleans. There, A.S. was interviewed by forensic nurse practitioner Anne Troy. Troy provided substantial background as to her training and experience as a long-time forensic examiner, having interviewed thousands of children, and was qualified as an expert by the trial court as a forensic nurse practitioner. Through Troy, and after a lengthy description of how the records came to exist and be identified, who had created them, and their authenticity, the State introduced into evidence A.S.'s medical records generated from the forensic interview. After providing her background and training in delayed reporting of abuse, and over defendant's objection, Troy ultimately provided a diagnosis that A.S. was a victim of child sex abuse.

         The State provided testimony from a St. Tammany Parish school administrator establishing that A.S. attended school in the parish from August 14, 2003 until August 26, 2005, and again from January 16, 2013 until the time of trial. A.S.'s maternal aunt, Sarah Giangrosso, testified and confirmed those dates relative to where A.S. and defendant lived prior to and after moving to New York. In 2014, A.S. and her mother moved in with Giangrosso so that Giangrosso could help take care of A.S.'s mother. Giangrosso testified that during that time, A.S. would "cry and ask not to go" when being "forced" to return to her father's house by her mother.

         A.S. testified at trial. She said her first memory is of living in Pearl River, Louisiana in a trailer at the age of four, and that defendant would make her perform oral sex on him. She specified that he would use "something sweet like syrup or jelly so it wouldn't taste bad." A.S. explained she attempted to tell her mother and aunt about the forced oral sex, but her mother's reaction scared her, so she said that her sister told her to say it. She said defendant "did anal" shortly thereafter with her. Later, while still in New York, when she was about ten or eleven she said defendant first began to vaginally penetrate her and perform oral sex on her. After another move in New York, her mother walked in on defendant vaginally penetrating A.S., but ultimately did nothing about it. A.S. related a similar circumstance regarding defendant's mother walking in on defendant penetrating her. Around the age of thirteen, the family moved back to Louisiana to live with defendant's mother. Defendant would vaginally penetrate A.S. there as well. A.S. detailed how defendant would get upset if she told him no, and would prevent her from visiting her boyfriend or friends. Specifically, A.S. testified that she would have to have sex with defendant in order to be allowed to visit her boyfriend.

         A.L.S., A.S.'s half-sister, testified about her experiences being raped by defendant when she was around four or five. Specifically, she testified about defendant using strawberry "lube" on his penis when he forced her to perform oral sex, and to being anally raped by defendant. She also described how A.S. indicated to her that defendant had touched her inappropriately when A.S. was about four years old. A.L.S. also explained how her other sister told her that "what happened to [A.L.S.] also happened to her" at the hands of defendant.

         Defendant testified. Defendant denied any inappropriate relationship with A.L.S., but did say he had heard she had previously claimed three different men, including defendant, had raped her. Defendant denied having sex with A.S., or ever using any substance on his penis while forcing A.S. to perform oral sex on him. Defendant speculated that A.S. accused him of the offenses only after "she started dating that boy." Defendant denied that his mother had ever seen him having sex with A.S. Defendant explained he said what he said to Det. Messina about arresting someone for consensual sex because he was "tired and wore out" after having been in custody for several hours. The prosecutor conducted an extensive, and sometimes contentious, cross-examination discussed in detail below. However, defendant ultimately claimed, without evidence, that there was more to his recorded phone call with A.S. that was somehow missing. On rebuttal, Det. Messina denied editing the recording in any way, and confirmed the recording played for the jury was the entirety of the phone call.

         ASSIGNMENT OF ERROR # 1: ERRONEOUS DENIAL OF CAUSE CHALLENGE

         In his first assignment of error, defendant contends that the trial court erroneously denied his challenge for cause of Juror 244.[5] Specifically, defendant argues that after Juror 244 disclosed that she had been a victim of childhood sexual abuse, the trial court "pressed" her into telling the court what it "needed" to hear. In response, the State argues that Juror 244 only told the trial court that despite her prior history she could be impartial.

         As an initial matter, there is no indication in the record that defense counsel objected to the trial court's denial of his challenge for cause. As La. Code Crim. P. art. 800(A) provides:

A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.

         Consequently, any claim on appeal is waived. State v. Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215, 237, cert, denied,568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (a defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror); State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d 810, 864, cert, denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008) (failure of defense counsel to object to the court's granting of the State's challenges for cause waived any complaint in this regard on appeal); State v. Cole,161 La. 827, 835, 109 So. 505, 508 (1926) (defendant voluntarily accepting jurors after challenge for cause was overruled, held to indicate waiver of complaint that name was not drawn before exhaustion of venire was announced); State v. Mills, 2013-0573 (La.App. 1st Cir. 8/27/14), 153 So.3d 481, 486 writ denied. 2014-2027 (La. 5/22/15), 170 So.3d 982, writ denied sub nom, State ex rel. Mills v. ...


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