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State v. Barr

Court of Appeals of Louisiana, First Circuit

February 28, 2019

STATE OF LOUISIANA
v.
SCOTT ALAN BARR

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 584986 "G" Honorable Scott Gardner, Judge Presiding

          Warren L. Montgomery District Attorney J. Bryant Clark, Jr. Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana

          Mary C. Hanes New Orleans, Louisiana Counsel for Defendant/Appellant Scott Alan Barr

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

          McCLENDON, J.

         Defendant, Scott Alan Barr, was charged by bill of information on counts one and two with sexual battery of a victim under the age of thirteen, violations of LSA-R.S. 14:43.1C(2), and he entered a plea of not guilty. After a trial by jury, defendant was found guilty of the responsive offense of sexual battery, as to each count. Defendant was sentenced on each count to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served concurrently. Defendant now appeals, assigning error to the trial court's denial of his motion for a mistrial. For the following reasons, we affirm the convictions and sentences.

         STATEMENT OF FACTS

         On July 22, 2016, the St. Tammany Parish Sheriff's Office received a report of sexual abuse of a child, C.S. (the victim), and deputies responded to Ochsner Medical Center in Slidell.[1] The case was assigned to Detective Carli Messina. Previous thereto, in 2014, when the victim was three years old, she and her mother, E.B., moved in with E.B.'s mother and stepfather. At the time, defendant, E.B.'s stepbrother, also lived there. According to E.B.'s trial testimony, her mother would routinely babysit the victim while E.B. was at work. E.B. further testified that the victim had a close relationship with defendant, whom she called "Uncle Ottie," "Uncle Scottie," and/or "Uncle Scott." E.B. stated that the victim would sometimes watch television and/or eat snacks in defendant's room and confirmed that they would be in the room alone at times.

         Around October of 2015, E.B. observed the victim as she touched herself in an unusual manner. Specifically, E.B. testified that the victim began "tugging on her nonnie" while they were in E.B.'s bedroom.[2] As defendant walked past E.B.'s bedroom, the victim stated, "Uncle Ottie, come play with my nonnie again."[3] In explaining why she did not contact the police at the time, E.B. stated that the victim was very young and that she was not sure if the victim knew what she was saying. However, the victim's statement did influence E.B. to move to a different address in order to get the victim out of the residence with defendant. On July 21, 2016, when the victim had just turned five years old, the victim told E.B. that her nonnie was hurting. When E.B. questioned her in regard to the pain, the victim stated that she had been rubbing her nonnie too hard. E.B. told the victim that she was not supposed to touch her nonnie, and at that point, the victim asked, "[I]f I can't do it, how come my Uncle Ottie can[?]" She added, "Uncle Ottie touches my nonnie." The next morning, E.B. questioned the victim and she confirmed that defendant was the only person who ever touched her nonnie. E.B. contacted the victim's pediatrician, who instructed her to take the victim to Ochsner Medical Center.

         On July 27, 2016, the victim was interviewed at the CAC Hope House. During the interview, the victim stated that defendant, "Uncle Scott," pulled down her pants and touched the inside of her "nonnie" with his finger. When asked to describe how that made her feel, the victim stated that it felt like a bear was biting her nonnie, adding that it hurt. The victim further stated that defendant pulled down his clothes and made her touch "his," adding that when she did so "it really gets redder [sic]." She stated that defendant made her touch it with her hand only. The victim further stated that this happened a lot of times and that each time, it occurred in defendant's bedroom. The victim was six years old when the trial took place. When asked if she remembered telling her parents about "a bad touch," the victim stated, "That was a really long time ago." When questioned as to who she previously indicated gave her a "bad touch," the victim gave responses such as "I can't remember," and "I don't know." The victim confirmed that the topic made her feel "scared," and responded "Yes," when asked, "Do you think that man's scary?"

         FBI Special Agent Todd Schliem testified that he interviewed defendant after the St. Tammany Parish District Attorney's Office informed him that defendant requested to be interviewed. After Agent Todd informed defendant of his Miranda[4] warnings, he proceeded with the unrecorded interview. Agent Todd questioned defendant regarding his interaction with the victim, and defendant stated that while he had not spent a substantial amount of time alone with the victim, she would sometimes come into his bedroom to watch Netflix. Defendant talked about an incident in which the victim was dancing while watching a movie, became overheated, and began to take off her clothes. Defendant stated that the incident made him feel uncomfortable. Defendant also recalled an occasion when the victim was three or four years old and asked defendant something to the effect of, "Do you want to play with my nonnie?" Defendant stated that he later realized that the victim was referring to her genitals. Defendant confirmed that the victim asked the question in the presence of other individuals.

         When defendant was asked if there was any time that he may have touched the victim's genitals, defendant stated that he was unsure or did not recall. He added that he may have inadvertently touched the victim while picking her up to either sit her on his arm or straddle her on his shoulders. Defendant further stated that he was unsure or could not recall whether the victim had ever touched his penis, stating that the victim may have inadvertently done so while hugging his leg. Agent Schlem further testified that defendant noted that the victim would sometimes get under the covers with him and he would rub her back. Defendant denied ever touching the victim in a sexual manner or that she ever touched him in a sexual manner. When defendant testified at trial, he confirmed that he was interviewed by Agent Schlem. He further confirmed that he would lay in bed with the victim at times, stating that this would only happen in E.B.'s bed. He repeatedly denied committing the offenses charged in this case, stating in part, "I did not. I'm afraid that someone did, but it wasn't me."

         DENIAL OF MOTIONS FOR A MISTRIAL

         In the sole assignment of error, defendant contends that the trial court abused its discretion in denying his motions for a mistrial after a State witness, Detective Messina, twice commented on his post-Miranda silence. Defendant argues that an admonishment would not have been sufficient to cure the prejudice. Defendant further argues that the prosecutor had no reason to ask Detective Messina if she spoke to defendant after he arrived at the St. Tammany Parish jail. He claims that the prosecutor deliberately solicited the testimony in question in an attempt to ascribe a guilty meaning to defendant's post-Miranda silence and to exploit his failure to claim his innocence. Defendant contends that subsequently, on cross-examination, Detective Messina unresponsively commented that defendant did not provide a statement to the investigators. Defendant argues that as an experienced officer, Detective Messina should have known better than to make such a comment at trial. He argues that the detective's comments on ...


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