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State v. Allen

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

STATE OF LOUISIANA Appellee
v.
WILLIAM TIMOTHY ALLEN, IV Appellant

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court Nos. 194, 015, 194, 015A & 194, 015B Honorable A. Parker Self, Jr., Judge

          JOHN D. & ERIC G. JOHNSON Counsel for Appellant LAW FIRM, LLC By: Eric G. Johnson

          STROUD, CARMOUCHE & BUCKLE, P.L.L.C. By: A.M. Stroud, III Nichole M. Buckle

          J. SCHUYLER MARVIN Counsel for Appellee District Attorney

          Before PITMAN, STEPHENS, and McCALLUM, JJ.

          PITMAN, J.

         The trial court convicted Defendant William Timothy Allen, IV, of two counts of computer-aided solicitation of a minor and one count of indecent behavior with a juvenile. As to the convictions of computer-aided solicitation of a minor, the trial court sentenced Defendant to five years imprisonment at hard labor, all but two years suspended, to be served without the benefit of parole, probation or suspension of sentence. As to the conviction of indecent behavior with a juvenile, the trial court sentenced Defendant to two years' imprisonment at hard labor. The trial court ordered that the three sentences be served concurrently. For the following reasons, we affirm Defendant's convictions. We affirm his sentence for the conviction of indecent behavior with a juvenile, we vacate his sentences for the convictions of computer-aided solicitation of a minor and we remand the matter to the trial court for resentencing.

         FACTS

         The state filed three bills of information, charging Defendant with multiple crimes. These bills of information were consolidated for trial. A bench trial commenced on March 6, 2018, on the charges of computer-aided solicitation of a minor, in Docket No. 194, 015; indecent behavior with a juvenile, in Docket No. 194, 015A;[1] and computer-aided solicitation of a minor, in Docket No. 194, 015B. The state nolle prossed all other charges.

         Brian Montgomery testified that in 2011 and 2012 he was a sergeant with the Springhill Police Department (the "SPD") and a member of the Northwest Louisiana Internet Crimes Against Children Task Force. He stated that on October 18, 2011, he conducted a search on Craigslist using the keyword "any age." He located an advertisement for "a subject wanting to use the restroom in somebody's mouth." He responded to the advertisement by email and identified himself as a 14-year-old from Springhill, Louisiana, named Kendra Thompson ("Kendra"). He received an email response from Rick Richards, using the email address rick.p.richards@gmail.com, which said "14? I think I'll have to pass." He testified that although Richards first stated that Kendra was too young, the two continued communicating on that date. Richards told Kendra, "If you hadn't said you were 14 I'd be in my car right now on the way." When Kendra suggested that she send Richards a photograph, he responded, "Honestly, I wouldn't have a problem with a 14YO. I don't however, like the idea of going to jail." Their conversation became sexual in nature, and they discussed having oral sex and Kendra urinating and defecating on Richards. They then made plans to meet the next day after Kendra finished with school. Later that evening, Richards cancelled their meeting and stated that "meeting someone that claims to be a 14 year old on the internet probably isn't a really smart thing to do… Unless you can convince me otherwise."

         Sgt. Montgomery further testified that he, as Kendra, had sporadic conversations with Richards between October 18, 2011, and March 12, 2012. On October 23, 2011, Richards initiated a sexual conversation with Kendra and sent her a link to a photograph gallery. Sgt. Montgomery clicked on the link, but did not receive any photographs from it. They also discussed meeting in person. They continued exchanging emails over the next several days and exchanged phone numbers to communicate by text message.

         Sgt. Montgomery also testified that on January 15, 2012, he, as Kendra, asked Richards if he had anyone respond to his Craigslist advertisement, and Richards responded, "Yes, but nobody your age or attractiveness. Both just peed on me." Richards then asked Kendra if she would be in the Bossier City area soon, stating that he would "like to see that you are who I think you are. That opens up the possibility of other things happening." Richards continued to ask Kendra to describe what she would like to happen between them sexually. On January 23, 2012, Kendra told Richards that she was in Bossier City, and Richards replied that he would like to see her in person so that he could see "who/what I think you are. That would make it possible to see you in the future for other, more fun, things." Kendra responded that she did not like the idea of him knowing who she was but her not knowing who he was. Richards responded that he agreed it was unfair but the "consequences I face for being wrong are really, really high."

         Sgt. Montgomery further testified that on January 24, 2012, he created two corrupted photograph files and sent them to Richards so that he would believe that Kendra had attempted to send him photographs of her breasts and of herself in underwear. On February 10, 2012, he, as Kendra, answered a second Craigslist advertisement from Richards. Richards again indicated that he would like to meet Kendra. On February 25, 2012, Richards conducted a sexually explicit conversation with Kendra via Google Chat during which they discussed anal sex, oral sex and Kendra urinating and defecating in Richards's mouth. Richards also sent Kendra a photograph of his penis, a photograph of a cup that allegedly contained his semen and urine and a photograph of his lips to a straw in that cup. They again discussed plans to meet in person.

         Sgt. Montgomery also testified that in late February 2012, he communicated with Detective Shannon Mack of the Bossier Parish Sheriff's Office, who was also a member of the Northwest Louisiana Internet Crimes Against Children Task Force. He informed her that Richards had expressed an interest in a juvenile and that the conversation had turned sexual in nature, but that Richards would not come to Springhill for a meeting. He hoped that because Det. Mack was located in Bossier City, she would be able to arrange a meeting with Richards. Det. Mack created an internet persona named Brittani Storm ("Brittani"). Sgt. Montgomery testified that Kendra claimed to know Brittani through home school programs. On the evening of March 11, 2012, Kendra and Richards discussed that Brittani asked to be Richards's friend on Facebook. Richards mentioned possibly meeting both Kendra and Brittani.

         Sgt. Montgomery further testified that on March 11, 2012, he, as Kendra, and Richards planned a meeting at 2:00 a.m. in Springhill so that they could engage in the previously discussed sexual activity. He provided Richards with an address for Kendra's house on 12th Street NW, Springhill, Louisiana. Richards instructed Kendra to drink diet soda to make her urine taste better, but not to hold her urine for him. Sgt. Montgomery then contacted members of the Webster Parish Sheriff's Office and the Cullen Police Department to assist in staking out the area around 12th Street NW. At 1:23 a.m. on March 12, 2012, Richards sent a Facebook message to Kendra that he was changing clothes and getting in his vehicle. At 1:35 a.m., Richards reported that he was "on the road. And driving fast." He stated that he was not nervous, but "eager." At approximately 1:45 a.m., Richards informed Kendra that he was in Springhill and asked her to turn on a light at the house. Richards had previously described himself as a white male, approximately 5'11", 210 pounds, with brown hair, and stated that he would be driving a Honda.

         Sgt. Montgomery further testified that he observed a Honda sedan on Highway 157, near its intersection with 12th Street NW, that traveled south on 12th Street NW, turned around and proceeded the other way down 12th Street N.W. and then repeated this route. He left his observation point and conducted a traffic stop of the vehicle. Responding law enforcement officers secured the driver of the vehicle and advised him of his Miranda rights. Sgt. Montgomery identified the driver as Defendant and noted that Defendant's appearance matched the description Richards gave of himself. Law enforcement officers searched Defendant's vehicle and photographed its contents. A backpack, a pistol, a lock pick tool, an iPhone, a SIM card, a digital camera, multiple digital media storage devices, two Leatherman tools, a GoPro camera, a video camera, a tri-pod, a GPS tracker, a laptop computer and a wedding ring were located in Defendant's vehicle.

         On cross-examination, Sgt. Montgomery testified that he was aware that on October 9, 2012, the defense issued a subpoena for the SPD router that had been in use on October 18, 2011. He stated that when he received the subpoena, he "looked at a router," but he could not confirm that it was the same router in use on October 18, 2011. He acknowledged a letter written in response to the subpoena, dated December 21, 2012, which reported that the SPD no longer had the router in question. He explained that when the City of Springhill changed internet providers, the router was returned to the previous company. He testified that although he was the person in the SPD in charge of the equipment, he did not know how the SPD's router was configured or what its capabilities were. He stated that a router is a device that brings internet into a home or business and that the SPD's router would store a list of websites, email addresses and IP addresses to which the SPD connected. When asked if it would store a list of places trying to connect to the SPD, he replied, "I guess it should." He testified that he had been trained in how to preserve electronic evidence, "to an extent," but acknowledged that he took no steps to preserve the router or the information contained thereon in this case. He conceded that the information on the SPD's router could have been useful to either the prosecution or the defense.

         Over the state's objection, Sgt. Montgomery testified that he was a witness in a federal case where a mistrial was declared, and he explained, "I stated under oath that I had emails with that same name and I was able to produce them that showed that they did not belong to that name." He also testified that he inadvertently allowed a video to be recorded over in another investigation.

         Det. Mack testified that her internet persona, 14-year-old Brittani, was friends on Facebook with Sgt. Montgomery's persona, Kendra. On or about March 6, 2012, Det. Mack, as Brittani, sent a friend request on Facebook to Richards, and Richards accepted. Brittani and Richards communicated on March 11, 2012, through Facebook and Yahoo Messenger, with Richards using the email address rickrichards71101@yahoo.com. She testified that even after Brittani informed Richards that she was 14 years old, he engaged her in a conversation of a sexual nature and discussed the possibility of meeting in person. Richards told Brittani that he liked to "eat pussy," "eat ass," "drink pee" and "be toilet paper or a toilet." He sent Brittani the same photograph of his penis that he sent to Kendra.

         Det. Mack also testified that she obtained a subpoena for the account information and the physical location of the IP address associated with the Rick Richards Facebook account and the "rickrichards71101@yahoo.com" email account. Comcast identified the internet subscriber as William Allen and the physical address as a residence in Shreveport, Louisiana, that matched Defendant's home address. Based on that information, she obtained an arrest warrant for Defendant in Bossier Parish.

         Maggie Walker testified that in 2012 she worked as the Assistant City Clerk and was responsible for the City of Springhill's utility bills. She stated that the City of Springhill received free internet service from CMA Communications ("CMA") until it began charging for service sometime in the summer of 2012. She identified a computer log that showed that the City of Springhill made payments to CMA in July 2012, when CMA began charging. It also showed an invoice on November 20, 2012, and a payment made on December 4, 2012. Ms. Walker stated that she believed the invoice and payment were to terminate the CMA contract and finish any billing with the company. She identified a bill from CenturyLink for internet service for the City of Springhill, dated September 13, 2012, for prorated internet service from August 22, 2012, to September 12, 2012.

         On cross-examination, Ms. Walker testified that the City of Springhill began using CenturyLink's internet service as soon as it was installed in mid-August 2012, but she could not recall the exact date when CMA's service was disconnected. She confirmed that records from CMA showed a disconnect date of November 16, 2012. She noted that when the City of Springhill changed internet providers, this included the SPD changing providers, but she did not know when CMA removed its equipment from the SPD. She testified that she was never contacted by Sgt. Montgomery regarding the internet equipment or service used by the SPD.

         Randall Thomas of the Bossier City Marshall's Office was accepted as an expert in smart phone data extraction and testified that he ran multiple programs to extract data from Defendant's iPhone. He testified that 14 email accounts had been accessed by Defendant's iPhone, including the "rick.p.richards@gmail.com" email account. The iPhone also contained a contact stored as "Rick Richards," with a telephone number that matched the phone number that Richards provided to Kendra. He noted that in 2012, cell phones did not have the storage capacity to store email messages, so none were extracted from the iPhone. He extracted 16, 890 text messages from the iPhone. On April 9, 2011, Defendant sent a text message to a contact saved as his wife, indicating that he intended to "make a Facebook posting for people to poop on me." Dep. Thomas testified that he did not find any text messages to Kendra or Brittani, or any conversation discussing sexual acts with minors, but he noted that there are multiples ways to send a text message, including with a laptop computer.

         Following the close of the state's case in chief, the defense moved for a judgment of acquittal, arguing that the state presented insufficient evidence to prove that Defendant had a reasonable belief that he was communicating with an individual under the age of 17. The state asserted that Defendant's conversations with Kendra over the course of several months regarding her age, her mother, her inability to drive and her school were sufficient for a reasonable finder of fact to hold that Defendant had a reasonable belief that she was under the age of 17. The trial court denied Defendant's motion.

         Following the testimony of three witnesses speaking of Defendant's character, the defense re-called Sgt. Montgomery as a witness. Sgt. Montgomery identified a May 14, 2014 letter from the defense requesting information on the internet service and computer networking equipment used by the SPD between October 18, 2011, and December 21, 2012. In response to that request, Sgt. Montgomery reported that the SPD had used a router of "unknown make and model" provided by CMA; that the SPD had no records regarding hardware that had been "procured, replaced, abandoned, destroyed or otherwise brought into or removed from the possession of control" of it; that the SPD did not maintain records of IP addresses assigned to or used by it; and that the SPD had no written policies or procedures for the preservation of evidence contained on equipment that was to be "replaced, abandoned, destroyed, or otherwise removed from" its control. He testified that nothing related to the computer equipment used in connection with this investigation was saved. He conceded that, in the search of Defendant's devices, law enforcement did not discover any evidence of child pornography, other conversations with minors or any evidence that Defendant had solicited sexual acts from minors.

         Defendant testified that prior to March 2012, it was very common for him to have conversations of a sexual nature with anonymous persons online. He stated that he never used his real name and that there was no expectation of honesty in the conversations. He claimed that he never received sexual gratification from those conversations, but that he was only interested in the way the other person talked about things. He denied ever meeting someone for sex as a result of an online conversation. He noted that the text message he sent to his then-wife about creating "a Facebook posting for people to poop on me" was a joke and that he often made similar "extreme" and "bizarre" jokes online and in person.

         Defendant further testified that he used the Rick Richards persona online and created a Craigslist advertisement looking for a female of any age, race or size who would be interested in urination or defecation. He stated that at the time, people accessing the personals area on the Craigslist website had to confirm that they were over the age of 18. He ...


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