State Of Louisiana v. Rickey J. Lafont, Jr. ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 KA 0086
STATE OF LOUISIANA
VERSUS
00
RICKEY J. LAFONT, JR.
Judgment Rendered:
SEP 15 2023
Appealed from the
17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Docket No. 599618
The Honorable Marla M. Abel, Judge Presiding
Kristine M. Russell Counsel for Appellee,
District Attorney State of Louisiana
Jason L. Chatagnier
Assistant District Attorney
Thibodaux, Louisiana
Barry S. Ranshi Counsel for Defendant/Appellant,
John J. Mason Rickey J. Lafont, Jr.
Kenner, Louisiana
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
MILLER, J.
The defendant, Rickey J. Lafont, Jr., was charged by amended bill of
information with indecent behavior with a juvenile (count I), a violation of La. R. S.
14: 81( A)( 1)( H)(2); and sexual battery ( count II), a violation of La. R. S.
14: 43. 1( A)(2) & ( C)( 2).' He pled not guilty on both counts. Following a jury trial,
he was found guilty on both counts by unanimous verdicts. On count I, the
defendant was sentenced to twenty- five years at hard labor, two years without
benefit of probation, parole, or suspension of sentence. On count II, he was
sentenced to a concurrent term of forty years at hard labor, twenty- five years without
benefit of parole, probation, or suspension of sentence. The defendant now appeals
designating four assignments of error. For the following reasons, we affirm the
convictions and sentences.
FACTS
In July of 2020, S. M.,2 the nine-year-old victim, confided in her mother, A.M.,
that the defendant touched her between her legs. The defendant was A.M.' s live-in
boyfriend at that time. S. M. subsequently gave a statement to the Child Advocacy
Center regarding those allegations. In that statement, S. M. recounted that the
defendant began touching her when she was seven or eight years old. According to
S. M., the first incident occurred when S. M. and the defendant were lying on the
3
couch, covered by a blanket and watching anime. S. M. stated that the defendant
Count lZ of the bill of information ( erroneously identified as " Count I") set forth the
essential facts corresponding with La. R.S. 14: 43. 1( C)( 2), but cited La. R. S. 14: 43. 1( 0)( 3). This
error, however, is harmless because the defendant neither alleges nor proves he was misled to his
prejudice. See La. C. Cr.P. arts. 464 & 921.
2W reference the victim and her mother herein only by their initials. See La. R.S.
46: 1844( W).
3" Anime" is defined by Merriam -Webster Dictionary as " a style of animation originating
in Japan that is characterized by stark colorful graphics depicting vibrant characters in action -
filled plots often with fantastic or futuristic themes. Merriam -Webster Online Dictionary,
https:// merriain- wenster.cortttdictionat- rfanirne ( last visited August 22, 2023).
2
began to rub her private parts,4 and continued to do so after she told him to stop. She
further stated that the rubbing continued to occur, both over her clothes and under her
shorts and underwear. S.M. recalled that these incidents usually took place when
everyone else in the house was sleeping, and often while the defendant watched
anime or movies. The incidents allegedly occurred at the defendant' s residence in
Galliano. S. M., who was age eleven at the time of trial, testified at trial. Her trial
testimony was consistent with her statement given to the Child Advocacy Center.
The defendant testified at trial. He denied having sexual tendencies toward
children, denied being sexually aroused by children, denied touching S. M.' s vagina,
and denied rubbing her vagina under her clothes.
MOTION IN LIMINE
In his first assignment of error, the defendant contends the trial court erred in
denying his motion in limine seeking to exclude evidence of a 2019 conviction for
indecent behavior with a juvenile and in failing to enforce its limiting instruction to
the jury. He asks this court to analogize La. C.E. art. 412.2 to La. C.E. art. 404(B)( 1)
and reverse the conviction under State v. Taylor, 2016- 1124, 2016- 1183 ( La.
1211116), 217 So. 3d 283, arguing that the minds of the jury were " unduly
prejudiced"
because the State presented graphic testimony concerning his 2019
conviction and turned the trial into a " mini -trial" of the prior offense. The defendant
argues that the State could have proven the prior conviction without witness
testimony, and the State presented more evidence than was necessary for the limited
purpose allowed by the trial court.
Prior to trial, the State filed a notice of intent to use evidence of other crimes,
in particular, a June 12, 2019 conviction of the defendant for indecent behavior with
another juvenile, M.N. The State contended it wished to introduce evidence of the
prior conviction in the instant case, pursuant to La. C. E. art. 412.2, as evidence of the
4I her statement given to the Child Advocacy Center, S. M. referred to her vagina as her
coonie" and pointed to her private parts, which the examiner understood to mean her genitalia.
3
defendant' s character for sexually assaultive behavior and/ or as having a lustful
disposition towards children.
The defendant filed a motion in limine arguing the 2019 convictions had
minimal probative value and would only serve to convince the jury he was a
dangerous person where the prior conviction involved a fourteen -year-old girl, rather
than a nine-year- old girl, and alleged a different type of assault. The State argued the
instant offense and the prior offense both involved indecent behavior with a minor
under the age of seventeen years old, and the earlier conviction demonstrated the
defendant' s lustful disposition towards children because it showed he had committed
more than one lewd and lascivious act with minors.
The trial court found La. C. E. art. 412. 2 applied because the 2019 conviction
for sexually assaultive behavior involved a minor child under the age of seventeen
years old at the time of the offense. The court noted it was unable to locate any
jurisprudence holding a different standard applied based on the age difference
between the victim in the earlier case and the victim in the instant case. The court
further determined that the probative value of the evidence of the 2019 conviction
was high and was not outweighed by the danger of unfair prejudice. Additionally,
the court noted the State' s notice complied with Article 412.2( B) by specifically
articulating the previous acts' and how they were similar to the allegations in the
instant case. Accordingly, the court held that evidence related to the 2019 conviction
would be admissible in the instant case, but it would give a limiting instruction
regarding any evidence introduced in connection with the conviction. The defendant
objected to the ruling of the court.
The motion also sought to prevent the presentation of evidence concerning an unrelated
incident in which the defendant had allegedly choked his son. The State, however, did not offer
evidence of that incident at trial.
6The notice set forth details of the 2019 offense consistent with the testimony of M.N.,
the victim in that case.
Louisiana Code of Evidence article 412. 2, entitled, " Evidence of similar
crimes, wrongs, or acts in sex offense cases," provides in pertinent part:
A. When an accused is charged with a crime involving sexually
assaultive behavior, or with accts that constitute a sex offense involving a
victim who was under the age of seventeen at the time of the offense,
evidence of the accused' s commission of another crime, wrong, or act
involving sexually assaultive behavior or acts which indicate a lustful
disposition toward children may be admissible and may be considered
for its bearing on any matter to which it is relevant subject to the
balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the
provisions of this Article, the prosecution shall, upon request of the
accused, provide reasonable notice in advance of trial of the nature of
any such evidence it intends to introduce at trial for such purposes.
Louisiana Code of Evidence article 412. 2 was enacted to loosen restrictions on
other crimes" evidence, and to allow evidence of " lustful disposition" in cases
involving sexual offenses. State v. Wrigh , 2011- 0141 ( La. 12/ 6/ 11), 79 So. 3d 309,
317. Following enactment of the law, the legislature amended the language of the
article from allowing admission of "evidence of the accused' s commission of another
sexual offense" to allowing " evidence of the accused' s commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which indicate a lustful
disposition toward children." See La. Acts 2004, No. 465, § 1. This revised
language significantly broadened the scope of evidence admissible under La. C.E.
art. 412.2. State v. La on, 2014- 1910 ( La. 3/ 17/ 15), 168 So. 3d 358, 360. However,
the balancing test set forth in La. C.E. art. 403, which insures the fundamental
fairness of proceedings, specifically applies to La. C. E. art. 412.2. La on, 168 So.
3d at 362.
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or waste of time. La.
C. E. art. 403. Thus, in its vast discretion, the trial court may exclude relevant
RJ
evidence after finding that its prejudicial effect substantially outweighs its
probative value.
Ultimately, questions of relevancy and admissibility of evidence
are discretionary calls within the trial court' s " great gatekeeping discretion."
Wri t, 79 So. 3d at 317. Such determinations regarding relevancy and
admissibility should not be overturned absent a clear abuse of discretion. State v.
Tate, 2020- 0523 ( La. App. I" Cir. 4/ 16/ 21), 2021 WL 1475325 * 6 ( unpublished),
writ denied, 2021- 00690 ( La. 9/ 27121), 324 So. 3d 92.
At trial, M.N., the victim from the 2019 case, testified that her date of birth is
January 24, 2003. M.N. stated that on July 21, 2017, she was at the defendant' s
house, along with several members of her family. According to M.N., after
everyone, except for MN., the defendant, and the defendant' s three young children,
left to go to the grocery store, the defendant insisted that she lay on her stomach and
hovered over" her with his knee between her legs and began massaging her back,
shoulders, and thighs, M.N. testified that the defendant reached under her shirt to
massage her back and shoulders and massaged her thighs over her pants. She further
testified that later, as she stood in the kitchen cooking supper, the defendant tickled
M.N. against her wishes, pulled her underwear up, and then reached into her pants
and pulled her underwear out from between the cheeks of her buttocks. M.N. also
testified about how she felt during and after the assault and how it affected her
relationship with her family.
Following M.N.' s testimony, the court issued the following instruction to the
jury:
E] vidence that the defendant was involved in a commission of
an offense other than the offense for which he is on trial is to be
considered only for a limited purpose. The sole purpose for which such
evidence may be considered is whether it tends to show a lustful
disposition towards children. Remember, the accused is on trial only
for the offense charged.You may not find him guilty of [t]his offense
merely because he may have committed another offense.
T
To the extent that the defendant relies on Tai for in support of his argument
that M.N.' s testimony should be excluded, we note that in Tgylo , the Louisiana
Supreme Court re- examined the requirements and procedures for introduction of
other crimes, wrongs, or acts" evidence under La. C. E. art. 404( B). T_
aylor, 217 So.
3d at 291- 292. The court held that, when seeking to introduce evidence pursuant to
La. C.E. art. 404( B), the State need only make a showing of sufficient evidence to
support a finding that the defendant committed the other crime, wrong, or act.
Taylor, 217 So. 3d at 291. Further, the court maintained the longstanding
requirement of a pre-trial hearing to determine the admissibility of other crimes
evidence,
but cautioned the hearing was not a " mini -trial" of the prior offenses.
Taylor, 217 So. 3d at 292. Lastly, the court noted, even when other crimes evidence
is offered for a purpose allowed under Article 404( B)( 1), the evidence must have
substantial relevance independent from showing the defendant' s general criminal
character and thus is not admissible unless it tends to prove a material fact at issue or
to rebut a defendant' s defense. Taylor, 217 So. 3d at 292.
On review, we find the trial court properly held that evidence related to the
2019 conviction was admissible at the instant trial under La. C.E. art. 412.2. The
defendant was on trial for a charge involving sexually assaultive behavior, or with
acts that constitute a sex offense, involving a victim who was under the age of
seventeen at the time of the offense, and the evidence at issue concerned his
commission of another crime, wrong, or act involving sexually assaultive behavior or
acts which indicated a lustful disposition toward children. See La. C. E. art. 412.2( A).
Further, as noted by the trial court, the probative value of the evidence related to the
2019 conviction was not outweighed ( much less substantially outweighed) by the
danger of unfair prejudice, confusion of the issues, misleading the jury, or by
considerations of undue delay or waste of time. See La. C.E. art. 403; Wri t, 79 So.
7
3d at 316- 319; La an, 168 So. 3d at 360- 362; State v. Dawson, 2019- 1612 ( La. App.
1St Cir. 1. 1117120), 316 So. 3d 77, 88- 89.
As previously mentioned, the defendant invites us to analogize La. C. E. art.
412.2 to La. C. E. art. 404( B)( 1) and incorporate the requirements and procedures for
introduction of "other crimes, wrongs, or acts" evidence under La. C.E. art. 404( B)
into La. C.E. art. 412.2. In particular, the defendant wants the court to restrict the
State' s evidence and thus prevent the " mini -trial" discussed in Taylor. In TUlor, the
Supreme Court limited its discussion to only La. C. E. art. 404( B) other crimes
evidence. There is no mention in Taylor of La. C.E. art. 412.2 or La. C. E. art. 412.4,
and to expand the narrow scope of the case to Article 412.2 would be inappropriate.
See State v. Tate, 2021 WL 1478325 at * 5. Further, while the court in Taylor
cautioned against turning " this hearing" into a mini trial, it was referring to the " pre-
trial hearing to determine the admissibility of other crimes evidence," not the trial on
the merits. Tabor, 217 So. 3d at 292.
Additionally, we find that the State did not violate La. C.E. art. 412.2 or any
other law in the manner in which it presented M.N.' s testimony at trial. The district
attorney has constitutional authority over criminal prosecutions. See La. Const. art.
V, § 26( B); La. C. Cr.P. art. 61. The district attorney has entire charge and control of
every criminal prosecution instituted or pending in his district and determines whom,
when, and how he shall prosecute. La. C. Cr.P. art. 61; State v. Papizan, 2017- 0028
La. App. 1St Cir. 1112117), 256 So. 3d 1091, 1095, writ denied, 2017-2028 ( La.
10/ 29/ 18), 255 So. 3d 572. The district attorney' s broad discretion in prosecuting
matters encompasses his selection and presentation of evidence as permitted by the
Code of Evidence. Cf. Statey. Eason, 2019- 0614 ( La. App. I' Cir. 12127/ 19), 293
So. 3d 61, 71. Here, the defendant specifically complains that the district attorney
put on evidence about " how [ M.N.] felt after the act( s) were committed, how it
affected her relationships with her family, and how she felt during the subsequent
8
trial," which evidence goes beyond the limited purpose approved by the court, i.e.,
proving lustful disposition. Yet, at trial, no objection was made by the defendant at
trial to the brief testimony given by M.N. Further, we have carefully reviewed the
manner in which the State questioned M.N. and find the questions to be focused on
the prior offense and not its aftermath. We further note that as Article 412.2 allows
for evidence of wrongs or acts, even when outside the scope of a previous conviction,
the article does not require a presentation restricted to the sterile introduction of a
minute entry or to otherwise limit witness testimony.
We find the State did not violate the limiting instruction imposed by the trial
court.
To the contrary, in closing argument, the State emphasized the limited
admissibility of M.N.' s testimony, to -wit:
You heard testimony from [ M.N.]. And ... you' ve been
instructed that there' s a limited purpose, [ for which] that testimony, that
evidence has been presented to you. And I agree. It' s not that [ the
defendant] committed this offense because he committed the offense of
indecent behavior back in 2017. It' s being submitted to you that it' s
evidence of his character that [ the defendant] has a lustful disposition
towards children.
This assignment of error lacks merit.
INADMISSIBLE PREJUDICIAL EVIDENCE
In his second assignment of error, the defendant contends that the trial court
erred in failing to exclude inadmissible prejudicial evidence, in particular, testimony
concerning the defendant' s proclivity for watching anime, in contravention of State
v. Barnes, 28, 835 ( La. App. 2" d Cir. 12111196), 685 So. 2d 1148. The defendant
contends that the State attempted to conflate cartoons shown on Cartoon Network
with pornography to " create the image of a bad person in the eyes of the jury."
In Barnes, the defendant argued on appeal that reference to his gang
membership elicited by the State was inadmissible character evidence that did not fall
within any of the exceptions in La. C.E. art. 404(B)( 1). Barnes, 685 So. 2d at 1155.
The appellate court found the defendant failed to object at trial that certain
9
questioning elicited evidence of other crimes, and thus, the issue was not preserved
for review. Barnes, 685 So. 2d at 1155. Thereafter, the court nonetheless found that
the evidence should have been excluded, noting that while a defendant' s gang
membership may be probative under certain conditions, whether the defendant was in
a gang was not relevant to the elements of his armed robbery charge. Even so, the
court found that the error was harmless. Barnes, 685 So. 2d at 1155.
Subsequent jurisprudence has distinguished Barnes when evidence of gang
affiliation, and presumably other Article 404( B) evidence, was relevant to an
essential element of the crime. See State v. Gray, 2014- 1213 ( La. App. 4" Cir.
11/ 25/ 15), 179 So. 3d 936, 942, writ denied, 2016- 0006 ( La. 1/ 13/ 17), 215 So. 3d
241 (" This case is distinguishable from Barnes in that the State introduced evidence
of [the defendant' s] gang affiliation to show motive for the murder.").
In the instant case, the defendant failed to object to testimony from S. M. that
the defendant touched her vagina " almost every night" while watching anime with
her.' He also failed to object to testimony from S. M.' s mother, A.M., that he
watched provocative anime every day. A.M. also testified that during her sexual
relationship with the defendant, she learned he was interested in Hentai, which she
indicated was Japanese anime in which the characters engaged in sexual relations.
Amanda Aten, who was accepted by the court as an expert in the field of sex
offender evaluation and treatment, testified at trial that the defendant " did not present
himself with pedophiliac tendencies" during her evaluation. Defense counsel asked
Aten if her opinion would change had there been testimony that the defendant and his
girlfriend viewed Japanese Hentai pornography. Aten answered that she believed the
defendant told her that he viewed pornography with his girlfriend at the time of the
evaluation.
7S.M. identified pictures of anime programs showing women and young girls in tight or
revealing clothing as programs she watched with the defendant when he touched her vagina.
10
Aten stated the first picture of the anime program shown to S. M. at trial was
not " child appropriate," but was not pornographic. She agreed the second picture of
the anime program shown to S. M. at trial was " sexualized." The State asked Aten if
it would be problematic if the defendant viewed Hentai. Aten replied that while
certain pornography is legal, a condition of sex offender treatment is that the person
in treatment not view pornography.
The only objection raised by the defense during the State' s questioning of
Aten was that it was unfair to ask her questions about the content of the anime shows
when she had only been provided photographs from the shows. The court sustained
the objections and cautioned the State to ask her about the photograph being a
representation of the actual cartoon.
It is well settled that defense counsel must state the basis for an objection when
it is made, pointing out the specific error to the trial court. The grounds for objection
must be sufficiently brought to the court' s attention to allow it the opportunity to
make the proper ruling and prevent or cure any error. See La. C.E. art. 103( A)( 1)
Error may not be predicated upon a ruling which admits ... evidence unless a
substantial right of the party is affected, and ... [ w] hen the ruling is one admitting
evidence, a timely objection or motion to admonish the jury to limit or disregard
appears of record, stating the speck ground of objection [.]") ( emphasis added); La.
C. Cr.P. art. 841( A) ("An irregularity or error cannot be availed of after verdict unless
it was objected to at the time of occurrence.... It is sufficient that a party, at the time
the ruling ... is made ... makes known to the court ... his objections to the action of
the court, and the grounds therefor.") ( emphasis added). State v. Williams, 2010-
1392 ( La. App. 1' Cir. 2/ 11111), 2011 WL 2178767, * 5 ( unpublished), writ denied,
2011- 1028 ( La. 3/ 9112), 84 So. 3d 542.
In the instant case, the La. C.E. art. 412. 2 notice of intent to use evidence of
other crimes listed not only the prior conduct of the defendant demonstrating his
11
lustful disposition towards children, but also the circumstances of the instant offense,
i.e., the inappropriate touching of S. M. allegedly occurred while the defendant
watched anime with her. The defendant' s motion in limine, however, did not object
nor move to exclude the references to anime. Additionally, the defendant failed to
object to the references to anime and Hentai at trial. Accordingly, this assignment of
error was not preserved for review.
FAILURE TO SUBJECT THE TESTIMONY OF THE VICTIM TO
MEANINGFUL ADVERSARIAL TESTING
Next, the defendant contends that his trial counsel rendered ineffective
assistance by questioning the State' s expert witness, rather than the victim, S. M.,
concerning S. M.'s account of when the incidents occurred.'
Defense counsel questioned Shannon Gros, who conducted the interview with
S. M. at the Children' s Advocacy Center, concerning S.M.' s alleged statement that
the incidents occurred when she was between seven and nine years old. Gros replied
that S. M. stated the incidents started when she was seven or eight years old. Defense
counsel then asked, " But you didn' t attempt to define the dates?" Gros replied, " I
interview 17- year- olds and I don' t ask for specific dates." Thereafter, S. M. testified
at trial. After the State completed its direct examination of S. M., defense counsel
stated he had no questions for her.
Generally, a claim of ineffective assistance of counsel is relegated to post-
conviction proceedings, where a full evidentiary hearing may be conducted, unless
the record permits definitive resolution on appeal. State v. Miller, 99- 0192 ( La.
916100), 776 So. 2d 396, 411, cert. denied, 531 U.S. 1194, 121 S. Ct. 1196, 149
BThe defendant states in brief that the defense counsel also failed to ask any questions of
the " prior victim," M.N. at trial. However, the defendant failed to argue or brief how this
amounted to error. Assignments of error that are neither briefed nor argued are considered
abandoned. Uniform Rules —Courts of Appeal, Rule 2- 12.4(B)( 4); see State v. Laue, 2020-0225
La. App. 1St Cir. 12130120), 326 So. 3d 267, 282, writ denied, 2021- 01329 ( La. 11117121), 327
So. 3d 993 (" Restatement of an assignment of error in brief is nothing more than a listing of the
assignment and certainly does not constitute briefing of the assignment.").
12
L.Ed.2d 111 ( 2001); State v. Allen, 94- 1941 ( La. App. 1St Cir. 1119195), 664 So. 2d
1264, 1271, writ denied, 95- 2946 ( La. 3/ 15/ 96), 669 So. 2d 433.
Under our adversary system, once a defendant has the assistance of counsel,
the vast array of trial decisions, strategic, and tactical, which must be made before
and during trial, rest with an accused and his attorney. State v. Folse, 623 So. 2d 59,
71 ( La. App. 1' Cir. 1993). The fact that a particular strategy is unsuccessful does
not establish ineffective assistance of counsel. State v. Moody, 2000- 0886 ( La. App.
1 St Cir. 12/ 22/ 00), 779 So. 2d 4, 8- 10, writ denied, 2001- 0213 ( La. 1217101), 803 So.
2d 40; see State v. Johnson, 2006- 1235 ( La. App. 1St Cir. 12128/ 06), 951 So. 2d 294,
302 ("[ A] defense attorney' s examination of witnesses falls within the ambit of trial
strategy for purposes of evaluating an ineffectiveness claim."). In the instant case,
however, the defendant' s claim that trial counsel failed to adequately cross- examine
S. M. requires an evidentiary hearing to determine whether the alleged deficient
performance concerned a matter of strategy. Thus, it cannot possibly be reviewed on
appeal. See State v. Allen, 664 So. 2d at 1271, citing State v. Martin, 607 So. 2d
775, 788 ( La. App. 1' Cir. 1992) ( the investigation of strategy decisions requires
an evidentiary hearing and, therefore, could not possibly be reviewed on appeal).
Accordingly, the defendant' s claim of ineffectiveness, as it relates to the
strategic choice made by counsel between alternative defenses available, is more
properly raised by an application for post -conviction relief where a full evidentiary
hearing may be conducted. See Allen, 664 So. 2d at 1271.
VIOLATION OF McCOY
Finally, the defendant contends trial counsel " admitted" the defendant' s guilt
in his closing argument in violation of McCoy v. Louisiana, U.S. , 138 S. Ct.
1500, 1505, 200 L.Ed.2d 821 ( 2018) ("[ A] defendant has the right to insist that
counsel refrain from admitting guilt, even when counsel' s experienced -based view is
13
that confessing guilt offers the defendant the best chance to avoid the death
91 ).
penalty -
In McCoy, the United States Supreme Court held that trial counsel' s
concession of guilt, against the defendant' s clearly and persistently stated wishes,
violates the defendant' s Sixth Amendment autonomy rights and amounts to structural
error entitling the defendant to a new trial without the need to demonstrate prejudice.
The Supreme Court reasoned that although some aspects of the defense, such as trial
management, including strategy, objections, and evidentiary matters, are within
counsel' s purview, the Sixth Amendment provides a defendant with "[ a] utonomy to
decide that the objective of the defense is to assert innocence ... at the guilt phase of a
capital trial. These are not strategic choices about how to best achieve a client' s
objectives; they are choices about what the client' s objectives in fact are." McCoy,
138 S. Ct. at 1508 ( emphasis in original); see State v. Brown, 2016- 0998 ( La.
1128122), 347 So. 3d 745, 809, cert, denied, U.S. , 143 S. Ct. 886, 215
L.Ed.2d 404.
The defendant argues defense counsel violated McCoy during closing
argument by stating, " Do you want to take [ the defendant] out of the workforce and
put him in jail for virtually the rest of his life over this? Are the victims so harmed
that we' re gonna make this the equivalent of a murder?"
The challenged statements were part of the foIIowing closing argument:
The Judge is going to instruct you on the law and I won' t go
through all of it. But it' s not just an either or choice. You have ... the
power to do what you think is right, including find him guilty of an
attempt or doing what I think is actually the right thing in this case is
to find him not guilty. He' s already on probation. He' s already served
two years in jail. Do you want to take him out of the workforce and put
him in jail for virtually the rest of his life over this? Are the victims so
harmed that we' re gonna make this the equivalent of a murder? I think
not.
I think the right thing to do here is to find him not guilty and
that' s what I ask you to do at the end of this case. Thank you.
Emphasis added.]
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We have thoroughly reviewed the transcript contained in the record herein.
We find the challenged statements, viewed in context, were neither an admission nor
a concession of guilt, and thus, did not violate McCoy. They were made between
counsel' s statements, " what I think is actually the right thing in this case is to find
him not guilty[,]" and " I think the right thing to do here is to find him not guilty and
that' s what I ask you to do at the end of this case."
We find no merit to this assignment of error.
CONVICTIONS AND SENTENCES AFFIRMED.
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