State Of Louisiana v. Jinel Sexton

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0682
STATE OF LOUISIANA
VERSUS
JINEL SEXTON
DATE OF JUDGMENT.- ' APR 1 6 2021
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 587039, DIVISION G, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE SCOTT C. GARDNER, JUDGE
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana
Julie Christine Tizzard Counsel for Defendant -Appellant
New Orleans, Louisiana Jinel Sexton
BEFORE: WHIPPLE, C. J., WELCH, AND CHUTZ, JJ.
Disposition: CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE
AFFHWED.
CHUTZ, I
The defendant, Jinel Sexton, was charged by bill of information with sexual
battery ( on a victim under the age of thirteen years), a violation of La. R. S.
14: 43. 1( C)( 2). He pled not guilty. After a trial by jury, he was found guilty as
charged.
The trial court sentenced the defendant to fifty years imprisonment at
hard labor, with twenty- five years to be served without the benefit of probation,
parole, or suspension of sentence. The defendant admitted to the allegations in a
habitual offender bill of information filed by the State, and the trial court
adjudicated the defendant a second felony habitual offender. The trial court
vacated the original sentence and resentenced the defendant to fifty years
imprisonment at hard labor without the benefit of probation or suspension of
sentence, with twenty-five years to be served without the benefit of parole. The
defendant now appeals, assigning as error the admission of recorded jail calls at
trial. For the following reasons, we affirm the conviction, habitual offender
adjudication, and sentence.
STATEMENT OF FACTS
On January 15, 2017, at 6: 55 a.m., J. B. ( the victim), who was twelve years
old at the time, called 911 and reported being " raped" the night before.' The
incident occurred at the Abita Springs residence of the defendant, the biological
father of the victim' s older sister. The victim told the dispatcher that the defendant
had left to go to work prior to the time of the call and that she was in the home
alone, as the defendant' s sons who lived there were at their grandmother' s house at
the time. She stated that she had already contacted her parents, who lived in
Ponchatoula, and that they were on their way to the defendant' s residence, but that
she wanted someone closer to come to the residence. The victim also stated that
the defendant had given her some " medicine" that was supposed to treat acne,
Because J.B. was a minor, we use initials to refer to her. See La. R.S. 46: 1844( W).
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adding that he had given her " two of thein and a green tiny one." She further
stated that she did not remember falling asleep, but noted that when she woke up,
the defendant] was like touching all over me and stuff." The victim made
consistent claims to Detective Carlee Messina of the St. Tammany Parish Sheriff' s
Office, who reported to the St. Tammany Parish Hospital, where the victim was
transported by the 911 responders.
Later that morning, the defendant was transported by deputies to Detective
Messina' s office. Detective Messina informed the defendant of his Miranda3
rights and a waiver of rights form was executed. After the interview, Detective
Messina obtained a warrant for the defendant' s arrest, a search warrant for his
residence, and later obtained a search warrant for the defendant' s DNA. In
executing the search warrant for the defendant' s residence, Detective Messina
recovered and/ or photographed several items including a green t -shirt with gray
print on it,' bedding, a Flintstones vitamin bottle, and prescription bottles. In
addition to the pretrial interview, the defendant testified at trial. The defendant
denied having given the victim any medications but stated that when he was taking
vitamins, the victim asked for one, and he gave her one. According to the
defendant, when he was awakened by his alarm clock the next morning, the victim
was on top of him, and it " freaked [ him] out." He explained that his first reaction
was to get her off of him and then he had a conversation with her. The defendant
said that he told the victim, " this is not right" and that "[ she] shouldn' t be doing
this." He testified that an incident of that nature had never occurred before that
morning.
2
Regarding the " medicine" the defendant claimed would treat acne, the victim noted that the
defendant gave her " two" but would normally give her " three of them."
3 Miranda v Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L.Ed.2d 694 ( 1966).
4 At trial, Kathy Hebert, the defendant' s girlfriend, testified that the green t -shirt in evidence
belonged to her..
3
Detective Messina scheduled a recorded interview of the victim for January
24, 2017, at the Children' s Advocacy Center, in which the victim again made
consistent claims against the defendant. The victim stated that she was taken to the
hospital because "[ her sister' s] dad was being nasty." She specifically added that
chose to nighttime, the defendant ( Smiley) gave her a green vitamin and two little
white " powdery pills" that he told her would get rid of acne, and she fell asleep.
When she woke up, she was in the defendant' s room, in his bed, wearing a shirt
and no underwear, and the defendant was " touching all over [ her] and stuff."
When asked to specify where the defendant was touching her, the victim pointed to
the vaginal area of a diagram, stated that she called it " a private part," and
described how the defendant used his " boy part" to touch her private part. She
confirmed that the term " boy part" was a reference to the defendant' s penis.
According to the victim, " it was just rubbing down there," on top of her private
part, and she specifically denied that it had been inside of her private part. When
asked how it felt, she stated that it felt weird. When asked about the rest of the
defendant' s body, she explained it was close to her, that she was on her side and
the defendant was behind her. The victim further stated that she felt uncomfortable
and dizzy.
After the defendant got dressed for work and left, the victim went to her
sister' s room and texted a friend from school who told her to call 911. The victim
said that she first called her aunt, and then called 911 and told them she was raped.
When asked what " raped" meant, the victim stated that rape was " what Mr. Smiley
did" to her. She stated that she was shocked and that she did not understand why
the defendant would do this to her.
The victim was subsequently interviewed on February 14, 2017, by Dr.
Jamie Jackson of the Audrey Hepburn Care Center of the Children' s Hospital. At
that time the victim again made consistent detailed claims against the defendant,
il
specifically stating that the defendant had given her pills the night before the
incident, when she woke up, she was only wearing a shirt,' the defendant' s " boy
parts" were " rubbing up against" her " girl parts," and that it lasted for " maybe
about three minutes" before the defendant got up to go to work. However, at trial,
the victim, who was then fifteen years old, identified the defendant in court as her
sister' s dad, but would not respond to other questions, such as whether she had
been at the defendant' s house or whether she remembered the last time she saw the
defendant. When asked if there was anything she wanted to say, she stated, " Uhm
the truth is that it wasn' t him in that -- it was all my fault. And the only reason I
ever called the police in the first place is because -- that I was scared I would get in
trouble, and I didn' t know that all of this would have happened, and I' m sorry, I
guess." When asked why she thought it was her fault, she stated, " It' s my fault
because I said it was, and that' s the truth, and that' s all I' m going to say, so stop
asking me questions." When asked if anyone told her what to say at trial, she
stated, " No, and that' s the truth. Okay, that' s the truth. Is everyone listening,
because I said it' s the truth." The State tendered the victim for cross- examination,
but the defense attorney declined to question the victim, and she was released from
her subpoena.
Natasha Poe of the St. Tammany Parish Coroner' s Office, accepted as an
expert witness in DNA analysis, also testified at trial. Poe tested the contents of
the victim' s sexual assault kit, the green t -shirt, and a reference sample from the
defendant. Chemical presumptive tests for the presence of semen performed on
swabs of the victim' s genitalia, perineum, inner thigh, the crotch of the victim' s
panties, and portions of the green t -shirt were all positive. During confirmation
testing, spermatozoa were identified on the crotch of the victim' s panties and on
the back of the green t -shirt, confirming the presence of semen. The sperm
s The victim indicated that before falling asleep, she had put on pants ( or pajamas).
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fraction of one half of each anal swab produced a profile consistent with the
defendant' s DNA profile and a haplotype consistent with the defendant' s
haplotype.' The sperm fraction of one- half of each perineum swab produced a
DNA profile consistent with the defendant' s DNA profile and a haplotype
consistent with the haplotype obtained from the swab of the defendant. A DNA
profile foreign to the victim obtained from swabs from the victim' s neck, ear,
fingernails, as well as from the hip areas and crotch of the victim' s panties, was
consistent with the defendant' s DNA profile. The swabs from the victim' s
fingernails, the epithelial and sperm fractions from the crotch of the victim' s
panties, and the hip areas of the victim' s panties produced haplotypes consistent
with the haplotype obtained from the swab of the defendant.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant asserts that jail calls admitted
by the trial court were not relevant to his guilt or innocence. He further contends
that the calls were used to make him look like a bad person with a temper, discredit
the defense attorney, and reveal to the jury that he was incarcerated at the time of
the trial.
The defendant points out that in one of the calls, he is heard belittling the
defense attorney after a disagreement. The defendant maintains that the State was
allowed to use his conversations to accuse him of obstruction of justice for
allegedly tampering with a witness ( the alleged victim) although there was nothing
dispositive in the calls to demonstrate obstruction or tampering. He notes that the
State alleged that he and the other party to the calls spoke in " code" when they said
things like " everything is everything" and "
blocking." The defendant claims that
6 A haplotype is the genetic constitution of an individual with respect to one member of a pair of
allelic genes; or, in immunogenetics, that portion of the phenotype determined by a set of closely
linked genes inherited from one parent ( i.e., genes located on one of the pair of chromosomes).
Stedman' s Medical Dictionary, (2014). Poe testified, " a father will hand down the exact same Y
haplotype to his son, which will then pass it down to his son. So you can' t make a difference
from a father and son' s Y haplotype, because they' re exactly the same." Regarding some of the
samples for which she was able to make conclusions, Poe noted that the male DNA was
consistent with the defendant or someone in his paternal lineage.
2
the State offered no evidence that he had any contact with the victim or that he
directed anyone else to contact the victim. He suggests that his girlfriend, Kathy
Hebert, the other party on the jail calls, and the victim both testified that they had
no contact with one another during the pendency of the case.' Thus, the defendant
urges that the jail calls were not probative but were highly prejudicial and likely
contributed to the guilty verdict.
Relevant evidence is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. La. C.E. art. 401. All
relevant evidence is admissible except as otherwise provided by positive law.
Evidence which is not relevant is not admissible. La. C. E. art. 402. 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. 403. A trial
art.
court' s determination regarding the relevancy and
admissibility of evidence will not be overturned on appeal absent a clear abuse of
discretion. State v, Freeman, 2007- 0470 ( La. App. 1st Cir. 9/ 14/ 07), 970 So. 2d
621, 625, writ denied, 2007- 2129 ( La. 3/ 14/ 08), 977 So.2d 930.
Under La. C. E. art. 404( B)( 1), other crimes evidence " is not admissible to
prove the character of a person in order to show that he acted in conformity
therewith." The evidence may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or accident. La. C. E. art. 404( B)( 1). Evidence of other crimes
to prove knowledge, system, or intent is generally inadmissible when its relevance
7 Although the victim denied that anyone told her what to say at trial, and Hebert denied any
attempt to get the victim to change her story, notably, neither witness was directly asked if she
had any conversations or contact with the other prior to trial.
7
is outweighed by its prejudicial effect. See La. C. E. art. 403; State v. Graves, 301
So. 2d 864, 866 ( La. 1974).
Nevertheless, evidence of a defendant' s attempt to threaten, kill, intimidate,
or dissuade a witness from testifying is a well-recognized exception to the general
rule that evidence of other crimes is not admissible. See State v. Burnette, 353
So.2d 989, 991 ( La. 1977); State v. Williams, 2014- 1194 ( La. App. lst Cir.
3/ 6/ 15), 2015 WL 996231, at * 7. Additionally, evidence of an attempt to influence
witnesses or fabricate evidence is admissible despite its prejudicial effect. See
State a Graves, 301 So. 2d at 866.
The Louisiana Supreme Court has addressed the issue of the admissibility
of evidence where a defendant attempted to influence the testimony of witnesses,
indicating that such evidence has substantial probative value in a proceeding
designed to test the guilt or innocence of an accused. Burnette, 353 So. 2d at 992.
For this reason, the question of whether the evidence should be admitted has been
almost universally answered in the affirmative. Williams, 2015 WL 996231 at * 7.
Actions by a defendant that are designed to prevent witnesses from testifying
give rise to an inference that he acted from a consciousness of his own guilt.
Burnette, 353 So.2d at 992. Thus, such evidence is admissible and relevant to
show consciousness of guilt on the defendant' s part and his desire to evade
prosecution. State v Lewis, 2012- 0803 ( La. App. 4th Cir. 9/ 25/ 13), 125 So. 3d
1252, 1263, writ denied, 2013- 2537 ( La. 6/ 20/ 14), 141 So. 3d 279.
In determining the admissibility of evidence of other criminal acts of the
accused, constituting admissions by conduct intended to obstruct justice or avoid
punishment for the present crime, the trial court must decide, outside the jury' s
presence and in advance of the introduction of the evidence, whether ( 1) the
evidence fits the class of evidence constituting such admissions by conduct; ( 2)
there is substantial evidence that the defendant committed the other crimes; and ( 3)
the probative value of such other crimes evidence will outweigh its prejudicial
effect.
If the other crimes evidence fails to pass any of these three tests, it must be
excluded. Burnette, 353 So. 2d at 992.
In the instant case, the trial court held a hearing outside the presence of the
jury to determine the admissibility of several jail calls that the State sought to
introduce, occurring the month of the trial, which began on October 22, 2017. The
series of calls specifically took place prior to the trial, between October 7, 2019
and October 20, 2019, and one or more additional calls took place on the night of
the first day of the trial. The defense attorney objected to the admission of the jail
calls contending that the jury would be made aware that the defendant was
incarcerated at that time, the defendant would be subject to questions about the jail
calls and/ or obstruction of justice if he were to testify, and the calls were highly
prejudicial. The State maintained that the jail calls showed an effort to coordinate
either the lack of an appearance of the victim or to encourage the victim to tell a lie
at the trial. The State asserted that the relevance of the jail calls became apparent
when the district attorney' s office attempted to meet with the victim before the
trial. The victim' s mother brought the victim to the office an hour and a half late,
and there was a lack of cooperation at the time.
The trial court allowed the State to introduce those jail calls that had
occurred prior to the start of the trial but ruled that those calls recorded on the night
of the first day of trial, which had not yet been heard by the defense attorney, were
inadmissible based upon the timing of the disclosure. A subsequent motion for
mistrial based on the admission of the jail calls asserted by defense counsel was
denied by the trial court.
The jail calls were played during the trial testimony of Christopher Johnson,
an investigator for the district attorney' s office. Johnson testified that after failed
attempts at locating the victim' s mother, he was first able to contact her on October
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1, 2019, when he received a call back from her. He stated that the victim' s mother
was cooperative during their conversation and that a meeting was scheduled for
October 7th. He noted, however, that when the victim and her mother arrived, the
victim was " completely shut down." According to Johnson, the victim was
looking at the floor the whole time, would not look at him, and would not answer
salutations or greetings. Johnson recalled that the victim acted as if she did not
want to be there and pointed out that the victim' s mother seemed to play the role of
the " authoritarian," answering questions that were directed at the victim.
Johnson confirmed that after the October 7th meeting, there was a period of
a few days in which the district attorney' s office again could not establish contact
with the victim' s mother to follow up. They ultimately went to the victim' s
grandmother' s residence in Ponchatoula. Although the victim' s mother initially
came to the door, she quickly went back inside prior to returning outside to accept
service of a subpoena.
The victim' s mother did not keep an arrangement for future
contact and was non- responsive to subsequent messages.
On October 18th, the victim' s mother contacted Johnson and agreed to bring
the victim to the district attorney' s office that day to prepare for trial. Arriving
after the scheduled time, the victim' s mother initially agreed to allow the assistant
district attorney to prepare the victim for trial alone. The victim' s mother
subsequently sent text messages to Johnson expressing concerns about not being
present during the victim' s trial preparation. Johnson conferred with the assistant
district attorney, who indicated that it would be fine for the victim' s mother to be
present. Before Johnson could communicate the information to her, the victim' s
mother became visibly upset and, as the assistant district attorney came out of the
office with the victim, the victim' s mother grabbed the victim' s arm and left with
the victim. They never returned to the district attorney' s office.
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Some of the jail calls took place before the victim and her mother arrived at
the district attorney' s office on October 7th. A female, identified as Hebert, began
the first call by saying, " Si senor." The defendant can be then heard questioning
her as to whether or not she had spoken to " dumb ass."' Hebert responded, " Yeah.
He said ... he plans to call her after the meeting and then he' s scheduling a
meeting with them ... and then he said ... he' s gonna find out what it was all about
and what if or if anything they' re trying to get her to testify for...." The defendant
subsequently told Hebert to call his mother and tell her to call " dumb ass and see
what the deal was." Hebert responded, " So she told her she' ll be calling her as
soon as she leaves ... and she said, um, the way she talkin' she don' t care what
they do." The defendant replied, " Yeah well, she tried that s*** and they forced
her hand the last time." During subsequent jail calls, the defendant is heard asking
Hebert if his mother had called " her" yet and repeatedly telling Hebert to call his
mother and to tell his mother that he said to call " her."
At the outset of the fourth call, which presumably took place after the
October 7th meeting, Hebert informed the defendant, " She say that um ...
inaudible] went with her but didn' t say a word ... didn' t say nothin' the whole
time ... and uh they told her that they wantin' to put her on the you know and she
said no, she' s not Join' it, and uh, she said ... she ain' t havin' it and she don' t
care... Yo momma said ... she told her they go try to f*** with her and s*** and
she said she don' t give a f***." The defendant replied, " Okay" and asked Hebert
if she relayed the information to " dumb ass" yet. At the end of the call, the
defendant told Hebert to talk to his mother again and " tell her to find out you know
S While it is unclear from the jail calls, Johnson testified that he assumed the defendant was
speaking of the defense attorney in using the phrase " dumb ass." We further note that at trial
Hebert confirmed that she was the other party on the jail calls that took place days before the
trial, the defendant asked her to " make sure that everything is everything," and she and the
defendant talked about the defendant' s mother during the calls. Likewise, the defendant
admitted at trial that he communicated with his mother through Hebert during the jail calls.
However, neither provided any additional context for the jail calls.
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if they you know tried to coerce her in any way." He added, " see what they talkin'
about ... if they was talkin' about P * * * * with
* her then and find out how long
were they up there for."
During subsequent jail calls, the defendant can be heard repeatedly telling
Hebert to call his mother, complaining about the way things were being relayed,
and asking whether or not " she" was being coerced, forced, or threatened.
Specifically, at one point during a jail call, the defendant stated, " Right now that
expletive] just told y' all what she did, you need to be fmdin' out what the f*** she
did and if she really did it, we ain' t got nothin' to worry about." He later added,
Call that b**** ... see what' s gain' on ... send that [ expletive] to Kalamazoo if, if
that' s what it take." The defendant further stated, " Call my momma ... s*** ain' t
gettin' relayed the way it should, my momma ain' t got f* * * *understanding
* * as
far as what need to be [ expletive] said or not or asked ... s*** drivin' me crazy ...
do the s***, make it happen, get the information." In a later call, at the outset
Hebert abruptly stated, " Not going, not going, don' t care what happens, not going."
The defendant replied, " Oh, yeah?" Hebert told the defendant that his mother had
just relayed that message to her. The defendant later asked if anyone had
threatened " her" and Hebert replied in part, " No, told her [ sic] they needed to"
adding, " and we pretty sure it was of boy."
Considering the three -pronged analysis set forth by Burnette, we find that
the jail calls were properly admitted. The content and timing of the jail calls
seemingly indicate that the defendant was attempting to influence or have others
influence initially what would happen during the victim' s scheduled meeting with
the assistant district attorney and subsequently as to whether or not the victim
would continue to evade questioning and/or not appear at trial. The probative value
of this evidence is substantial in that it was presented to explain the victim' s
recantation at trial of her consistent pretrial claims. Any prejudicial effect that
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might have existed was substantially outweighed by this probative value. Mindful
that the defendant has not provided any other plausible explanation or context for
the content of the jail calls to the contrary, we conclude that the trial court did not
err or abuse its discretion in admitting the jail calls to show consciousness of guilt
on the defendant' s part and his desire to evade prosecution. We find no merit in
the sole assignment of error.
For these reasons, we affirm the conviction, habitual offender adjudication,
and sentence of defendant -appellant, Jinel Sexton.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND
SENTENCE AFFIRMED.
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