State v. Allen

277 So.3d 460

STATE of Louisiana, Appellee

v.William Timothy ALLEN, IV, Appellant

52,708-KA

52,709-KA

52,710-KA (Consolidated cases)

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 26, 2019

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

STROUD, CARMOUCHE & BUCKLE, P.L.L.C., By: A.M. Stroud, III, Nichole M. Buckle, Shreveport, J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, ANDREW C. JACOBS, CHARLES A. SMITH, Assistant District Attorneys, Counsel for Appellee

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 NW 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...