State v. Conklin

274 So.3d 675

STATE of Louisiana

v.Jack Calvin CONKLIN

NO. 2018 KA 0718

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: February 28, 2019

Warren L. Montgomery, District Attorney, Matthew Caplan, Butch Wilson, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana

Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant-Appellant, Jack Calvin Conklin

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

HIGGINBOTHAM, J.

Defendant, Jack Conklin, was charged by bill of indictment with aggravated rape (count one), a violation of La. R.S. 14:42,¹ sexual battery of a victim younger than thirteen (count two), a violation of La. R.S. 14:43.1(C)(2), and production of pornography involving juveniles (count three), a violation of La. R.S. 14:81.1. He pled not guilty on all three counts. Defendant filed motions to suppress his identification, arrest, statements, and evidence, which were denied. After a trial by jury, defendant was found guilty as charged. The trial court denied defendant's motion for post-verdict judgment of acquittal and motion for new trial. Defendant waived sentencing delays, and the court imposed concurrent terms of life on count one, fifty years on count two, and fifty years on count three, all at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. The trial court also denied defendant's motion for reconsideration of sentence. Defendant now appeals.

STATEMENT OF FACTS

Though defendant was convicted of three offenses stemming from the ongoing abuse of A.R.² between June 5, 2012 and February 14, 2013, defendant's first assignment of error regarding his motion to suppress involves facts stemming from a largely unrelated event occurring about seven months later. Police involvement in that later event led to a secondary investigation concluding in the indictments for which defendant was ultimately convicted. The following facts were adduced at a suppression hearing conducted on August 24, 2017.

On September 27, 2013, while at their home on Moonraker Drive in Slidell, Mr. and Mrs. Dobson witnessed a suspicious vehicle slowly and repeatedly passing and taking photographs of their home. After being alerted by their daughter that the vehicle passed by again, Mr. Dobson followed the driver, defendant, to his residence, and had a conversation with him. During their encounter at defendant's home, defendant told Mr. Dobson he had witnessed two young juveniles in the Dobsons' backyard engaging in sexual intercourse. Mr. Dobson had Mrs. Dobson bring their child over to see if defendant could identify whether or not she was one of the juveniles he claimed to have seen in the Dobsons' backyard. Defendant kept referring to her as "Zoey," despite Mrs. Dobson telling him that was not her name. Defendant told Mr. Dobson he keeps candy and toys in his truck for when he sees children, and he made several attempts to engage the Dobsons' seven-year-old daughter in conversation.

While at defendant's house, Mrs. Dobson noticed that he had children's toys and bicycles in his garage, even though he had no children. Mrs. Dobson also noted that defendant told her not to worry about his photograph taking because he liked to take photographs of birds. Defendant invited her daughter, who he referred to as "Zoey," to come by any time and to come back the next day to fish and ride bicycles. Defendant told Mrs. Dobson that he knew how long the Dobsons had been at their Moonraker Drive address and that "Zoey" liked to fish. Mrs. Dobson reported defendant seemed very focused on her daughter's movements.

When the Dobsons returned home, they notified the police. Thereafter, Deputy Brett Posner of the St. Tammany Sheriff's Office ("STSO") was dispatched to the Dobsons' home. The Dobsons told Dep. Posner that their daughter had been playing outside at the time, and the driver was holding the phone out of the vehicle window and appeared to be taking pictures. Their neighbor, Mr. Bouche, corroborated the story, saying he witnessed the suspect vehicle driving past with the driver holding a phone outside of the window.

The Dobsons told Det. Posner about their conversation with defendant and gave him the address where they spoke with defendant. Also, Mrs. Dobson reported to Dep. Posner that she had been called by the Office of Child Services ("OCS") twice over the previous two days asking if she had a nine-year-old daughter named "Zoey" and informing her that there were reports of children having sex in their backyard. Det. Posner noted that the Dobsons were visibly shaken and that Mr. Bouche appeared to be alarmed or scared.

Dep. Posner left the Dobsons' home on Moonraker Drive and drove to the address given to him by the Dobsons. Upon his arrival, Dep. Posner encountered defendant and informed him of his Miranda³ rights. Defendant waived his rights. When confronted with the allegation that he had been driving past the Dobsons' house taking photographs, defendant admitted he had driven past twice and had taken photographs. Defendant explained he was attempting to find the address of a house upon which he claimed to have made an OCS report in the weeks before. Specifically, defendant claimed to have witnessed indecent behavior between juveniles in the backyard. Defendant showed Dep. Posner the photos he had taken of the Moonraker Drive house on his phone.

After having talked about the incident with the Dobsons and their neighbor, Mr. Bouche, seeing their reactions and demeanor, along with defendant's later corroboration of some of their details, Dep. Posner found probable cause that defendant had committed the offense of stalking and arrested him.

In court, Dep. Posner identified the defendant as the man he arrested that day. Additionally, after the deputy viewed copies of the photographs recovered from defendant's phone, he Deputy Posner said the photographs were low quality and he couldn't tell whether there were children depicted in any of them.

Following defendant's arrest, STSO Detective Scott Davis went to the jail to speak with defendant regarding a pre-existing investigation. Det. Davis testified that he would have taken steps to interview defendant even had defendant only received a summons for stalking, rather than being arrested. Following that interview, Det. Davis furthered an investigation leading to the factually unrelated instant convictions. Det. Davis also testified that defendant's former employer, unprompted, contacted law enforcement in 2016 to notify them that they found on his work computer photographs of defendant performing sex acts on a minor.

ASSIGNMENT OF ERROR # 1: MOTION TO SUPPRESS

In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress. Specifically, defendant argues that he was arrested for innocuous, though admittedly "creepy" behavior, and his version of events were the most accurate; therefore, there was no probable cause or reasonable suspicion of stalking to justify any police contact with him on September 27, 2013. Without that contact, defendant reasons that there would not have been the subsequent investigation, including the search warrants obtained by police, leading to the instant convictions from which he appeals. The State, highlighting the testimony of Dep. Posner and written witness statements from the Dobsons and Mr. Bouche, contends there was sufficient evidence establishing probable cause such that law enforcement would have been "grossly negligent" had the officer not arrested defendant for stalking.

The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. See State v. Matthews, 2015-1281 (La. App. 1st Cir. 2/26/16), 191 So.3d 1080, 1083, writ not considered sub nom., State ex rel. Matthews v. State, 2016-1182 (La. 11/15/16), 209 So.3d 787. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. La. Code Crim. P. art. 703(D). A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Poole, 2009-1933 (La. App. 1st Cir. 3/26/10), 2010 WL 1170634, *2 (unpublished). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e ., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81 ; State v. Magee, 2017-1217 (La. App. 1st Cir. 2/27/18), 243 So.3d 151, 161. However, atrial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.

A peace officer may lawfully arrest a person without a warrant when he has reasonable cause⁴ to believe that the person to be arrested has committed an offense. La. Code Crim. P. art 213(A)(3). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Kennedy v. Sheriff of East Baton Rouge, 2004-0574 (La. App. 1st Cir. 3/24/05), 899 So.2d 682, 688, writ granted, 2005-1418 (La. 1/13/06), 920 So.2d 217, and rev'd on other grounds, 2005-1418 (La. 7/10/06), 935 So.2d 669. Although mere suspicion cannot justify an arrest, the...