State v. Robinson

336 So.3d 567

STATE of Louisiana

v.Nathaniel O. ROBINSON

NO. 2021-KA-0254

Court of Appeal of Louisiana, Fourth Circuit.

February 18, 2022

Jason Rogers Williams, District Attorney, G. Benjamin Cohen, Chief of Appeals, Brad Scott, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Meghan Harwell Bitoun, LOUISIANA APPELLATE PROJECT, P.O. Box 4252, New Orleans, LA 70178-4252, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )

Judge Dale N. Atkins

This is a criminal case. Defendant, Nathaniel Robinson, appeals his convictions and sentences for seventeen counts of video voyeurism, seventeen counts of attempted indecent behavior with a juvenile, and one count of indecent behavior with a juvenile. For the following reasons, we remand this matter to the district court for further proceedings consistent with this opinion.

STATEMENT OF CASE

I. FACTUAL BACKGROUND

In November 2016, R.L.¹ was sixteen years old. At that time, she lived in Algiers, Louisiana, with her mother, Mia Robinson (hereinafter "Mrs. Robinson"); her stepfather, Nathaniel Robinson (hereinafter "Defendant"); her stepsister; and her two half-brothers. The family lived in a three-bedroom house, and R.L. shared one of the bedrooms with her siblings. The house had one bathroom.

One day, in November 2016, R.L. logged onto the family computer to use it for schoolwork. While logged onto the computer, R.L. discovered several nude videos of herself saved in a file labeled "RL" on the computer. Thereafter, she told her mother about the videos and showed them to her mother. The next day, Mrs. Robinson called the New Orleans Police Department (hereinafter "NOPD") to report the videos. During the course of the ensuing investigation, NOPD discovered seventeen videos in total. Fifteen of the videos showed R.L. in the bathroom of the family home, and she was either half-nude or fully nude while entering and exiting the shower. One of the videos depicted Defendant and R.L. in another room in the family home while R.L. wore a T-shirt and her pants were pulled down. The last video showed Defendant and Mrs. Robinson having intercourse.

Defendant admitted to recording the videos.

II. BILL OF INFORMATION AND ARRAIGNMENT

The State of Louisiana (hereinafter "the State") initiated criminal proceedings against Defendant in October 2017. Specifically, on October 16, 2017, the State charged Defendant by bill of information with seventeen counts of video voyeurism, which constitutes a violation of La. R.S. 14:283 ; seventeen counts of indecent behavior with a juvenile, which constitutes a violation of La. R.S. 14:81(H)(1) ; and seventeen counts of pornography involving juveniles, which constitutes a violation of La. R.S. 14:81.1. On October 18, 2017, Defendant appeared for arraignment, and the State stipulated that there was no probable cause as to the seventeen counts of pornography involving juveniles; so these charges were dropped. Defendant entered pleas of not guilty as to the remaining charges of video voyeurism and indecent behavior with a juvenile.

III. VERDICT

On August 7, 2019, a jury returned a verdict of guilty as charged as to counts 1-17, video voyeurism. As to counts 18-33, indecent behavior with a juvenile, the jury found Defendant guilty of attempted indecent behavior with a juvenile, violations of La. R.S. 14(27):81. As to count 34, the jury found Defendant guilty as charged of indecent behavior with a juvenile.

IV. MOTION FOR NEW TRIAL AND SENTENCING

On September 13, 2019, Defendant filed a Motion for New Trial, which the district court denied that same day. Also on the same day, the district court conducted Defendant's sentencing hearing. The district court asked whether defendant was ready for sentencing, to which counsel for Defendant replied "Yes, sir." R.L. elected not to give an oral victim impact statement at the sentencing hearing; however, a written victim impact statement was read into the record. Defendant also provided a statement.

Following Defendant's statement, the district court filed into the record a memorandum in which the court addressed the sentencing guideline requirements contained in La. C.Cr.P. art. 894.1(A) and subsequently sentenced Defendant to a total of fifteen years with the sentences on certain counts running consecutive to some counts and concurrent with other counts.² Specifically, the district court imposed the following sentences: counts 1, 2, 3, 18, 19, and 20 were ordered to run concurrent with each other at two years each; counts 4, 5, 6, 7, 21, 22, 23, and 24 were ordered to run concurrent with each other at two years each; counts 8, 9, 10, 25, 26 and 27 were ordered to run concurrent with each other at two years each; counts 11, 12, 13, 28, 29, and 30 were ordered to run concurrent with each other at two years each; counts 14, 15, 16, 31, 32, and 33 were ordered to run concurrent with each other at two years each; and counts 17 and 34 were ordered to run concurrent with each other at three years and five years, respectively. Each set of concurrent sentences was ordered to run consecutively to every other set of sentences. Also, on September 13, 2019, the district court denied defendant's Motion for New Trial.

V. MOTION FOR OUT-OF-TIME APPEAL

On June 9, 2020, Defendant filed a Motion for Out-of-Time Appeal, which the district court granted. This appeal follows.

VI. POLLING SLIPS

While instructing the jury in this case, the district court advised the jurors that ten out of twelve of them must agree to the verdict. When the jury returned with a verdict, the district court asked the jury if there were at least ten jurors who agreed with the verdict, and the jury foreperson responded affirmatively. The record indicates that the jury issued its verdict but that the district court did not follow up with a jury count.

On July 26, 2021, this Court issued an order to the district court to produce the jury polling slips, or in lieu of locating the polling slips, to provide a certificate detailing the steps made to locate the slips, including any information discovered as to the number of jurors voting to convict Defendant. In response, on August 9, 2021, the district court³ filed with this Court correspondence and a copy of an order dated July 28, 2021, in which the district court ordered the Clerk of Criminal District Court (hereinafter "Clerk of Criminal Court") to unseal the polling slips, if any exist, and to provide them to this Court. In its correspondence, the district court explained that, as of August 6, 2021, it had not yet received the record for inspection. Further, the district court stated that "[t]he minutes of trial do not reflect polling was conducted."

On August 13, 2021, this Court ordered the Clerk of Criminal Court to file the polling slips in the Clerk's Office of this Court. In lieu of locating the polling slips, the Clerk of Criminal Court was ordered to file a certificate with this Court detailing the steps taken to locate the polling slips. In response, this Court received correspondence from the Clerk of Criminal Court, which stated that "[f]ollowing a thorough inspection of the Clerk's Office it was determined that no jury polling slips were found in the record. Additionally, no jury polling slips were ever placed under seal concerning the referenced matter."

TRIAL

The matter proceeded to a jury trial, which began on August 6, 2019. The State presented three witnesses, namely Detective Nijel Baddoo (hereinafter "Detective Baddoo"), Kate Homan (hereinafter "Ms. Homan"), and R.L., the victim. Counsel for Defendant presented Detective Baddoo, Mrs. Robinson, and Defendant as witnesses.

I. STATE'S CASE IN CHIEF

A. Testimony of Detective Baddoo

First, the State called Detective Baddoo as a witness. Detective Baddoo testified that in November 2016, he was assigned to NOPD's Child Abuse Unit. He stated that in November 2016, he received an assignment to investigate alleged crimes involving videos of a sixteen year old female. Detective Baddoo explained that during his investigation, he interviewed the victim's mother, Mrs. Robinson, and later observed an interview with the victim, R.L., at the Children's Advocacy Center (hereinafter "CAC"). He testified that Mrs. Robinson informed him that her sixteen-year-old daughter had located some nude videos of herself on the family computer, which was located in the living room of their home.

Detective Baddoo testified that he subsequently obtained a search warrant to seize the family computer and hard drive, as well as a second warrant to search the hard drive of the seized computer. He explained that while in the home executing the warrants, he saw several cameras in plain view, specifically the cameras were black, mounted on the wall, and located in the living room, kitchen, and children's bedroom. Detective Baddoo noted that, while at the home, he also took photographs, including of the visible cameras and the family computer. After he identified these photographs, the district court admitted them as State's Exhibit 1. Detective Baddoo stated that, despite searching, he could not locate a camera in the bathroom and that NOPD never retrieved a camera from the bathroom. He explained that NOPD did determine that there had at some point been a camera in the bathroom and that it was on a towel rack based on the vantage point in the videos of R.L. Detective Baddoo testified that, during the course of his investigation, Defendant informed him that the camera in the bathroom was the size of a clothing button.

Detective Baddoo further testified that NOPD's Forensic Department examined the computer hard drive and located video files in a folder labeled "RL." He explained that NOPD discovered a total of seventeen videos.

State's Exhibits 3A-3H were identified by Detective Baddoo as videos of R.L. nude taken from inside the family...