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.

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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..

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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.

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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.
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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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