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Lowder v. Madden

United States District Court, E.D. California

October 29, 2019

TIMOTHY LOWDER, Petitioner,
v.
RAYMOND MADDEN, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the petition filed on April 6, 2015, [1] ECF No. 1, which challenges petitioner's 2012 conviction for lewd acts with a child under the age of 14 years. Respondent has answered, ECF No. 17, and petitioner did not file a traverse.

         BACKGROUND

         I. Proceedings in the Trial Court

         A. Preliminary Proceedings and Conviction

         Petitioner was charged with four counts of lewd acts against a child under the age of 14. There were two trials in this case. During the first trial, the jury convicted petitioner of two lewd act counts against his niece, and a mistrial was declared as to two counts of lewd acts involving petitioner's daughter. In the second trial, the jury convicted petitioner of two counts of lewd acts against his daughter and sustained a multiple-victim allegation.

         At the start of the first trial, petitioner filed a motion in limine to exclude evidence pertaining to Barbie dolls that petitioner had altered by adding nipples to the breasts and a vagina. CT 130-32.[2] Petitioner argued that evidence of the Barbie dolls should be excluded as inflammatory, irrelevant, and more prejudicial than probative. Id. During the hearing on the motion, the prosecution argued that the evidence was relevant to petitioner's intent. 1 RT 31-32, 37.[3] The trial court granted the motion and found that the prejudicial effect of the evidence outweighed the probative value. CT 39-40.

         At the start of the second trial, petitioner again filed a motion in limine to exclude evidence pertaining to the altered Barbie dolls. CT 376-78. Petitioner advanced the same arguments made in his motion in limine from the first trial. Id. The prosecution argued the evidence should be permitted to show petitioner's sexual intent towards his daughter. 2 RT 109.[4]In response, petitioner argued that there is a concern that the jury will be so horrified and disgusted by the modified dolls that they will ignore the other evidence. 2 RT 110. Ultimately, the trial court denied the motion, finding that, although it appreciated the prior judge's ruling, the court was not bound by it and on balance the evidence is substantially more probative on the issue of intent than it is prejudicial. 2 RT 121.

         B. The Evidence Presented at Trial

         The following statement of the case is taken from the unpublished opinion of the California Court of Appeal on direct review:[5]

The first jury convicted defendant of two lewd act counts against M., defendant's niece, but deadlocked on two lewd acts counts involving L., defendant's daughter, and a mistrial was declared as to those counts. The second jury convicted defendant of two lewd act counts against L., and sustained the multiple-victim allegations.
The evidence at the two trials largely overlapped. We first will describe the evidence from the first trial. We will not repeat substantially similar evidence introduced at the second trial, but instead describe the material differences at that second trial.
First Trial
L.
L., defendant's daughter, was born in 2001 and was nine at the time of trial. On Christmas Eve or the night of Christmas, when she was seven and after her parents were divorced, defendant visited the family home and spent the night. While her mother and brother were asleep, L. was on the couch with defendant in the living room, watching television. Defendant touched her “private part” with his hand, under a blanket (count I). She told him to stop and moved to a chair. Defendant sat in the chair and touched her private part again, over her clothes (count II). She again told him to stop, and she went to bed. When she was about four or five, she was watching a movie on the couch and defendant accidentally touched her “privates” over her clothes, when he was rubbing her belly. She finally told her mother about the incidents because, “I was just hurting inside, because I don't like keeping secrets.”
L.'s prior statements
On April 13, 2009, Detective Mims monitored an interview of L. at the “SAFE Center, ” referring to “Special Assault Forensic Evaluation.” A recording of this interview was played for the jury.[6]L. said defendant touched her “inside the wrong place[, ]” and first did it by accident while “he was just trying to rub my belly, but the second time he did it on purpose.” This second incident had been at Christmas, and she had told him to stop “and then he [kept] on doing it again and again.” Contrary to her trial testimony, she said he first touched her in the swivel chair, and then touched her on the couch, but then she said, “Actually, first it was on the couch and then I moved to the swirly chair and then he went to the swirly chair and he [kept] on touching me in the wrong place and I said, ‘Stop it,' and he [kept] on doing it and then I just said, ‘Good night.'” She again said it started on the chair, but later repeatedly said it started on the couch. He touched her over her pajamas, multiple times because she would try to move his hand away and he would put his hand back on her.
L.'s mother Anne-Marie
On March 13, 2009, L. told her mother that defendant “had touched her privates” when she was four, before Anne-Marie and defendant had divorced. Anne-Marie asked L. if it could have been an accident, but L. “was very adamant and said, ‘No.'” L. cupped her hands over her vagina to show where defendant had touched her, and at one point L. covered her face with her hands. A couple of days later, L. mentioned the Christmas incident. When Anne-Marie asked L. why she had waited to say anything “she cried and said, ‘Because I didn't want to get Daddy in trouble, and I didn't want Daddy to go to jail.'” Anne-Marie called defendant around March 14 or 15, 2009, and told him L. had said he touched her privates, and he did not deny the allegation, instead, “[t]here was a long silence on the phone, and then he said, ‘Wow. Whoa. Wow.'” When defendant called sometime later to ask when he could see his children and when they could discuss L.'s claims, he did not deny the claims, but “begged me and told me that he would go get help[, ]” and said he did not think L. would lie about such a matter. Anne-Marie had noticed that L. had been less “enthusiastic to see” defendant before then.
Later, Anne-Marie initiated a recorded pretext telephone call to defendant. In that call, defendant said he did not remember why he did “anything” and did not know what happened, but “all I can think of is it was in a drunken stupor, and I didn't know what the fuck I was doing.” He admitted he did not think L. would lie about this, and then said he was tickling her, “And then I was like, ‘Whoa, sorry.' And I was touching her chest, and I didn't mean to. And I was like whoa.” When Anne-Marie referred to an incident when defendant videotaped “Kara” “and zoomed in and out of her behind[, ]” and then asked defendant about M., defendant said, “That was when I was like 17 or something like that. I told you about that. I told you I had talked about that with M., and I tried to work that out. And I was wrong.” He then referenced abuse he had suffered and stated “I just was trying to pass on the shame. . . . And it wasn't right.” When asked if he touched L.'s vagina, he could not remember, but then admitted that, “A couple [] years ago, I think I was grabbing her on her inner thigh, and I was like whoa, and I tried -- and I backed off. But I don't know what happened.” Defendant promised to obtain counseling.
At trial, Anne-Marie explained that Kara was a 13-year-old former next-door neighbor, and Anne-Marie had found a videotape defendant had shot in which he “was zooming in and out on her bottom.” Later, after defendant had the camera, Anne-Marie tried to play the tape back but “I got snow.” In 2008, defendant stayed at Anne-Marie's house for several days around Christmas. Although he drank Christmas Day and passed out in the early afternoon, by the time she and her son went to bed at about 9:30 p.m., he was not drunk, and he and L. were still awake.
Cheyenne
Cheyenne was born in 1980, and when she was between 12 and 14, defendant had been her mother's boyfriend. When she was about 13, when defendant was telling her a story and brushing her hair “he kind of just kind of kept going down, and then he just kind of rested his hand on my backside for [a while]. I just had a kind of weird feeling, so I just kind of pretended I was asleep, and then he left.” He rested his hand on her backside, over her clothing, for “two minutes.” Sometimes when he would hug Cheyenne or her sister, “he'd make it so he could put his hands kind of on our chest.” She told her mother about the brushing incident the next day and defendant left “probably that night or the next day, ” but eventually came back.
Detective Carol Mims
Detective Mims spoke with M. on the telephone on April 16, 2009, and M. “was emotional[, ]” and she spoke with M. in person on May 7, 2009.
Detective Mims interrogated defendant on April 29, 2009, and a videorecording was played for the jury. Defendant said he was “mortified” and “pretty sad” about the fact his daughter said he touched her inappropriately, and he could not figure out what could have happened to cause her to say so, though he admitted to alcohol blackouts. He conceded he had touched L. on the chest while cuddling with her and rubbing her, and that she had given him a “weird” look which caused him to stop. He did not remember touching her vagina, as she had reported. He admitted he had had “other issues” with teenage girls, including Kara, who was about 14: Around 1997 or 1998, he had been videotaping [his daughter walking or her first steps], but his wife “felt like I was zooming in on Kara[, ]” on her breasts. He also mentioned that when he was possibly not quite 18 but maybe while in his 20's, there was an incident with M., but “we've worked it out. We talked about it.” In this incident, when M. was about eight or nine, they were wrestling, he got aroused, as did she, and she rubbed his penis under his pants until he ejaculated. Both apologized for what happened, and they were “close after that still.” Defendant claimed M. started it, and wanted to straddle him and rub her vagina on him. “It was exhilarating, but it wasn't -- I don't know. There was a lot of shame afterwards.” When Detective Mims explained that M. had described defendant putting his finger in her vagina, defendant said he had never done that. Defendant had a girlfriend (Lisa) who had two daughters, and once defendant was brushing the hair of the older daughter, who was 12 or 13, when she became upset, apparently because defendant told her she was beautiful. When told that Cheyenne had reported he had “touched her butt on the outside of her clothing[, ]” defendant replied, “Um. I don't think it was intentional.” He conceded Lisa was distraught about the incident and he had to leave. When Detective Mims stated that defendant had a history, “in that you get aroused by younger girls.” Defendant replied: “To a point, yeah.” But he denied being aroused by his own daughter, continued to deny remembering doing anything to her, but agreed he needed therapy and asked if the detective had “any references as far as counselors or therapists that would be good for me?” When Detective Mims later repeated that defendant was aroused by younger girls, defendant said, “I've tried to deal with that over the years.” He was “nodding in agreement” when she said he was aroused by young girls.
M.
M., born in 1983, was defendant's niece. When she was about four or five, she was visiting defendant, in the bed with him, when he touched her vagina under her clothing, but did not penetrate her vagina. She did not report this, “Because I didn't want him to get in trouble.” When she was about seven or eight, at the American River, defendant tried to get her to go into the bushes with him, and rubbed her back and “behind area” over her clothing, but defendant got scared when M.'s brother rode by on a bicycle. M. did not report this incident because she thought it was not important. When M. was about 13, at defendant's apartment, lying on his bed, he came in and put his hand on her vagina, under her clothes, for about four or five minutes, and moved his hand around, but did not penetrate her vagina (count III). M. didn't say anything because she was scared. Then he took her hand and made her feel his “hard” penis on the outside of his clothing, and moved her hand around, just “for a couple seconds, ” until M.'s brother came in the room (count IV). When she was 13 or 14, at the apartment defendant shared with Anne-Marie, when she was standing in the computer room defendant “placed his hand on my butt” and moved it around, stating, “I wish that I could be with you.” When asked why she continued to be in defendant's presence after he molested her, M. testified she loved him, he was her uncle, and he had been her only consistent male role model. However, she also testified she was scared to report him and hated him at the same time she loved him. After the last incident, when she was 15, M.'s mother sent her to live with defendant and Anne-Marie in Oregon for several months, and she did not tell her mother about what had happened because she did not want defendant to get into trouble, but did tell her mother she did not want to live there. She had no memory of an alleged incident (as described by defendant in his statement to Detective Mims) when she was about eight in which she was wrestling with defendant and she rubbed his penis.
Defendant
Defendant claimed that at the time of his police interrogation, he was depressed, possibly suicidal, and had been drinking heavily and using methamphetamine. He claimed he was rubbing L.'s stomach while they watched TV, she looked at him and he realized his had “had lingered at her chest, ” so he apologized. He never intentionally touched her vaginal area. He had no sexual interest in his daughter, or in other young girls. He never intentionally touched Cheyenne's buttocks. He denied any incident with M. when she was three or four, and denied a sexual interest in her. The incident he described to Detective Mims in which he ejaculated as he wrestled with M. happened when she was about five or six (not eight, as he had said before) and was “quite disgusting.” He admitted it was “exhilarating” at the time, as he had told Detective Mims, and claimed that was the issue on which he requested a referral to a counselor. He denied the incident M. described at the American River. He claimed he denied touching L. inappropriately when Anne-Marie first called him to ask about it. He claimed Kara, aged 13, had been infatuated with him, which he found flattering. He denied zooming in and out on Kara's breasts when he videotaped Kara.
The first jury convicted defendant of the two counts involving M., but deadlocked on the counts involving L., and the trial court declared a mistrial on those counts.
Second Trial
The principal differences at the second trial were that the second trial judge admitted additional uncharged act evidence regarding Destiny and evidence that defendant made sexual modifications to Barbie dolls that the first trial judge had excluded, M. did not testify (but the parties stipulated that defendant had been convicted of molesting her), and an expert testified about Child Sexual Abuse Accommodation Syndrome (CSAAS).
Anne-Marie
Anne-Marie testified at the second trial consistent with her earlier testimony. She also testified that she had purchased Barbie dolls for L.'s birthday, they went missing, and Anne-Marie found them in February or March of 2007, in a work shed, with added nipples, ÔÇťAreolas that looked very realistic[, ...

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