State v. Terry

• Citation: 108 So.3d 126
• Decision Date: 21 November 2012
• Docket Number: No. 47,425–KA.,47,425–KA.
• Parties: STATE of Louisiana, Appellee v. Terry Lynn TERRY, Appellant.
• Court: Court of Appeal of Louisiana (US)

108 So.3d 126

STATE of Louisiana, Appellee
v.
Terry Lynn TERRY, Appellant.

No. 47,425–KA.

Court of Appeal of Louisiana,
Second Circuit.

Nov. 21, 2012.

[108 So.3d 131]

Elton B. Richey & Associates, LLC by Christopher Hatch, Shreveport, LA, for Appellant.

Terry L. Terry, Pro Se.

Charles R. Scott, District Attorney, Jacob P. Broussard, Laura W. Fulco, Brian H. Barber, Assistant District Attorneys, for Appellee.

Before DREW, MOORE & SEXTON (Pro Tempore), JJ.

SEXTON, Judge Pro Tempore.

[2 Cir. 1]Following a jury trial, Defendant Terry Lynn Terry was convicted of three counts of molestation of a juvenile in violation of La. R.S. 14:81.2. Thereafter, Defendant was sentenced to two concurrent sentences of 15 years' imprisonment at hard labor on Counts I and II and 50 years' imprisonment at hard labor on Count III. Twenty-five years of the 50–year sentence were ordered to be served without benefit of parole, probation or suspension of sentence. All sentences are to run concurrently and Defendant was given credit for time served. Defendant was notified of his requirement to register as a sex offender (upon release) and the trial judge imposed 30 days in parish jail “in lieu” of court costs. Defendant now appeals. We affirm Defendant's convictions and sentences.

FACTS

Defendant was convicted of molesting three persons, A.L., T.C. and S.B. ¹ A.L. and T.C. are sisters and the biological daughters of Defendant and his first wife. S.B. is the daughter of Defendant's nephew.

In 2008, T.C. received a telephone call from an investigator attempting to contact Defendant about past-due payments on a vehicle. During the conversation, T.C. learned that her father had remarried and that there were two young children, a boy and a girl, living with them. T.C. was concerned because her estranged father had molested her and her sister, A.L., when they were younger. T.C. immediately contacted A.L., who in turn contacted the Office of Community Services (“OCS”) to report that Defendant had children in his home and that he had a prior history of [2 Cir. 2]molesting his daughters. Once OCS was able to locate its old files on Defendant, A.L. and T.C., A.L. was told that nothing could be done unless she pressed charges against Defendant. A.L. contacted Detective Dorothy Brooks of the Caddo Parish Sheriff's Department and discussed her concerns and reasons for moving forward with the allegations against her father. An investigation was conducted by the Caddo Parish Sheriff's Department, which ended with Defendant being charged with three counts of molestation of a juvenile.

Following a jury trial, Defendant was found guilty as charged on three counts of molestation of a juvenile in violation of La. R.S. 14:81.2(A) and (C) on two counts (victims A.L. and T.C.) and in violation of La. R.S. 14:81.2(A), (C) and (E) on one count (victim S.B.). Defendant filed motions for post-conviction judgment of acquittal and/or modification of judgment. In addition, a motion for new trial was filed. The motions were heard and denied by the trial court. Immediately thereafter, Defendant

[108 So.3d 132]

was sentenced on Counts I and II to 15 years at hard labor and 20 days in jail in lieu of payment of court costs.² On Count III, Defendant was sentenced to 50 years at hard labor with 25 years of the sentence to be served without benefit of probation, parole or suspension of sentence and to 30 days in jail in lieu of court costs. The sentences were imposed concurrently and Defendant was given credit for time served. A timely motion to reconsider sentence was denied and this appeal ensued.

[2 Cir. 3]Trial Testimony

A.L., Defendant's oldest daughter, was the first to testify. A.L. stated that she was born on January 31, 1980. A.L. testified that she and the family (A.L., her sister T.C., their brother S.T., their mother and Defendant) lived in several homes, including one in Shreveport. A.L. did not remember the first time her father touched her, but she testified, “I don't really remember a first time per se. It just seems to be something that continued on. I could give you certain situations that I recall.” According to A.L., her father began touching her inappropriately when she was in middle school. A.L. recalled first of being abused by Defendant at the family home on Riding Club Lane. Her mother, who had not worked for a long time, had gotten a job working nights at Wal–Mart.

While she was not certain about all the specifics of the instances of abuse, A.L. remembered that she would pretend to be asleep when her father would enter the room that she shared with her sister. Defendant would touch and fondle her breasts and vaginal area while she pretended to be asleep.

A.L. was also able to recall instances when Defendant would take showers and “we would use a soap and help him rub himself.” A.L. stated that Defendant would be stimulated during that time. A.L. also recounted instances when Defendant would abuse her while helping her with homework. A.L. recalled one incident where Defendant was helping her with math homework and he had his hand inside her shirt. Her brother S.T. walked into the room and Defendant moved his hand very quickly. A.L. [2 Cir. 4]was unsure whether S.T. had seen anything, but she said there was a sudden tension in the room. A.L. did not know whether S.T. asked a question or said anything, but he walked out of the room and closed the door. According to A.L., Defendant usually locked the door, but not the time her brother walked in on them.

The fondling eventually progressed to oral sex before A.L. went to high school. A.L. testified in graphic detail how Defendant would perform oral sex on her, as well as having her perform oral sex on him. She stated her father begged her many times to allow him to have sex with her, to let him “put it in,” and while Defendant would rub his penis “all in the area,” there was never any penetration. A.L. recalled this happening even when Defendant was living with his sister. Finally, A.L. recounted instances where Defendant would lay a towel on the floor in his room; A.L. was unclothed and Defendant rubbed baby oil all over her body.

At her boyfriend's insistence, A.L. finally told her mother about the abuse. However, she testified that her mother was not very supportive of her and, while her mother did make Defendant leave the home, she allowed him to return sometime

[108 So.3d 133]

later. A.L. testified that she was upset by Defendant's return. She testified, “I hated him being there, ... it made me feel like nothing.” A.L. ran away to a friend's home during this time, but returned when OCS was called. A short time later, A.L. went into foster care the summer before her freshman year in high school.

A.L. recalled that she and her sister T.C. were taken from the home, but her brother S.T. was allowed to stay. A.L. and her sister stayed with [2 Cir. 5]their foster parents for three months or so before her Aunt Linda (her mother's sister) took them into her home.

A.L. indicated she did not want Defendant to have any more children, “[j]ust for my own peace of mind.... I guess at the time it made me feel better to say it because I felt like I was doing something.” Once A.L. found out that Defendant had a girlfriend with a daughter and she wanted to warn Defendant's girlfriend. A.L. wrote a letter to Defendant's girlfriend. Defendant apparently intercepted the letter and contacted A.L. or her mother to express his displeasure with A.L. for sending the letter.

At this juncture, we note the later testimony of Dr. Ann Springer, a pediatrician at LSUHSC and the Medical Director at the CARA Center, which provides outpatient diagnosis and management for victims and suspected victims of all forms of child abuse and neglect. Dr. Springer stated that she examined A.L. on January 20, 1994, and A.L. had a normal exam. Dr. Springer opined, however, that a normal exam does not rule out sexual abuse. Most times, even when a child has been penetrated, healing has occurred by the time the child gets to medical care. Her diagnosis of A.L. was sexual molestation based on reported history.

As previously noted, in 2008, A.L. contacted OCS after receiving a call from her sister, T.C. A.L. stated that T.C., who lived in their childhood home with her own family, would periodically receive telephone calls from people who were trying to contact Defendant. T.C. didn't usually share much information with A.L. about the calls; however, T.C. did contact A.L. at that time because she said she had a weird feeling about the most recent [2 Cir. 6]call. A lady was attempting to contact Defendant to repossess his vehicle. T.C. was informed that Defendant had a wife and kids. Once A.L. received this information, she wanted the contact information to follow up on the matter.

A.L. called the person who had been attempting to locate Defendant and obtained some additional information. Thereafter, A.L. contacted OCS, telling them that she “had this horrible feeling I just knew something was wrong.” She wanted them to look further into it.

A.L. did not think that OCS was aware of her father's history because the records had not been in the computer system. A.L. testified that she did not know if the children were male or female, but she “just had this overwhelming feeling that something was not right.” OCS told her that there was nothing they could do about it unless she pressed charges against her father. Prior to finding out that there were children in Defendant's custody, A.L. had not considered pressing charges against her father. As stated, A.L. initially met with Det. Brooks regarding her complaint and provided the officer with information about Defendant's past abuse of her. A.L. learned that the children in Defendant's custody were the children of her paternal cousins, whom she had not met.

A.L. then learned that Defendant was arrested for molesting her, her sister T.C. and S.B. A.L. went to visit Defendant at

[108 So.3d 134]

Caddo...