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State v. Pittman

Court of Appeals of Louisiana, Second Circuit

April 11, 2018

STATE OF LOUISIANA Appellee
v.
TERRY MATTHEW PITTMAN Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 323, 055 Honorable Katherine Dorroh, Judge

          THE HATCH LAW FIRM, LLC By: Christopher Hatch Counsel for Appellant

          TERRY MATTHEW PITTMAN Pro Se

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          TRENEISHA J. HILL JOSHUA K. WILLIAMS SUZANNE M. WILLIAMS Assistant District Attorneys

          Before WILLIAMS, PITMAN, and COX, JJ.

          PITMAN, J.

         Defendant Terry Matthew Pittman was convicted of one count of indecent behavior with juveniles, one count of molestation of a juvenile under the age of 13 and one count of pornography involving juveniles. For the conviction of indecent behavior with juveniles, the trial court sentenced Defendant to serve five years at hard labor and a fine of $2, 500. For the conviction of molestation of a juvenile under the age of 13, the trial court sentenced Defendant to serve 60 years at hard labor, 25 of which will be served without benefit of probation, parole or suspension of sentence. For the conviction of pornography involving juveniles, the trial court sentenced Defendant to 15 years at hard labor and a fine of $2, 500. The trial court ordered that these three sentences be served consecutively. Defendant appeals his convictions and sentences. For the following reasons, we affirm Defendant's convictions; affirm his sentences, with instructions for the correction of the minutes; and remand to the trial court for the limited purpose of providing Defendant with the appropriate written notice of the sex offender registration requirements.

         FACTS

         The state charged Defendant by bill of information with one count of indecent behavior with juveniles in violation of La. R.S. 14:81(A)(2), one count of molestation of a juvenile in violation of La. R.S. 14:81.2 and one count of pornography involving juveniles in violation of La. R.S. 14:81.1. As to Count One, the state alleged that on April 20, 2014, Defendant transmitted a textual or written communication depicting lewd and lascivious conduct, text and words to M.P., [1] a person reasonably believed to be under the age of 17 and reasonably believed to be at least two years younger than Defendant, with the intention of arousing and gratifying the sexual desires of M.P. or Defendant. As to Count Two, the state alleged that between 2010 and April 2014, Defendant committed lascivious acts upon the person or in the presence of M.P., a child under the age of 17 and at least two years younger than Defendant, with the intention of arousing or gratifying the sexual desires of M.P. or Defendant, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision of M.P. As to Count Three, the state alleged that on April 23, 2014, Defendant possessed visual electronic reproductions of sexual performances involving children under the age of 17.

         In a pretrial La. C.E. art. 412 motion, Defendant sought to introduce evidence regarding a sexual relationship between M.P. and a young man named Brian McCreary. He asserted that Mr. McCreary pled guilty to carnal knowledge of a juvenile as a result of this relationship and that this evidence is favorable to him (Defendant). The state responded that evidence of sexual behavior between M.P. and Mr. McCreary is protected by La. C.E. art. 412 and is inadmissible. Following a hearing, the trial court denied the motion, finding that M.P.'s sexual activity with Mr. McCreary is not relevant or probative and is not intended to show the consent of M.P.

         Trial began on September 14, 2016. M.P. testified that her birthday is April 28, 1999, and that Defendant is her father. She stated that her father began abusing her five days before she turned 11 years old. She and her father were watching television that evening in the living room, while her stepmother, Nina Long, and her stepsiblings were asleep in their bedrooms. While watching television, Defendant fell asleep. She kissed him on the cheek to say good night, and he woke up, grabbed her by the shoulders, pulled her on top of him and started kissing her. She noted that at first she assumed he thought she was her stepmother; but, when he looked at her, she discerned that he knew who she was. He then began to run his hands over her chest and down the sides of her hips and eventually touched her underneath her nightgown. He moved her so that she was lying on her back on the couch, undressed her so that her nightgown was up around her shoulders and removed her underwear. He kissed her all over her body and then performed oral sex on her. She stated that he then took her into the bedroom where her younger sister was sleeping, and they had vaginal intercourse on the floor. She testified that this was the first time she had sexual intercourse. He then took her into the bathroom and began pacing and mumbling, acting scared and upset, like he was in trouble. He asked her if she had started her period yet, and she told him that she had not. He told her that he would get her a pill in the morning that would keep her from getting pregnant and that she would have to remind him to get her the pill. She stated that he did give her the pill.

         M.P. further testified that she and Defendant continued to have sexual intercourse for four years and that she stopped counting how many times it happened after the ninth time. She stated that due to the custody agreement between her parents, she alternated weeks living with her mother and father. She noted that when she stayed with her father, she "would be lucky to leave his house after that week without having to have sex with him." They had sexual intercourse in the laundry room, in the shed, in the backyard, in the pool and in his truck. She noted that a majority of the occurrences happened in the truck and that they had oral, vaginal and anal sexual intercourse. Once she began her menstrual cycle, Defendant used a condom and would sometimes give her a pill.

         M.P. also testified that when she was 11 or 12 years old, her stepmother walked into the laundry room where she and Defendant were having sexual intercourse. Defendant and Ms. Long got into an argument, and Defendant threatened Ms. Long. Ms. Long later tried to talk to her about what was going on; but, out of fear, she denied that anything was happening. Ms. Long contacted Child Protective Services, and a detective came to school to talk to her. She admitted that she lied and stated that she was about to take a bath and needed a towel, so she went to the laundry room and slipped and Defendant was trying to pick her up when Ms. Long observed them. She stated that nothing came of this investigation and that was the only time she was interviewed.

         M.P. further testified that when she was 12 or 13 years old, Ms. Long saw her and Defendant having sexual intercourse a second time when they were in the shed next to the house. She stated that the sexual intercourse with her father continued until five days before she turned 15, a total of four years. She noted that Defendant did not offer her anything in exchange for sexual intercourse, but did like to give her gifts, including flowers. Defendant told her that if she went to the police, he would be taken away and would not be able to take care of her siblings and that they would grow up without a father. She stated that he specifically told her not to tell anyone.

         M.P. also testified that she and Defendant communicated by text message and would exchange nude photographs of themselves with each other. She sent him photographs when he asked for them, and this occurred more times than she could remember. She stated that when she was around the age of 14, he repeatedly asked her for a video of her masturbating. She eventually used her laptop to record a video of herself in the bathroom of her mother's house. Defendant downloaded the video from her laptop onto a red and black SanDisk flash drive and then put the flash drive in his pocket. She knew Defendant viewed the video because he commented that it was suspicious that she said "Dad" a lot in the video.

         M.P. further testified that she and Defendant also role played in a sexual manner via text message, i.e., she played the slave and he played the master. She stated that this role playing began after he discovered that she and her friend role played in writing. She stated that she left a paper at Defendant's house, on which she and her friend had written out their role playing, in an attempt to disgust him so that he would leave her alone.

         M.P. also testified that during the four years she engaged in sexual intercourse with Defendant, she always believed that it was wrong. She stated that she went from being a straight-A student to having failing grades. She was depressed and tried to commit suicide twice by cutting her arms and legs with a razor. She testified that Defendant was arrested after she confided to her friend Mr. McCreary that she lost her virginity to her father. Mr. McCreary told his mother and his mother told M.P.'s mother, and the police were called.[2]

         Nina Long testified that she and Defendant were in a relationship for 14 years and have three children together. She stated that she has known M.P. since M.P. was three years old and that M.P. lived with her and Defendant off and on during M.P.'s childhood. She testified that in January 2012, she walked into the laundry room during the night and observed Defendant in his boxers and M.P. without clothing and that M.P. was straddling Defendant. She "freaked out, " went to get her telephone and told Defendant she was going to call the police. Defendant forcefully took the telephone from her, took her keys and blocked the door. She testified that she also walked in on Defendant and M.P. in the shed and that she observed M.P. bent over the weight bench with her shorts pulled down and Defendant behind her. She also testified about other odd behavior she observed between M.P. and Defendant, including that they "would cuddle up together, and hold each other." She stated that while she and Defendant lived together, she observed pornography in their house, including child pornography. She saw child pornography on his computer and cellphone and observed Defendant watching child pornography on his computer. She knew the girls in the pornography were underage because they were visibly prepubescent.

         Sergeant James Moore and Detective Jared Marshall, both of the Caddo Parish Sheriff's Office, testified about their involvement in the investigation. Sgt. Moore testified that on April 24, 2014, he interviewed M.P. and her mother. He seized M.P.'s cellphone and placed it into evidence. Det. Marshall retrieved a series of sexually explicit text messages between M.P. and Defendant from M.P.'s cellphone. Sgt. Moore determined that these text messages were probable cause to arrest Defendant for indecent behavior with juveniles, and he arrested Defendant at his house. Ms. Long allowed Sgt. Moore into the house, and he seized Defendant's cellphone. He then interviewed Ms. Long. Defendant and Ms. Long provided Sgt. Moore with Defendant's telephone number, which was consistent with the number that exchanged the explicit text messages with M.P. Sgt. Moore also retrieved a red and black SanDisk flash drive from Defendant's house. Det. Marshall ran a forensic preview on the flash drive and found approximately 15 files of child pornography, including a video of M.P. masturbating in a bathtub. Sgt. Moore noted that all of the files had been deleted from the flash drive except for the video of M.P. He viewed the contents of the flash drive and then secured an arrest warrant for pornography involving juveniles.

         Defendant chose not to testify at trial, but the defense proffered a letter written by him, containing what his testimony would have been had he been permitted to testify regarding M.P.'s relationship with Brian McCreary.

         On September 15, 2016, a unanimous jury found Defendant guilty as charged of all three counts.

         On September 22, 2016, Defendant filed a motion for new trial. He argued that the trial court erred in denying his La. C.E. art. 412 motion seeking to introduce evidence pertaining to the sexual behavior of M.P. with Mr. McCreary. He also filed a motion for post-verdict judgment of acquittal, contending that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of molestation of a juvenile below the age of 13. In the alternative, he argued that he is entitled to a modification of the verdict and to a judgment of conviction of the lesser included responsive offense of molestation of a juvenile.

         At a hearing on September 22, 2016, the trial court denied Defendant's motions for new trial and for post-verdict judgment of acquittal. Defendant waived any legal delays for sentencing. After reviewing the La.C.Cr.P. art. 894.1 factors, it sentenced Defendant to serve 5 years at hard labor and a fine of $2, 500 for the conviction of indecent behavior with juveniles. For the conviction of molestation of a juvenile under the age of 13, it sentenced Defendant to serve 60 years at hard labor, 25 of which to be served without benefit of probation, parole or suspension of sentence. For the conviction of pornography involving juveniles, it sentenced Defendant to 15 years at hard labor and a fine of $2, 500. It ordered these three sentences to be served consecutively.

         On October 20, 2016, Defendant filed a motion to reconsider sentence and argued that his sentences are excessive. He contended that his sentences should run concurrently rather than consecutively. On October 28, 2016, the trial court filed a ruling denying Defendant's motion to reconsider sentence.

         Defendant appeals his convictions and sentences.

         DISCUSSION

         Insufficient Evidence - Indecent Behavior with Juveniles

         Defendant argues that the evidence adduced at trial is insufficient to support his conviction of indecent behavior with juveniles. He contends that his conviction was predicated on a series of text messages retrieved from M.P.'s cellphone and that the state failed to prove that he was the person who actually sent those text messages or that the messages were sent from his cellphone. He asserts that the state relied solely upon M.P.'s testimony and the contact information in her cellphone to identify the person with whom she was communicating. He contends that it is simple to change the contact name and number associated with sent or received text messages, regardless of whether the contact information accurately reflects the number or name of the person with whom the conversation occurred.

         The state argues that the evidence presented at trial is more than sufficient to prove all of the elements of indecent behavior with juveniles beyond a reasonable doubt, including that the lewd or lascivious text messages received by M.P. were sent by Defendant. It notes that immediately after his arrest, investigators seized Defendant's cellphone from his house and Ms. Long identified it as his. It asserts that both Ms. Long and Defendant provided the number for ...


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