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State v. Thomas

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

STATE OF LOUISIANA
v.
DIRK DOUGLAS THOMAS AKA DIRK THOMAS

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 12-1039 HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE

          M. Bofill Duhe District Attorney - COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Chad M. Ikerd COUNSEL FOR: Defendant/Appellant - Dirk Douglas Thomas aka Dirk Thomas

          Dirk Thomas Pro Se Defendant/Appellant

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          ULYSSES GENE THIBODEAUX, CHIEF JUDGE.

         Defendant Dirk Douglas Thomas was charged with one count of sexual battery, and a jury unanimously found him guilty of the lesser included offense, attempted sexual battery, in violation of La.R.S. 14:27 and La.R.S. 14:43.1. He was sentenced to eighteen months imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. On appeal, Thomas asserts that the evidence was insufficient to support his conviction and challenges his sentence as unconstitutionally excessive.

         After concluding no non-frivolous issues exist upon which to base an appeal, appellate counsel has filed a brief requesting only a review for errors patent, and he now moves to withdraw from the appeal.

         For the following reasons, this court grants counsel's Motion to Withdraw and affirms Thomas's conviction and sentence.

         I.

         ISSUES

         We must decide:

(1) whether the record reveals on its face errors patent sufficient to reverse Thomas's conviction and sentence;
(2) whether the evidence introduced at trial, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard, was insufficient to support Thomas's conviction of attempted sexual battery in violation of La.R.S. 14:27 and La.R.S. 14:43.1;
(3) whether the sentence imposed by the trial court is excessive, in violation of the Eighth Amendment of the Constitution of the United States and La.Const. art. 1, § 20; and
(4) whether appellate counsel has thoroughly reviewed the record and correctly determined that no non-frivolous issues exist such that he may be permitted to withdraw from the appeal.

         II.

         FACTS AND PROCEDURAL HISTORY

         On April 5, 2012, Defendant Dirk Thomas's adult biological daughter, D.T., [1] contacted law enforcement alleging that Thomas had sexually assaulted her on the night of April 3, 2012. The State filed a bill of information charging Thomas with one count of sexual battery. Thomas waived formal arraignment on all charges and pled not guilty. After a trial on the merits, the jury unanimously found Thomas guilty of attempted sexual battery. The trial court sentenced Thomas to eighteen months imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

         At the time of trial, D.T. was twenty-eight years old. She was the first witness called to testify. On direct examination, D.T. testified that she and her father had an estranged relationship, visiting each other sporadically over the years, with both parties living in different parts of the country at different times. As she grew older, she sought to build a relationship with her father, and the two became close after she became pregnant with her son.

         Thomas owned and operated several properties in New Iberia, Louisiana. Because D.T. was unable to afford living on her own, Thomas offered to let her and her son live in his townhouse in New Iberia, and she agreed and stayed there until she joined the Army in 2008. In 2010, D.T. left the Army and returned to Louisiana. D.T. stated Thomas again offered to let her live in the New Iberia townhome and that Thomas additionally offered to let D.T. work for him in managing his properties, which she accepted. D.T. moved into townhome A with her son, who was four or five at the time, while Thomas lived in townhome B. She further stated that due to ongoing renovations, Thomas and whoever else was working would enter the townhome at any given time.

         D.T. testified that her relationship with her father was growing into both a friendship and a father-daughter relationship. They began talking and texting often, and D.T. found that she and Thomas had a lot in common. D.T. identified State's Exhibit Number 1 as a printout of the text messages between herself and Thomas. Thomas is listed in her contacts as "Dad Thomas." As discussed below, the trial court ruled the printout of the text messages to be inadmissible, but it allowed the introduction of State's Exhibit Number 2, a download of the information from D.T.'s cellular phone containing the same information.

         On the night of April 3, 2012, D.T. testified that she and Thomas went upstairs to watch a movie in her bedroom while her son was asleep in the next room. Thomas commented on her body, and then licked her buttocks, which D.T. laughed off at the time, and Thomas left the room afterwards. Thomas returned and then attempted to remove D.T.'s underwear. After repeatedly telling Thomas to stop, D.T. realized that Thomas was not joking and she fought to keep her underwear on. Thomas then pinned her down with his upper body while using his hand to remove her underwear, and proceeded to lick her genitalia several times. Thomas left around 1:00 a.m. when the movie was over, and D.T. tried to call her boyfriend. When her boyfriend did not answer, she testified that she just lay there and cried in disbelief at what her father had done to her.

         The next morning, D.T. called her mother to help her find a new place to live. When her mother asked why, D.T. initially told her that she noticed things around the townhouse that made her uncomfortable, like that her underwear had been rummaged through and only Thomas could have done so. While looking for apartments, D.T. eventually told her mother the details of the night before. As a result of the conversation with her mother, D.T. called the police station to ask if she could record conversations as evidence. After someone at the police station told her that she could, she began recording her conversations with Thomas. When D.T. believed she had obtained substantial recordings, she then sought out law enforcement.

         D.T. provided law enforcement with four separate recorded conversations, all of which the listener was able to identify Thomas as the person on the other end of the conversation. On direct examination, D.T. identified State's Exhibit Number 3 as copies of the recordings she had made. D.T. recognized the exhibit from her meeting with the prosecutor when D.T. verified both that she was on the recordings and that she had made the recordings, after which she signed and dated the exhibit. D.T. listened to the recordings and confirmed they were accurate. D.T. identified the speakers in the conversations as herself and Thomas. She further claimed that she made the recordings to support her claims because there was no physical evidence of the incident.

         On cross examination, D.T. was unsure of whether the incident occurred on April 2 or April 3, because four years had since passed. However, D.T. was able to confirm that a day or two before the incident, Thomas told her over lunch that D.T. would not be in his will as he preferred to leave his estate to his Caucasian stepchildren instead. She insisted that she was not angry, nor was there an argument over the will, but rather a general conversation. On redirect examination, D.T. elaborated that she was not upset because she did not expect to be in his will as the two had never had much of a relationship.

         D.T. confirmed Thomas was able to completely remove her underwear during the incident. She stated that she gave up both physically and emotionally, and eventually stopped struggling because she did not want to hurt him and just wanted him to stop. She did not recall telling the officer she stopped fighting. D.T. stopped fighting because it was ineffective anyway; it was not stopping him.

         D.T. testified that she continued living at the townhouse for about a week and a half after the incident until the time Thomas was served with the restraining order, which occurred a few days prior to his arrest. D.T. also continued to work for and communicate with Thomas in an attempt to gather evidence to prove her claim, as there was no other evidence. Having to communicate with Thomas bothered D.T. because Thomas acted as if everything was okay, and so she felt like she too had to act as if everything was okay when speaking to him.

         Defense counsel asked D.T. to explain some of her text message conversations with Thomas as represented in State's Exhibit Number 2, after suggesting that Thomas lived with D.T. and that they had a consensual sexual relationship. When defense counsel further suggested that D.T.'s conversations with Thomas were inappropriate, D.T. responded that she spoke to him in the same way that she spoke to her mother and sister. Defense counsel then inquired into the conversations she had with other family members concerning her various relationships, to which D.T. firmly responded she was only in one relationship at the time, and further that she was excited to introduce her boyfriend to her father as she had never introduced anyone to her father before. D.T. clarified she told her father about the various men who had "hit on" her, but she was only in a relationship with the one person.

         When the State asked D.T. about the text messages, D.T. recalled Thomas texting her a message that read, "I have seen you walk away. I can't handle you on my best day. You in stilettos, I'd just be a minute, man. LMAO." Another message from Thomas read, "Your father is a well-endowed man that hits really hard and lasts a very long time. In other words, I'm a cunt's worst nightmare." At the time, D.T. believed Thomas was joking with her in a sexual manner. At the time of trial, however, D.T. had come to realize the messages indicated Thomas did not see her as a daughter, but rather as a woman in a sexual fashion.

         Lisa Burgess, D.T.'s mother, testified that she and Thomas were never married, but that they dated and lived together for about three years. She also stated that Thomas had physical contact with D.T. maybe three times throughout D.T.'s adolescence, but that he financially supported D.T. from the ages of five to eighteen.

         Ms. Burgess recalled that on the morning of April 4, D.T. came to her house to talk, and she asked D.T. if anything was wrong because something seemed a little different. Initially, D.T. responded that nothing was wrong, but eventually told her mother that something bad had happened. Ms. Burgess again asked D.T. what was wrong when D.T. began shaking, crying, and hyperventilating. Ms. Burgess recalled the details of the incident as relayed to her by D.T., stating that Thomas had forced D.T.'s legs open and performed oral sex on her.

         Ms. Burgess testified that she then advised D.T. to call the police, but that D.T. was afraid initially. Ms. Burgess then suggested that D.T. stay at the townhouse for a few days to collect evidence, as Thomas would become aware that D.T. told her mother of the incident if she were to move in with Ms. Burgess, and "cut all ties" thereafter. Shortly after the incident, Ms. Burgess recalled that she noticed great changes in D.T., and that D.T. was not like herself. After a couple of months, however, D.T. would no longer speak of the incident with Ms. Burgess.

         Ms. Ashley Hammons testified at trial that she was employed by the Iberia Parish Sheriff's Office as a sergeant in detectives. She was able to record D.T.'s recordings using her work phone and transferred the files onto a compact disc. The court played the compact disc for the jury. The State then rested subject to rebuttal. State's Exhibit Number 3 contains four recordings labeled: 33271; 47209; 47210; and 47831.

         In 47209, D.T. explained that she was not good face-to-face and that she liked their relationship. D.T. asked "Daddy" to listen and asked him the reason why he, "you know." "Daddy" promised they would talk but not like "this." D.T. said she would like to go with him and continue to work for him. "Daddy" said there were several reasons for "what transpired," and one reason was that "you always say people make you do things you don't want to do."

         In 47210, "Daddy" talked about being a very strong-willed person. D.T. asked if it was because she did things she did not want to do. D.T. then asked if her "Daddy" wanted to have oral sex with her because he did not think she was his daughter. "Daddy" asked what she was talking about and said he was lost. When D.T. repeated the sentiment that she thought the reason he did it was because he did not think she was his daughter, "Daddy" said they would talk about it later. D.T. explained that she liked their relationship and that she did not want him to look at her as if she was not his daughter. "Daddy" said for D.T. to take her son on his field trip and that they would talk when he got back.

         In 47831, a male voice answered D.T.'s call and stated, "Dirk speaking." D.T. expressed that the two had "never really talked about anything," to which "Dirk" responded that they would talk about it when D.T. settled down. The following exchange occurred:

Female voice: "No, okay, see, I can never settle down because it's always on my mind. I feel like you never even apologized for it. Like . . ."
Male voice: "Listen, listen, I don't like talking over the phone. What happened, it happened in person. We gonna talk about it in person."
Female voice: "All right."
Male voice: "Okay? Girl, don't, don't think about it. It was a test. I had to test you. I had to test you."
Female voice: "You had to test me by going to the extremities of taking off my underwear and doing all of that? Daddy, are you serious?"
Male voice: "I'm serious. You have to go to the extreme with you because (inaudible) you don't know you like I know you. I found out, I found out more about you, now, than I ever did."
Female voice: "Okay, but even, even if so, like, why would I let my Daddy do that to me. Like, okay, why wouldn't I be, like, okay, really?"
Male voice: Hold up, hold up, hold up. I'm not going to discuss it over the phone.
Female voice: "All right, all right. Bye, Daddy."

         The first witness called by the defense was Robert Hamilton, D.T.'s cousin and Thomas's nephew. Mr. Hamilton was present at the lunch meeting at which Thomas informed D.T. that she would not be in his will. Mr. Hamilton testified that the conversation was more like an argument, and that D.T. was loud, mad, and appeared upset about the situation. On cross-examination, Mr. Hamilton testified that he had previously worked for Thomas for two and a half years. Mr. Hamilton also testified that he had never seen any sexual assault occurring between D.T. and Thomas.

         The second witness called by the defense was Felicia Thomas, Thomas's sister. She testified that prior to the incident, Thomas was living in Ann Arbor, Michigan. Ms. Thomas then stated that Thomas occupied the same townhouse as D.T. and her son, and that the other townhouse only contained tools and equipment for work. Ms. Thomas also testified that she had a good relationship with D.T. prior to the incident.

         Thomas then testified on his own behalf, and maintained that D.T.'s story was a complete fabrication. He testified that on the evening of the incident, he watched D.T.'s son while she went out with her boyfriend. D.T. brought home some movies and brought them upstairs. When Thomas went upstairs to get the movies, D.T. was already watching one and said she wanted to watch the movies upstairs. Thomas initially sat on the bed to watch the movie but was uncomfortable because D.T. was wearing undergarments and a short robe while she laid on the bed. Thomas went downstairs, and D.T. followed to ask him what was wrong. Thomas replied there was nothing wrong and followed D.T. back upstairs, where he sat on the floor to finish watching the movie.

         Thomas testified that in the days following the alleged incident, his relationship with D.T. was fine, and they discussed business as usual. Thomas gave D.T. a new cell phone, but she refused to use it because she had just gotten a new phone. Problems continued to arise when he required D.T. to have her phone adapted to his business and D.T. failed to comply.

         In explaining the phone conversations, Thomas believed that D.T.'s mother "had put her up to something." He stated that D.T.'s mother had great influence over her and often sought to undo the progress Thomas had made in his relationship with D.T. In the first conversation, Thomas said that he had no idea what was going on; he further alleged that D.T. was seeing someone once a month for her depression prior to the incident. In the third conversation, Thomas expressed that he was growing frustrated with their conversations, continuing to believe that D.T. and her mother were up to something. He testified that he did not hear D.T. when she mentioned him licking her. Thomas stated that when he said "what happened was between us," he was referring to the lunch conversation about the will. In reference to the statement, "it was a test," Thomas denied ever "exposing her physical person." Thomas continued that he was testing D.T. with multiple things; he first wanted to see D.T.'s reaction to not being in his will, but did not explain what the other tests were.

         On cross-examination, Thomas said he did not recall sending D.T. the following text message about tongue piercings:

Tongue piercings is [sic] one of the most popular piercings. It's shocking, provocative, and fantastic for oral sex for both sexes. But at the same time, no one needs to know you have it. Janet Jackson, Keith Flint from Prodigy, Mel B from Spice Girls, and Malcolm Jamal Warner from The Cosby Show all sport pierced tongues.

         Thomas further alleged the text message about him being "well endowed" was not directed at D.T., but rather was a joke between Thomas and D.T. arising from a situation in which one of Ms. Thomas's colleagues had approached him at Ms. Thomas's house. Thomas acknowledged sending the text about D.T. in stilettos, but complained that it was taken out of context. Thomas further claimed the text, "I want to give it twisted baby" was a typo, and he meant to send, "Don't get it twisted, baby" instead.

         Thomas denied ever commenting on or performing oral sex on D.T., further stating that he thought it was a nasty thing to do to another person. Thomas then volunteered, "Now, if she would have said I had intercourse with her, that would have been a different story." Thomas then gave an account of how D.T. had told him, in detail, about how her boyfriend had performed oral sex on her. Thomas next asserted he thought the comments about "the other night" and oral sex referred to him finding D.T. performing fellatio in the townhouse parking lot in March.

         III.

         ERRORS ...


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