Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 04-13-2018

Case Style:

State of Louisiana v. Terry Matthew Pittman

Case Number: 51,602-KA

Judge: Michael Pitman

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E. STEWART, SR.
District Attorney

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

Defendant's Attorney: Christopher Hatch

Description: 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
2

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

1 To protect the privacy of the victim, she will be referred to by her initials, pursuant to La. R.S. 46:1844(W).
3

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
4

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
5

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.
6

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

2 Brian McCreary, his mother and M.P.’s mother all testified at trial and corroborated this statement made by M.P.
7

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
8

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
9

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 Defendant’s cellphone, which
matched the phone number that sent the sexually explicit text messages to
M.P.’s cellphone.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,
603 So. 2d 731 (La. 1992). See also La. C. Cr. P. art. 821. This standard
does not provide an appellate court with a vehicle for substituting its
appreciation of the evidence for that of the fact finder. State v. Pigford,
05-0477 (La. 2/22/06), 922 So. 2d 517; State v. Robertson, 96-1048 (La.
10/4/96), 680 So. 2d 1165.
10

In the absence of internal contradiction or irreconcilable conflict with
physical evidence, the testimony of one witness—if believed by the trier of
fact—is sufficient support for a requisite factual conclusion. State v.
Watson, 32,203 (La. App. 2 Cir. 8/18/99), 743 So. 2d 239, writ denied,
99-3014 (La. 3/31/00), 759 So. 2d 69. Such testimony alone is sufficient
even where the state does not introduce medical, scientific or physical
evidence to prove the commission of the offense by the defendant. Id. This
is equally applicable to the testimony of a sexual assault victim. Id.
The trier of fact makes credibility determinations and may accept or
reject the testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00),
775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d
62 (2000). A reviewing court may not impinge on the fact finder’s
discretion unless it is necessary to guarantee the fundamental due process of
law. Id. The appellate court does not assess credibility or reweigh the
evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. A
reviewing court accords great deference to a jury’s decision to accept or
reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118
(La. App. 2 Cir. 8/30/02), 827 So. 2d 508.
La. R.S. 14:81 provides, in pertinent part, that:
A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: *** (2) The transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

11

Defendant does not challenge that a series of sexually explicit text
messages were retrieved from M.P.’s cellphone, but asserts that the state
failed to prove that he was the person who sent the messages. The sexually
explicit text messages retrieved from M.P.’s cellphone were sent from the
phone number 318-230-0201, a number that was assigned to “Dad” in her
contacts. A printout of these text messages was introduced at trial as State
Exhibit C, and Sgt. Moore read several of the messages to the jury. He
testified that after he arrested Defendant, he seized a cellphone from his
house, which Ms. Long identified as Defendant’s. Ms. Long told
Sgt. Moore that Defendant’s cellphone number was 318-230-0201, but that
she did not know his passcode. Following his arrest, Defendant provided
Sgt. Moore with personal information, including his name, social security
number and phone number. Defendant also stated that his phone number
was 318-230-0201.
Viewing the evidence in the light most favorable to the prosecution, a
rational jury could have found that the state proved the essential elements of
indecent behavior with juveniles beyond a reasonable doubt. There was
sufficient circumstantial evidence for the jury to conclude that Defendant
was the person exchanging sexually explicit text messages with M.P.
Accordingly, this assignment of error lacks merit.
Insufficient Evidence – Molestation of a Juvenile
Defendant argues that the evidence adduced at trial is insufficient to
support his conviction of molestation of a juvenile. He contends that the
state did not prove that he used force, threats, intimidation or use of
influence by virtue of having a position of supervision or control over M.P.
12

He contends that holding the position of supervision or control over M.P. is
not sufficient to satisfy the element of force or influence, but that he must
have used his influence over her to force her into participating in these acts
against her will. He asserts that there was no testimony at trial to support a
conclusion that he used influence over M.P., as she did not testify that she
was afraid of the consequences of prohibiting him from committing the
sexual acts or that he used his authority over her to accomplish the sexual
acts. He states that M.P. never testified that he physically forced her to
engage in sexual acts or exerted influence over her in such a way that her
will to resist was overcome. He also questions the testimonies of Ms. Long
and Mr. McCreary and contends that the state used conflicting statements
and testimony in order to obtain the conviction. He requests that his
conviction be reversed or that, in the alternative, his conviction be modified
to a conviction for the responsive offense of indecent behavior with
juveniles.
The state argues that the record demonstrates that Defendant used his
influence by virtue of his position of control or supervision over M.P. as her
father to perpetrate the offense of molestation of a juvenile. It notes that
M.P. lived with Defendant every other week during the years he committed
the molestation and other crimes; that M.P. was dependent on Defendant for
transportation to and from his house, thus preventing her from leaving at
will; and that M.P. witnessed Defendant’s acts of intimidation and violence
toward Ms. Long after Ms. Long observed Defendant molesting M.P.
La. R.S. 14:81.2(A)(1) provides:
Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen,
13

where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, 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 over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Louisiana courts consider the following factors when making a
determination as to whether a defendant used influence by virtue of his
position of supervision or control over the victim: (1) the amount of time the
defendant spent alone with the victim; (2) the nature of the relationship
between the victim and the defendant; (3) the defendant’s age; and (4) the
defendant’s authority to discipline. State v. Dale, 50,195 (La. App. 2 Cir.
11/18/15), 180 So. 3d 528, writ denied, 15-2291 (La. 4/4/16), 190 So. 3d
1203, citing Burton v. Cain, No. CIV.A. 11-1781, 2012 WL 5966532 (E.D.
La. Aug. 21, 2012), report and recommendation approved, No. CIV.A.
11-1781, 2012 WL 5960197 (E.D. La. Nov. 28, 2012).
Although Defendant asserts that the evidence was insufficient to
prove that he used influence by virtue of a position of control or supervision
over M.P. in order to commit the alleged acts of molestation, the application
of the above factors demonstrates that the evidence sufficiently supports this
element of the offense. Defendant is the biological father of M.P. When the
molestation began in 2010, M.P., born April 28, 1999, was 10 years old and
Defendant, born April 13, 1981, was 29; when the molestation ended in
2014, M.P. was 14 and Defendant was 33. At times during her childhood,
M.P. lived with Defendant full-time. During the years of molestation, M.P.
alternated weeks living at her father’s house and living at her mother’s
house. As M.P.’s biological parent with whom she lived regularly,
Defendant had the authority to discipline M.P. M.P. testified that it was
14

during the weeks she was obligated to spend at her father’s house that the
molestation occurred and that she was “lucky to leave his house after that
week without having to have sex with him.” She stated that her father would
drive her to and from his house and that they would often have sexual
intercourse in his truck.
Although Defendant argues that M.P. did not testify that he threatened
her or forced her to engage in sexual conduct, M.P. did testify that
Defendant told her not to tell anyone about their sexual activity because if
she did, he would be taken away and his children would grow up without a
father. M.P. also testified that after Ms. Long observed her and Defendant in
the laundry room, she witnessed Defendant threaten Ms. Long and that
“[t]hings were thrown.”
Viewing the evidence in the light most favorable to the prosecution, a
rational jury could have found that the state proved the essential elements of
molestation of a juvenile beyond a reasonable doubt. The testimony of M.P.
alone is sufficient to support this conviction.
Accordingly, this assignment of error lacks merit.
Insufficient Evidence – Pornography Involving Juveniles
Defendant argues that the evidence adduced at trial is insufficient to
support his conviction of pornography involving juveniles. He asserts that
the state failed to prove that he ever possessed the flash drive that contained
child pornography or that he viewed the videos on the flash drive, including
the video that M.P. testified to making for him.
La. R.S. 14:81.1(A)(1) provides that “[i]t shall be unlawful for a
person to produce, promote, advertise, distribute, possess, or possess with
the intent to distribute pornography involving juveniles.”
15

M.P. testified that, at Defendant’s request, she made a video of herself
masturbating. She observed Defendant download the pornographic video of
her from her laptop onto a red and black SanDisk flash drive and then put
that flash drive into his pocket. She stated that she knew Defendant viewed
the video because he discussed details of it with her, including that she said
“Dad” a lot. At trial, M.P. identified the video as State Exhibit A-1 and the
flash drive as State Exhibit B. The testimony of M.P. alone is sufficient to
support the conviction of pornography involving juveniles. The jury clearly
chose to accept M.P.’s testimony that Defendant possessed the red and black
SanDisk flash drive that was admitted as State Exhibit B and that contained
the video admitted as State Exhibit A-1.
Sgt. Moore testified that he retrieved a red and black SanDisk flash
drive from Defendant’s house and identified it as State Exhibit B. He
viewed its contents and testified that one of the videos was of M.P.
masturbating in the bathtub with a shampoo bottle. He noted that the flash
drive contained at least 15 deleted files of child pornography. He stated that
this flash drive also contained deleted files with Defendant’s personal
information, including a driver’s license photograph and a W-9 form.
Det. Marshall corroborated this testimony about the seizure of the flash drive
and that it contained 10 to 15 videos of child pornography, including a video
of M.P. masturbating in a bathtub.
Based on this evidence, a rational jury could conclude that Defendant
possessed and viewed the pornographic video of M.P. that was located on
the red and black SanDisk flash drive. Viewing the evidence in the light
most favorable to the prosecution, a rational jury could have found that the
16

state proved the essential elements of pornography involving juveniles
beyond a reasonable doubt.
Accordingly, this assignment of error lacks merit.
La. C.E. art. 412 Evidence
Defendant argues that the trial court erred when it prohibited him
from eliciting testimony regarding matters outside the scope of La. C.E.
art. 412. He admits that the La. C.E. art. 412 notice was deficient on its face
and untimely filed, but notes that it was considered on the merits by the trial
court. He asserts that at several points during the trial, defense counsel
attempted to cross-examine witnesses about M.P.’s relationship with
Mr. McCreary, his feelings about that relationship and an alleged
confrontation between him and Mr. McCreary, but the trial court
consistently ruled that any evidence about the relationship was inadmissible
pursuant to La. C.E. art. 412. He argues that these rulings prevented him
from presenting the only defense theory that could have viably been pursued
at trial, i.e., that M.P. fabricated or exaggerated the allegations against him
in order to protect her relationship with Mr. McCreary or to prevent him
from obstructing that relationship. He contends that even if the trial court
correctly ruled that the evidence was inadmissible, the scope of the trial
court’s rulings exceeded the scope of the protections contained in La. C.E.
art. 412.
The state argues that Defendant’s right to present a defense must be
balanced against M.P.’s interest under La. C.E. art. 412 to protect her sexual
history from becoming public. It asserts that the trial court did not err in
excluding evidence of M.P.’s sexual history; but, had it erred in excluding
17

this evidence, the error would be harmless given the overwhelming evidence
against Defendant.
The Sixth Amendment to the United States Constitution guarantees
the right of an accused in a criminal prosecution “to be confronted with the
witnesses against him.” This right is secured for defendants in state as well
as federal criminal proceedings. State v. Authier, 46,903 (La. App. 2 Cir.
4/25/12), 92 So. 3d 494, writ denied, 12-1138 (La. 11/2/12), 99 So. 3d 662,
citing Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923
(1965), and State v. Vaughn, 448 So. 2d 1260 (La. 1983). The confrontation
clause of the Louisiana Constitution directly affords each accused the right
“to confront and cross-examine the witnesses against him[.]” La. Const.
art. I, § 16.
Generally, a defendant may attack the credibility of a witness by
examining him or her concerning any matter having a reasonable tendency
to disprove the truthfulness of his or her testimony. La. C.E. art. 607(C).
However, the right of an accused sex offender to present a defense must be
balanced against the victim’s interests under La. C.E. art. 412, which is
intended to protect a victim of a sexual assault from having his or her sexual
history made public. State v. Authier, supra, citing State v. Everidge,
96-2665 (La. 12/2/97), 702 So. 2d 680. The purpose of the rape shield law
is to “protect victims of rape from being exposed at trial to harassing or
irrelevant questions concerning their past sexual behavior.” State v.
Williams, 05-1560 (La. 4/24/06), 927 So. 2d 266, quoting Michigan v.
Lucas, 500 U.S. 145, 111 S. Ct. 1743, 114 L. Ed. 2d 205 (1991).


18

La. C.E. art. 412(A) provides:
A.(1) Opinion and reputation evidence; sexual assault cases. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible. (2) Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim’s past sexual behavior is also not admissible except for:

(a) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or

(b) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.

Thus, in a prosecution for sexually assaultive behavior, La. C.E. art. 412
prohibits the introduction of evidence of the victim’s past sexual behavior,
with certain limited exceptions. State v. Authier, supra.
The trial court did not err in excluding evidence of M.P.’s past sexual
behavior, specifically of her alleged sexual relationship with Mr. McCreary.
This evidence is not relevant to a determination of whether Defendant
committed the offenses of indecent behavior with juveniles, molestation of a
juvenile or pornography involving juveniles. Evidence of M.P.’s alleged
sexual relationship with Mr. McCreary is not an exception to La. C.E.
art 412(A)(1) as set forth in La. C.E. art. 412(A)(2).
Accordingly, this assignment of error lacks merit.

19

Excessive Sentences
Defendant argues that this matter should be remanded for
resentencing because his sentences are excessive. He contends that the trial
court insufficiently justified his consecutive sentences and that the sentences
imposed are unconstitutionally excessive in light of the facts and
circumstances of this case. He asserts that the sentences imposed amount to
a life sentence and are grossly out of proportion to the gravity of the
offenses. He contends that he is not among the most egregious offenders
because this case does not involve multiple victims, severe acts of
molestation, physical damage to a juvenile or the use of force or physical
threats of harm to the juvenile. He asserts that the trial court did not give
any meaningful consideration to his expressions of remorse, lack of
significant criminal history or potential for rehabilitation.
The state argues that the record justifies the imposition of consecutive
sentences. It also notes the egregiousness of Defendant’s actions and
contends that the sentences imposed do not shock the sense of justice.
When reviewing an excessive sentence claim, the appellate court uses
a two-prong test. First, the record must demonstrate that the trial court
complied with La. C. Cr. P. art. 894.1. The trial court is not required to list
every aggravating and mitigating circumstance, but the record must reflect
that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State
v. Smith, 433 So. 2d 688 (La. 1983). The trial court should consider the
defendant’s personal history and prior criminal record, the seriousness of the
offense, the likelihood that the defendant will commit another crime and the
defendant’s potential for rehabilitation. State v. Jones, 398 So. 2d 1049 (La.
1981). The trial judge is not limited to a consideration of the defendant’s
20

prior convictions, but may properly review all of his prior criminal activity.
State v. Russell, 40,526 (La. App. 2 Cir. 1/27/05), 920 So. 2d 866, writ
denied, 06-0478 (La. 9/29/06), 937 So. 2d 851. The trial court is not
required to assign any particular weight to any specific matters at
sentencing. State v. Quiambao, 36,587 (La. App. 2 Cir. 12/11/02),
833 So. 2d 1103, writ denied, 03-0477 (La. 5/16/03), 843 So. 2d 1130.
Second, the appellate court must determine if the sentence is
constitutionally excessive. A sentence is excessive and violates La. Const.
art. I, § 20, if it is grossly out of proportion to the severity of the crime or is
nothing more than the purposeless and needless imposition of pain and
suffering. State v. Bonanno, 384 So. 2d 355 (La. 1980). A sentence is
grossly disproportionate if, when the crime and punishment are considered
in light of the harm done to society, it shocks the sense of justice. Id.
A trial court has wide discretion in imposing a sentence within the statutory
limits, and a sentence should not be set aside absent a showing of abuse of
discretion. State v. Square, 433 So. 2d 104 (La. 1983); State v. Black,
28,100 (La. App. 2 Cir. 2/28/96), 669 So. 2d 667, writ denied, 96-0836 (La.
9/20/96), 679 So. 2d 430. On review, an appellate court does not determine
whether another sentence may have been more appropriate, but whether the
trial court abused its discretion. State v. Williams, 03-3514 (La. 12/13/04),
893 So. 2d 7; State v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
Regarding concurrent and consecutive sentences, La. C. Cr. P. art 883
provides:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall
21

be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single cause of conduct are not
mandatory, and it is within a trial court’s discretion to order sentences to run
consecutively rather than concurrently. State v. Boudreaux, 41,660 (La.
App. 2 Cir. 12/13/06), 945 So. 2d 898, writ denied, 07-0058 (La. 11/2/07),
966 So. 2d 591. A judgment directing that sentences arising from a single
course of conduct be served consecutively requires particular justification
from the evidence or record. Id. When consecutive sentences are imposed,
the court shall state the factors considered and its reasons for the consecutive
terms. Id. Among the factors to be considered are the defendant’s criminal
history, the gravity or dangerousness of the offense, the viciousness of the
crimes, the harm done to the victims, whether the defendant constitutes an
unusual risk of danger to the public, the potential for defendant’s
rehabilitation and whether defendant has received a benefit from a plea
bargain. Id. The failure to articulate specific reasons for consecutive
sentences does not require remand if the record provides an adequate factual
basis to support consecutive sentences. Id.
Whoever commits the crime of indecent behavior with juveniles shall
be fined not more than $5,000, or imprisoned with or without hard labor for
not more than 7 years, or both. La. R.S. 14:81(H)(1).
Whoever commits the crime of molestation of a juvenile when the
victim is under the age of 13 years shall be imprisoned at hard labor for not
less than 25 years nor more than 99 years. At least 25 years of the sentence
22

imposed shall be served without benefit of probation, parole or suspension
of sentence. La. R.S. 14:81.2(D)(1).
Whoever intentionally possesses pornography involving juveniles
shall be fined not more than $50,000 and shall be imprisoned at hard labor
for not less than 5 years or more than 20 years, without benefit of parole,
probation or suspension of sentence. La. R.S. 14:81.1(E)(1)(a).
In the case sub judice, the trial court complied with the requirements
of La. C. Cr. P. art. 894.1 and considered aggravating and mitigating factors
prior to imposing Defendant’s sentences. It found that Defendant presented
an undue risk that he would commit another offense if he received a
suspended sentence or probation, that Defendant was in need of a
correctional or custodial environment and that lesser sentences than those
imposed would deprecate the seriousness of the offenses. It noted that
Defendant’s conduct during the offenses manifested deliberate cruelty
toward M.P., that he knew or should have known that M.P. was particularly
vulnerable due to her youth and that he used his position as her father to
facilitate the commission of the offenses. It further found that M.P. suffered
significant, permanent emotional injury as a result of the offenses. It also
noted that the evidence presented at trial showed that the abuse occurred
over a four-year period and that multiple incidents occurred, but were not
charged separately. The record demonstrates that the trial court complied
with La. C. Cr. P. art. 894.1, addressing the relevant aggravating factors and
determining that the mitigating factors outlined in the statute did not apply to
this case.
The sentences imposed by the trial court are not constitutionally
excessive, are within the statutory ranges and are not the maximum
23

sentences possible for each conviction. In this case, a father sexually abused
his biological daughter over a four-year period, beginning when the victim
was 10 years old. Defendant and the victim had vaginal, oral and anal
sexual intercourse; they had sexually explicit conversations by text message;
and Defendant influenced M.P. to film a pornographic video of herself for
his viewing. Considering these facts, the sentences imposed by the trial
court are not grossly out of proportion to the severity of the crimes and do
not shock the sense of justice. The trial court did not abuse its discretion in
imposing these sentences.
Furthermore, although the trial court did not specifically articulate the
reasons for imposing consecutive sentences in this case, it considered the
relevant factors during the sentencing hearing, and the record provides an
adequate factual basis to support consecutive sentences.
Accordingly, this assignment of error lacks merit.
ERRORS PATENT
Pornography Involving Juveniles Sentence
The trial court failed to impose the sentence for pornography
involving juveniles without the benefit of parole, probation or suspension of
sentence. La. R.S. 14:81.1(E)(1)(a) provides that the sentence be imposed
without the benefit of parole, probation or suspension of sentence. The
sentence is thus illegally lenient.
This is harmless error. La. R.S. 15:301.1(A) provides, in pertinent
part:
The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the
24

sentence be served without benefit of probation, parole, or suspension of sentence.

Accordingly, there is no need to remand for correction of the sentencing
error. When a trial court fails to order statutorily mandated service of
sentence without benefits, the sentence will automatically be served without
benefits for the required time period. See State v. Williams, 00-1725 (La.
11/28/01), 800 So. 2d 790.
This court orders that the entirety of the 15-year hard labor sentence
for the conviction of pornography involving juveniles be served without the
benefit of parole, probation or suspension of sentence. We further order that
the trial court minutes be amended to reflect this sentencing adjustment. See
State v. Shelton, 50,851 (La. App. 2 Cir. 9/28/16), 207 So. 3d 549.
Sex Offender Registration
The trial court failed to provide Defendant with written notice of the
sex offender registration requirements set forth in La. R.S. 15:540, et seq.
Indecent behavior with juveniles, molestation of a juvenile and pornography
involving juveniles are defined as sex offenses under La. R.S. 15:541. La
R.S. 15:543 requires that the trial court provide written notice to a defendant
convicted of a sex offense of the registration and notification requirements
and that an entry be made in the court minutes stating that the written
notification was provided to the defendant.
The record does not indicate that the trial court provided Defendant
with written notification of the sex offender requirements. Accordingly, this
court remands this matter to the trial court for the purpose of providing the
appropriate written notice to Defendant of the sex offender registration
requirements and for the filing of written proof of such notice into the record
25

of the proceedings. See State v. Wilson, 50,418 (La. App. 2 Cir. 4/6/16),
189 So. 3d 513, writ denied, 16-0793 (La. 4/13/17), 218 So. 3d 629.

Outcome: For the foregoing reasons, we affirm the convictions of Defendant
Terry Matthew Pittman. We affirm his sentences, with instructions for the
correction of the minutes. We remand this matter to the trial court for the
limited purpose of providing Defendant with the appropriate written notice
of the sex offender registration requirements.

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: