State v. Dyas

309 So.3d 955

STATE of Louisiana, Appellee

v.Charles Ray DYAS, Jr. Appellant

No. 53,597-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered January 13, 2021

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

JAMES E. STEWART, SR., District Attorney, JASON WALTMAN, Shreveport, NANCY BERGER-SCHNEIDER, MALLORY RICHARD, Assistant District Attorneys, Counsel for Appellee

Before PITMAN, THOMPSON, and BLEICH (Pro Tempore), JJ.

THOMPSON, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, the Honorable Katherine Dorroh presiding. Following a trial, Charles Ray Dyas, Jr. was convicted by unanimous jury verdict of one count of sexual battery, victim under age 13, in violation of La. R.S. 14:43.1. Dyas received a sentence of 45 years at hard labor, with the first 25 years without benefit of parole, probation or suspension of sentence. Timely motions for post-verdict judgment of acquittal and new trial were denied. This appeal follows.

Dyas appeals his conviction, arguing that the evidence was insufficient to convict him, that the trial court abused its discretion by denying funding for an expert, that the trial court abused its discretion by ruling that proposed expert testimony was irrelevant, and that his constitutional rights were violated due to Brady violations. For the following reasons, Dyas’ conviction and sentence are affirmed.

FACTS

On March 18, 2014, the Shreveport Police Department sex crimes unit received a complaint that Charles Ray Dyas, Jr. had been sexually assaulting his two stepchildren, N.D. and D.D. Both alleged victims were juveniles under the age of 13 at the time of the alleged offenses. On March 20, 2014, interviews were arranged at the Gingerbread House children's advocacy center with the children and their mother, L.J. L.J., the defendant's wife, informed SPD Detective De'Andre Belle ("Det. Belle") that she and her family discovered the abuse by reading text message conversations between N.D. and her best friend, wherein N.D. confided to her friend that her stepfather had been sexually assaulting her for the past three years.

By the first bill of information, filed on May 20, 2014, Dyas was charged with two counts of aggravated incest under La. R.S. 14:78.1(A), (B)(2) & (D)(2). However, by amended bill of information, Dyas’ charges were subsequently changed to two counts of sexual battery of a victim under the age of 13 under La. R.S. 14:43.1(A)(1) & (C)(2).¹ At issue in the assignments of error raised by Dyas is the absence of proof of vaginal penetration of the alleged victims. Neither charge requires such penetration for conviction.

On April 22, 2019, jury trial commenced. The evidence included the testimony of numerous witnesses, including family members, law enforcement personnel, expert medical personnel, and the defendant, as follows:

The maternal grandmother of N.D. and D.D testified at trial. The grandmother testified that she did not approve of her daughter's and Dyas’ relationship from the start because they were cousins. She testified that N.D. and the other children lived with her during the week and stayed at their mother's residence on the weekends. She testified that N.D. seemed reluctant to return to her mother's house on the weekends and that she noticed N.D. staying in her room more and more, spending significant time on her Kindle Fire tablet, which was unusual for her. The grandmother told L.J. about this behavior, and L.J. discovered the text message conversation between N.D. and her best friend, L.B., regarding ongoing sexual abuse by Dyas. She testified that Dyas was never welcome in her home, even prior to the sexual abuse allegations.

L.J. testified that she is the mother of N.D. and D.D. and that she first dated Dyas when she was 15 and he was 17 or 18, against her mother's wishes. Dyas then moved to Virginia in 1999. They rekindled their relationship around 2006 upon his return to Shreveport. By that time, L.J. had given birth to N.D., D.D., and one other child from a previous relationship. L.J. and Dyas were married in 2010. L.J. testified that she worked the night shift at restaurants and that her children went back and forth between her mother's home and her home, staying with Dyas.

L.J. testified that on March 14, 2014, she went to her mother's house to pick up N.D. The grandmother told her that N.D. had been spending a lot of time on her Kindle. L.J. asked N.D. to give her the Kindle, and she accessed it through a passcode. Upon accessing the Kindle, text messages between N.D. and her best friend, L.B., appeared on the screen. L.J. read the text messages, and the nature of the conversation was that N.D. was being abused. L.J. questioned N.D., who was embarrassed and reluctant to talk. About ten minutes after discovering the text messages and speaking with N.D., L.J. called the police and requested that they respond to her and Dyas’ residence. L.J. testified that she accompanied her children to the Gingerbread House, and spoke with Det. Belle there. Afterwards, she took N.D. and D.D. to be examined by a doctor at the CARA Center.

On cross-examination, L.J. testified that she is still legally married to Dyas, because obtaining a divorce is expensive. She also admitted to writing him love letters in jail. L.J. confirmed her prior testimony from the preliminary examination hearing that she did not see any signs that her children were being abused by Dyas. She confirmed she was the person to involve the police based upon her concerns.

N.D. testified that she is now 17 years old and a senior in high school, but that she was about 8 years old when her mother first began dating Dyas. Dyas moved into their apartment on North Market Street in Shreveport when she was around 9 years old. N.D. went back and forth between her mother's residence and her grandparents’ residence. When Dyas first moved in with her family, she thought he was nice and saw him as a father figure.

N.D. further testified that the first time Dyas touched her was at the apartment on North Market Street while playing video games together. She stated that Dyas touched her "in my area." Only she and Dyas were in the home. N.D. stated "he touched my vagina outside my clothes." She stated that Dyas used his hands and tried to rub on her. Dyas did not touch N.D. again at the apartment on North Market Street. She testified that the second time Dyas touched her, she was 10 years old, and they had moved to a new residence on Youree Drive. That time, N.D. was again alone with Dyas at home. He came into the room where she slept and touched her over her clothes in her vaginal area. N.D. testified that she did not say anything to her mother about either of these instances because she was afraid and "didn't want to be a problem."

When N.D. turned 11, the family had moved to yet another address, on Timothy Circle. N.D. stated that she was going into the 6th grade and had started her menstrual cycle that summer. She testified it was at that time that everything escalated. Prior to the move to Timothy Circle, she spent much of her time at her grandparents’ home. N.D. testified that when she turned 12, she spent more time at her mother's residence on Timothy Circle. N.D. testified that Dyas would come into her bed and "put his hand under the cover and touch on me while I was laying down." N.D. testified that Dyas used his hands, and would touch her vaginal area, and his fingers would go inside her vagina. N.D. testified that she "can't even count" the number of times this occurred at the Timothy Circle location. She said it happened "pretty much every time I went over there." N.D. testified that he would try to take her hand or foot and rub it against him, on his penis. When asked why she did not tell anyone about what was happening with Dyas, N.D. testified that she was scared of what would happen if she told, and she did not want anyone to get hurt. N.D. testified that about a month prior to her family's becoming aware of the abuse, Dyas attempted to penetrate her with his penis. N.D. was in the bedroom when Dyas came into the room with her and pulled her shorts down, and Dyas pulled his penis out of his shorts.

From March 12 to 14, 2014, N.D. testified that she had her Kindle at her grandparents’ residence, she connected to the Wi-Fi and used a text messaging app to send text messages to her best friend, L.B. N.D. testified that her mother found the text messages between her and L.B. on the Kindle. N.D.'s mother asked her if the text messages about Dyas were true, and she told her mother yes.

Over two days, on cross-examination, defense counsel took N.D. through almost the entire text message conversation with L.B. (which included a significant amount of slang terms/spellings and some profanity). N.D. was questioned about the text messages she sent to L.B. saying that she had a secret to tell, and urging L.B. to never tell anyone her secret. N.D. read aloud many of the messages she had sent, telling her friend about the times that Dyas had inappropriately touched her. All of the text messages that N.D. read aloud revealed an emotional conversation between the two friends about the sexual assault allegations.

N.D. testified that every night she stayed at Timothy Circle, Dyas touched her with his hands. N.D. described the first and only time that Dyas attempted to penetrate her with his penis: "he tried to put his penis in me and it wouldn't go, and I was really – I really started moving a lot and fidgeting and stuff, and so he stopped." N.D. testified that when Dyas put his fingers inside of her, it was painful every time. N.D. testified that Dyas also attempted to perform oral sex on her.

L.B. testified at trial, confirming the authenticity of the text message conversation between her and N.D. from March 12-14, 2014. L.B. testified that she went to the Gingerbread House and had an interview about the conversation she had with N.D. She also produced her phone...