State of Louisiana v. Terry Lee Yetman

• Court: Louisiana Court of Appeal
• Decided: January 11, 2023
• Docket: 54,883-KA 54,884-KA 54,885-KA
• Status: Published

Opinion

Judgment rendered January 11, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,883-KA No. 54,884-KA No. 54,885-KA (Consolidated Cases)

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

TERRY LEE YETMAN Appellant

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court Nos. 230,186; 230,186A; and 231,816

Honorable Michael O. Craig, Judge

CARMOUCHE, BOKENFOHR, BUCKLE Counsel for Appellant & DAY, PLLC By: Paul J. Carmouche

J. SCHUYLER MARVIN Counsel for Appellee District Attorney

RICHARD RUSSELL RAY ALEXANDRA AIELLO Assistant District Attorneys *****

Before PITMAN, STEPHENS, and MARCOTTE, JJ. MARCOTTE, J.

These consolidated appeals arise from the 26th Judicial District Court,

Parish of Bossier, the Honorable Michael O. Craig presiding. Defendant,

Terry Lee Yetman, pled guilty to five counts of sexual abuse of an animal by

engaging in sexual contact, in violation of La. R.S. 14:89.3(A)(1), and one

count of possession of pornography involving juveniles, in violation of La.

R.S. 14:81.1. Yetman was sentenced to four years at hard labor for each

count of sexual abuse of an animal by engaging in sexual contact, to be

served consecutively. Yetman was sentenced to 20 years at hard labor, with

five years to be served without benefits, for his offense of possession of

pornography involving juveniles. His sentences for sexual abuse of an

animal and his sentence for possession of pornography involving juveniles

were ordered to run concurrently. Yetman appeals his sentences as

excessive. For the following reasons, we affirm Yetman’s convictions and

sentences.

FACTS

On February 13, 2019, Yetman was charged by bill of information

with 20 counts of sexual abuse of an animal by engaging in sexual contact,

in violation of La. R.S. 14:89.3(A)(1), in trial court docket number 230,186.

On the same day, Yetman was also charged by bill of information with 20

counts of sexual abuse of an animal by filming, distributing, or possessing

pornographic images, in violation of La. R.S. 14:89.3(A)(7), in trial court

docket number 230,186A. Yetman’s offenses of sexual abuse of an animal

occurred on, about, or between September 1, 2018, and November 30, 2018.

On June 11, 2019, Yetman was charged by bill of information with 31

counts of possession of pornography involving juveniles, in violation of La. R.S. 14:81.1, in trial court docket number 231,816. Those offenses occurred

on or about October 1, 2017, through December 19, 2018. Yetman initially

pled not guilty to all charges.

On August 30, 2021, Yetman withdrew his not guilty pleas and pled

guilty to five counts of sexual abuse of an animal by engaging in sexual

contact and one count of possession of pornography involving juveniles.

Yetman was properly informed of the rights he was forgoing by pleading

guilty pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.

Ed. 2d 274 (1969). In providing the factual basis for Yetman’s guilty pleas

to the five counts of sexual abuse of an animal, the state said that on

September 16 and 19, 2018, October 17 and 29, 2018, and November 3,

2018, Yetman filmed five separate instances of sexual contact between

himself and a dog for the purposes of sexual arousal and/or gratification.

The state said that in each incident, Yetman recorded a dog licking his

genitals. The videos were recovered from an Apple iCloud account

registered to Yetman.

In providing the factual basis for Yetman’s guilty plea to one count of

possession of pornography involving juveniles, the state said that he

knowingly and intentionally possessed a photograph depicting a male child

under the age of 17 years old engage in a sexual performance, specifically

masturbation. The photograph was also recovered from Yetman’s iCloud

account. Yetman affirmed that the factual bases for each of his offenses was

correct. Yetman was advised that he was required to register as a sex

offender for his juvenile pornography conviction, and his signed, written

notice of same appears in the record. Yetman then individually pled guilty

to the six offenses, and the trial court accepted his pleas. Yetman’s 2 remaining counts were dismissed. The trial court ordered that a

presentencing investigation report (“PSI”) be prepared.

On November 23, 2021, a sentencing hearing was held. The trial

court stated that it considered Yetman’s PSI, Yetman’s sentencing

memorandum, a report from Dr. Shelley Visconte (“Dr. Visconte”), a

psychologist who examined Yetman, and the factors enumerated in La. C.

Cr. P. art. 894.1. The trial court noted that Yetman served in law

enforcement for several years and that his criminal history consisted of only

the instant offenses. The trial court noted that Yetman received a benefit as

a result of his plea agreement in that he was able to reduce his sentencing

exposure by having several counts dismissed. The trial court observed that

the videos displaying Yetman’s offenses of sexual abuse of an animal were

particularly disturbing.

The trial court stated that a lesser sentence would deprecate the

seriousness of Yetman’s crimes and that his offenses “shock the senses …

[of] what a reasonable person would consider as normal behavior.” The trial

court stated that Yetman was a police officer at the time the offenses

occurred, and he had worked in the past as a K9 officer, which added to the

shocking nature of his offenses. The trial court stated that sexual behavior

that involves children and animals is particularly difficult to treat. The trial

court initially stated that the dog Yetman sexually abused was a canine used

by the police department, but Yetman clarified that the dog in question was a

family pet.

Defense counsel, Paul Carmouche (“Atty. Carmouche”), then argued

that Dr. Visconte evaluated Yetman on four separate occasions and found

that he was among those least likely to reoffend after he serves his sentence. 3 Atty. Carmouche stated that Yetman cooperated with law enforcement, and

that as a former police officer, he is in danger in jail. The state argued that

each count of sexual abuse of an animal to which Yetman pled guilty was a

separate instance of abuse.

The trial court then sentenced Yetman to four years at hard labor for

each of the five counts of sexual abuse of an animal by engaging in sexual

contact. Those sentences are to run consecutively for a total of 20 years.

The trial court sentenced Yetman for the offense of possession of

pornography involving juveniles to 20 years at hard labor, with the first five

years to be served without benefits. The trial court ordered that Yetman’s

sentences for sexual abuse of an animal and his sentence for possession of

pornography involving juveniles run concurrently. The trial court gave

Yetman credit for time served. The trial court noted Yetman’s objection to

his sentences.

On December 13, 2021, Yetman filed a motion to reconsider sentence,

arguing his sentences are excessive. On December 14, 2021, the trial court

denied Yetman’s motion. Yetman now appeals.

DISCUSSION

In his sole assignment of error, Yetman claims his sentences are

excessive. Yetman argues that the trial court failed to properly and fully

consider the factors listed in La. C. Cr. P. art. 894.1 when it imposed an

excessive sentence. Yetman states that at the time of his sentencing, he was

a first-time offender and had worked in law enforcement for 16 years until

his arrest. Yetman contends that he fully cooperated with investigators and

he has been incarcerated since his arrest. Yetman reiterates that Dr.

Visconte found that he is a “very low risk for reoffending.” Yetman states 4 that the trial court focused solely on the disturbing nature of his crimes,

which he does not dispute. Yetman argues that the trial court erred in

finding that any lesser sentence would deprecate the seriousness of his

offenses.

Yetman argues that he received the maximum sentence for his

juvenile pornography charge and that he received sentences greater than

defendants with criminal records in other cases received, even though he had

no criminal record prior to committing his instant offenses. Yetman asks

that his sentences be vacated and his cases remanded for resentencing.

The state argues that Yetman’s sentences were left to the discretion of

the trial court, which had the benefit of a PSI, adequately considered the

guidelines set forth in La. C. Cr. P. art. 894.1, and sentenced Yetman to legal

sentences. The state contends that the trial court ordered that Yetman’s

sentences for sexual abuse of an animal and his sentence for possession of

pornography involving juveniles run concurrently, so his maximum term of

incarceration is 20 years, instead of 40. The state also asks this court to

consider that Yetman had numerous counts dismissed by pleading guilty to

the six instant offenses. The state argues that Yetman’s offenses were

serious in nature and shocking. The state seeks to have Yetman’s

convictions and sentences affirmed.

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The court shall

state for the record the considerations taken into account and the factual

basis therefor in imposing sentence. La. C. Cr. P. art. 894.1(C); State v.

Parker, 54,190 (La. App. 2 Cir. 3/9/22), 335 So. 3d 519. The trial judge is 5 not required to list every aggravating or mitigating circumstance so long as

the record reflects that he adequately considered the guidelines of the article.

State v. Smith, 433 So. 2d 688 (La. 1983); State v. Parker, supra; State v.

DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-

0959 (La. 5/1/17), 219 So. 3d 332.

The articulation of the factual basis for a sentence is the goal of La. C.

Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions.

Where the record clearly shows an adequate factual basis for the sentence

imposed, remand is unnecessary even where there has not been full

compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475

(La. 1982); State v. Parker, supra. The important elements which should be

considered are the defendant’s personal history (age, family ties, marital

status, health, employment record), prior criminal record, seriousness of the

offense, and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049

(La. 1981); State v. Parker, supra. The trial court is not required to assign

any particular weight to any specific matters at sentencing. Id.; State v.

Parfait, 52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d 455, writ denied, 19-

01659 (La. 12/10/19), 285 So. 3d 489.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the seriousness of the offense or nothing more

than a purposeless and needless infliction of pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980). A sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; 6 State v. Parker, supra; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18),

246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.

The trial court has wide discretion to impose a sentence within the

statutory limits, and the sentence imposed will not be set aside as excessive

absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So. 2d 7. A trial judge is in the best position to consider the

aggravating and mitigating circumstances of a particular case, and, therefore,

is given broad discretion in sentencing. State v. Parker, supra. On review,

an appellate court does not determine whether another sentence may have

been more appropriate, but whether the trial court abused its discretion. Id.;

State v. Adams, 53,055 (La. App. 2 Cir. 11/20/19), 285 So. 3d 526, writ

denied, 20-00056 (La. 9/8/20), 301 So. 3d 15.

A defendant’s receipt of a substantial advantage via plea bargain is an

appropriate consideration in sentencing. Accordingly, where the defendant

has pled guilty to an offense which does not adequately describe his conduct

or has received a significant reduction in sentencing exposure through a plea

bargain, the trial court has great discretion in imposing even the maximum

sentence for the pled offense. State v. Ward, 53,969 (La. App. 2 Cir.

6/30/21), 324 So. 3d 231; State v. Washington, 52,518 (La. App. 2 Cir.

2/27/19), 266 So. 3d 430, writ denied, 19-00776 (La. 10/21/19), 280 So. 3d

1174.

On the dates of the offenses for Yetman’s convictions for sexual

abuse of an animal by engaging in sexual contact, La. R.S. 14:89.3(D)(1)(a)

provided, “[W]hoever commits the offense of sexual abuse of an animal

shall be fined not more than two thousand dollars, imprisoned, with or

without hard labor, for not more than five years, or both.” 7 On the date of the offense for Yetman’s conviction for possession of

pornography involving juveniles, La. R.S. 14:81.1(E)(1)(a) provided,

“Whoever intentionally possesses pornography involving juveniles shall be

fined not more than fifty thousand dollars and shall be imprisoned at hard

labor for not less than five years or more than twenty years, without benefit

of parole, probation, or suspension of sentence.”

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 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.

In sentencing Yetman, the trial court stated that it considered the

information found in his PSI, his presentencing memorandum, Dr.

Visconte’s report, and the factors enumerated in La. C. Cr. P. art. 894.1.

The trial court also mentioned and contemplated Yetman’s work and

criminal history. The trial court specifically discussed the significance of

Yetman’s crimes and that a lesser sentence would deprecate the seriousness

of those crimes. Yetman’s sentences fall within the legal statutory range for

each offense, and it was also within the trial court’s discretion to order that

some or all of Yetman’s sentences run consecutively.

Yetman’s PSI states that he said during the course of the investigation

of his crimes that, when he was a police officer, he was “adamant” about not

having sexual desires for children. However, Yetman possessed many

8 images of pornography involving juveniles, and his online interactions

reveal significant interest in performing sexual acts with minors and animals.

Yetman’s offenses are shocking and disturbing and are deserving of

substantial punishment. As the trial court did, this court finds the fact that

Yetman was a police officer when he committed his crimes especially

troubling. Yetman also received a substantial benefit in pleading guilty by

having 65 counts dismissed. We find that the trial court did not abuse its

discretion in sentencing Yetman.

Errors Patent

This court conducted a review for errors patent and several were

found. First, La. R.S. 14:81.1 imposes a mandatory fine of not more than

$50,000 for the offense of possession of pornography involving juveniles.

Yetman was sentenced to 20 years’ imprisonment without imposition of a

fine. Since he was sentenced without a fine, it could be asserted that the

sentence was illegally lenient. State v. Martinez, 52,882 (La. App. 2 Cir.

8/14/19), 278 So. 3d 467; State v. Williams, 49,249 (La. App. 2 Cir.

10/1/14), 149 So. 3d 462, writ denied, 14-2130 (La. 5/22/15), 173 So. 3d

1167. Pursuant to La. C. Cr. P. art. 882(A), an illegal sentence may be

corrected at any time by the court that imposed the sentence or by an

appellate court on review. However, as this court has recognized, this court

is not required to take such action. See State v. Martinez, supra; State v.

Williams, supra; State v. Jones, 42,531 (La. App. 2 Cir. 11/7/07), 968 So. 2d

1247. The state did not object to the error, and Yetman was not prejudiced

because of the omission.

Further, as provided in State v. Turner, 46,683 (La. App. 2 Cir.

12/14/11), 82 So. 3d 449, writ denied, 12-0165 (La. 6/22/12), 91 So. 3d 965, 9 when a trial judge fails to impose certain mandatory fines where the statute

authorizes a fine of “not more than” an amount, it impliedly imposes a fine

of $0 and is not error patent. We decline to remand on this issue.

Second, La. R.S. 14:81.1 requires that a person convicted of

possession of pornography involving juveniles shall serve his entire term of

imprisonment without benefits. The trial court stated that Yetman must only

serve the first five years of his sentence for his juvenile pornography offense

without benefits. When a trial court fails to apply the correct restriction of

benefits, and there is no discretion regarding the restriction of benefits, the

error is harmless and self-correcting, and the sentence will be automatically

served without benefits for the requisite time period. La. R.S. 15:301.1(A).

Third, La. C. Cr. P. art. 930.8(C) requires that the trial court inform

the defendant of the limitations period for filing an application for post-

conviction relief at sentencing. If a trial court fails to properly advise the

defendant of the time period limitations for filing, the appellate court may

correct this error by informing the defendant of the applicable prescriptive

period for post-conviction relief by means of its opinion.

The trial court here failed to inform Yetman that he has two years

from the date that his sentence was final to seek post-conviction relief. By

way of this opinion, this court hereby advises defendant that no application

for post-conviction relief shall be considered if it is filed more than two

years after his judgment of conviction and sentence has become final under

the provisions of La. C. Cr. P. arts. 914 or 922.

10 CONCLUSION

For the foregoing reasons, Yetman’s convictions and sentences are

affirmed.