Terry v. Hooper ( 2023 )

Case: 21-30638 Document: 00516950972 Page: 1 Date Filed: 10/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 31, 2023
No. 21-30638 Lyle W. Cayce
____________ Clerk
Terry L. Terry,
Petitioner—Appellant,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:18-CV-812
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
In 2010, Terry L. Terry was convicted of three counts of juvenile mo-
lestation in violation of La. Rev. Stat. § 14:81.2. Presently before us is
Terry’s appeal of the denial of his § 2254 petition challenging those convic-
tions and his sentence—specifically, his claim on appeal that the evidence at
trial was legally insufficient for a conviction on the last count. Mindful of the
high threshold of deference for federal habeas proceedings and the corrobo-
rating evidence available at trial, we find that the state court was not objec-
tively unreasonable in rejecting Terry’s sufficiency challenge. Accordingly,
we AFFIRM.
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No. 21-30638
I.
Having been molested by Petitioner Terry L. Terry as children,
Terry’s two, now adult, daughters, A.L. and T.C., became concerned when
they learned in 2008 that Terry had remarried and now lived in the same
house with two young children. Afraid that Terry might repeat his behavior,
A.L. and T.C. contacted the Department of Children and Family Services
(DCFS), 1 but were told that DCFS could do nothing about the children in
Terry’s care unless they pressed charges. A.L. called the police to file a com-
plaint against Terry on June 16, 2008. It was discovered that Terry’s
nephew’s children were staying with him. In response to A.L.’s complaint
and in conjunction with law enforcement, DCFS scheduled interviews on
June 19, 2008, for the children with the Gingerbread House, a children’s ad-
vocacy nonprofit whose main purpose is to conduct forensic interviews of
children who are suspected of having been physically or sexually abused.
During her interview, the youngest of Terry’s nephew’s three chil-
dren, S.B., disclosed that she had been “squeezed” and “pinched” in the
butt and the vagina by “Terry Terry Terry.” S.B. also explained that the
touching occurred underneath her clothes, while she had gone to bed, and
that such touching occurred more than once. The next day, a brief follow-up
interview was conducted of S.B., during which the interviewer clarified
where the touching occurred. Terry was subsequently arrested.
The State of Louisiana charged Terry with three counts of juvenile
molestation: Count I alleged that Terry molested his daughter, A.L., during
1985 to 1994; Count II alleged that Terry molested his daughter, T.C., during
_____________________
1
In testimony, A.L. referred to DCFS instead as the Office of Child Services.
2
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1990 to 1994; and Count III, the subject of the instant appeal, alleged that
Terry molested his grandniece, S.B., in 2008.
At trial, the jury heard the Gingerbread House interviews, as well as
testimony from law enforcement, DCFS, the Gingerbread House employee
who had interviewed S.B., an expert witness who had examined S.B. and
found signs of sexual abuse, Terry’s daughters A.L. and T.C., S.B. herself,
as well as S.B.’s biological parents, Terry’s wife, and various other family
members. The jury convicted Terry on all three counts, and Terry was sen-
tenced to concurrent 15-year prison terms on the first two counts and a con-
current 50-year prison term on the last. These convictions and sentences
were affirmed on direct appeal by the Louisiana Second Circuit Court of Ap-
peal, and the Louisiana Supreme Court denied Terry’s writ application. State
v. Terry, 47,425 (La. App. 2d Cir. 2012); 108 So. 3d 126, writ denied, 2012-
2759 (La. 6/28/13), 118 So. 3d 1096.
Terry, proceeding pro se, sought post-conviction relief in state court
and advanced, inter alia, a claim that the evidence was insufficient to support
his conviction on Count III. The First Judicial District Court of Louisiana
dismissed Terry’s sufficiency-of-the-evidence claim as repetitive and ulti-
mately denied Terry’s petition as to all of his claims. The Louisiana Second
Circuit Court of Appeal and Louisiana Supreme Court both denied Terry’s
resulting petition for supervisory review.
In 2018, still proceeding pro se, Terry filed a § 2254 petition raising
several claims for relief—including, as relevant here, a claim that the trial ev-
idence was legally insufficient to convict him on Count III. The district court
adopted the magistrate judge’s recommendation in full, denying Terry’s
§ 2254 petition but granting a Certificate of Appealability as to the sufficiency
of the evidence on Count III. Terry timely appealed.
3
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Again proceeding pro se, Terry filed both an opening and reply brief in
the instant appeal. He was then appointed counsel on November 29, 2022,
and submitted a supplemental brief.
II.
Before turning to the evidence presented at trial, we begin by noting
the proper legal standards that guide our review. “In a habeas corpus appeal,
we review the district court’s findings of fact for clear error and its conclu-
sions of law de novo, applying the same standards to the state court’s decision
as did the district court.” Jenkins v. Hall, 910 F.3d 828, 832 (5th Cir. 2018)
(citation omitted).
“The Anti-Terrorism and Effective Death Penalty Act (‘AEDPA’)
governs a federal habeas court’s review of a state prisoner’s claims that were
adjudicated on the merits in state court.” Fields v. Thaler, 588 F.3d 270, 273
(5th Cir. 2009) (citing 28 U.S.C. § 2254(d)). AEDPA “imposes important
limitations on the power of federal courts to overturn the judgments of state
courts in criminal cases.” Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per cu-
riam). Indeed, under AEDPA, “federal courts cannot grant relief unless the
state adjudication resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,’” or it “‘re-
sulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’”
Reeder v. Vannoy, 978 F.3d 272, 276 (5th Cir. 2020) (quoting 28 U.S.C.
§ 2254(d)(1)-(2)). 2 In other words, “[t]o satisfy the standards of § 2254(d),
a state prisoner must show that the state court’s ruling on his claim ‘was so
_____________________
2
Notably, a state court’s determination of a factual issue must be presumed to be
correct unless the petitioner rebuts the presumption “by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
4
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lacking in justification that there was an error well understood and compre-
hended in existing law beyond any possibility for fairminded disagreement.’”
Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013) (quoting Harrington v. Rich-
ter, 562 U.S. 86, 103 (2011)).
This standard is intentionally “difficult to meet,” because it reflects
the view that habeas corpus does not serve as a “substitute for ordinary error
correction through appeal” but rather “guard[s] against extreme malfunc-
tions in the state criminal justice systems.” Harrington, 562 U.S. at 102-03
(citation omitted); see also Boyer v. Vannoy, 863 F.3d 428, 440-41 (5th Cir.
2017).
Here, Terry seeks postconviction habeas relief on sufficiency-of-the-
evidence grounds, which is governed by the standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). West v. Johnson, 92 F.3d 1385, 1393 (5th Cir.
1996). Per Jackson, it is not the reviewing court’s role to “ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable
doubt,” but to ask, instead, “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, 443
U.S. at 318-19 (internal quotations and citations omitted). Relief “[u]nder
section 2254 . . . ‘on a claim of insufficient evidence is appropriate only if it
is found that upon the record evidence adduced at trial no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.’” Ramirez v.
Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (quoting West, 92 F.3d at 1393).
“This familiar standard gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319. In reviewing the record, courts do not “reevaluate the weight
of the evidence or . . . the credibility of the witnesses,” United States v. Fields,
5
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977 F.3d 358, 363 (5th Cir. 2020) (quoting United States v. Bowens, 907 F.3d
347, 350 (5th Cir. 2018)) (alteration in original). Nor is it “necessary that the
evidence exclude every reasonable hypothesis of innocence; the jury is free
to choose among reasonable constructions of the evidence.” Id. (quoting
United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994)).
Thus, a habeas claim brought under Jackson is subject to a “twice-
deferential” standard. Parker v. Matthews, 567 U.S. 37, 43 (2012); see also
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (“We have made
clear that Jackson claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference.”). The first layer of def-
erence is to the jury’s determinations at trial. “[O]n direct appeal, ‘it is the
responsibility of the jury—not the court—to decide what conclusions should
be drawn from evidence admitted at trial.’” Coleman, 566 U.S. at 651 (quot-
ing Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). As to this first stage,
reviewing courts apply the Jackson standard and “may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier of fact
could have agreed with the jury.” Cavazos, 565 U.S. at 2 (emphasis added).
The second layer of deference is to the state court’s decision as to the
jury’s determinations. “[A] state-court decision rejecting a sufficiency chal-
lenge may not be overturned on federal habeas unless the ‘decision was ob-
jectively unreasonable.’” Parker, 567 U.S. at 43 (citation omitted); see also
Coleman, 566 U.S. at 651 (“And second, on habeas review, ‘a federal court
may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court.’”
(quoting Cavazos, 565 U.S. at 2)).
III.
Terry advances three arguments challenging his conviction for Count
III. First, in both his pro se and counseled briefing, he argues no rational jury
6
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could find that he was the individual who molested S.B. Second, and in the
alternative, he argues in both his pro se and counseled briefing that no rational
jury could find that the described acts were “lewd or lascivious” as required
under the law. Third, he argues that the evidence failed to establish that any
molestation occurred in Caddo Parish, Louisiana, as opposed to Mississippi.
Notably, this last argument was neither raised nor addressed by counsel in
the supplemental briefing.
A.
Terry maintains that the state court 3 unreasonably applied Jackson in
determining that the evidence presented at trial was sufficient to support his
conviction, because Terry was not sufficiently identified by S.B. as the person
who touched her. In so arguing, Terry’s counsel emphasizes two primary
points in the supplemental brief: first, that “the only connection in the record
to the Petitioner-Appellant by S.B. is her use of the nickname ‘Terry Terry
Terry,’” which S.B. used to refer to several other people, including her bio-
logical father, Jonathan; and second, repeated testimony at trial where S.B.
says either that “Jonathan” (her biological father) or her “daddy” touched
her. Such evidence, Terry argues, renders unreasonable the state court’s
conclusions that S.B. “stated that Defendant was the person who did those
acts alleged by her” or that S.B. “provided sufficient information to show
that she was indeed referring to Defendant and not her biological father” as
the perpetrator.
_____________________
3
As the Louisiana Second Circuit Court of Appeal (henceforth, “the state court”)
was the last court to issue a reasoned decision on Terry’s sufficiency claim, this is the
relevant state court decision to be reviewed. See Reeder, 978 F.3d at 276 n.5 (explaining that
“[t]his analysis is applied to the ‘last related state-court decision’ that provides a ‘relevant
rationale’” (quoting Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018))).
7
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It is true that S.B., both in her Gingerbread House interviews (at four
years old) and at trial (at six years old), gave inconsistent accounts as to who
“Terry Terry Terry” was—confirming, at various points, that “Terry Terry
Terry” referred to M.B. (S.B.’s biological mother), J.B. (S.B.’s biological fa-
ther), her two younger brothers, and her daddy’s brother (Terry). The in-
consistent reference does, admittedly, make some of the testimony confus-
ing. That alone, however, is not dispositive. The uncertainty only begins the
inquiry, as the jury was entitled to look to contextual clues as to the identity
of “Terry Terry Terry.” It is here that Terry overlooks several pieces of
identifying and corroborating evidence that would not be unreasonable for
the jury—or the trial court—to have considered in reaching its determina-
tions.
First, circumstantial evidence regarding S.B.’s living arrangements
could reasonably have furnished support for the jury’s conclusion that Terry
was the perpetrator. Initially, S.B.’s biological parents sent all three of their
biological children (S.B. and her two brothers, N.B. and Justin 4) to live with
Terry. 5 At some point, however, N.B. moved back in with M.B., leaving only
_____________________
4
The boy’s first name (Justin) is used in lieu of his initials (J.B.) in order to avoid
confusion with S.B.’s biological father Jonathan, who bears the same initials, and will be
more extensively referenced as “J.B.” throughout this opinion.
5
Testimony about the reasons for this arrangement conflicted. S.B.’s biological
mother, M.B., testified that she had sent the kids to live with Terry because she was having
a nervous breakdown, felt like she had no help with the children, and needed time to get on
her feet. J.B., S.B.’s biological father, however, testified that the kids stayed with Terry
because of financial reasons, namely, that he was not working, and denied that M.B. had
experienced a nervous breakdown. Terry’s then-wife, Jennifer Terry, testified that J.B. and
M.B. had been kicked out of Terry’s mother’s house and were struggling with housing, and
that she had offered to take in both M.B. and the children. According to Jennifer Terry,
M.B. chose to stay with J.B. but asked if Terry and Jennifer Terry could take the children
without her. Terry similarly suggested that they took in the children because J.B. and M.B.
did not have a place to live. Regardless of the reason, the facts show that S.B. was three,
almost four, when she went to live with Terry. At first, for ten months to a year, they
8
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the two youngest in Terry’s care. At the time the Gingerbread House inter-
view took place, S.B. had been living with Terry, Jennifer Terry (Terry’s
wife), and Justin for almost two years, since 2006. In her first Gingerbread
House interview, S.B. stated that she lived with her “momma, daddy, and
Justin.” She also stated that her “daddy,” named “Terry Terry Terry,” is
the one who touched her. In light of this evidence, the jury could reasonably
have found that the “daddy” with whom S.B. lived and who touched her was,
in fact, Terry—a conclusion bolstered both by M.B.’s admission that S.B.
called Terry “dad” and by testimony from Terry’s sister that S.B. called
Terry and Jennifer Terry “mom” and “dad.”
Likewise, the timing elements in S.B.’s description of the touching—
that it occurred in her bedroom while she was in bed, and occurred more than
once (first happening when she was three and again when she was four)—
also support the conclusion that Terry was the perpetrator, as during that
timeframe, S.B. was not living with her biological father J.B., but was in
Terry’s custody.
Moreover, Terry’s arguments that the record confirms that “Terry
Terry Terry” unequivocally referred to J.B. is belied by the actual testimony.
It is true that, when asked at trial to whom she had meant to refer when she
said during her Gingerbread House interview that “Terry Terry Terry was
[her] daddy,” S.B. responded “Jonathan” [J.B.] and that she similarly re-
sponded “[y]es, sir,” when asked whether she meant “Jonathan” when she
said that “Terry Terry Terry did things to [her].” But in the same testimony,
S.B. also stated that Terry Terry Terry was her “daddy’s brother.” 6 Terry
_____________________resided in a trailer in Shreveport, Louisiana, before moving to Mississippi, where they lived
for several months before Terry’s arrest on the present charges.
6
As to inconsistencies as to whom S.B. was referring when she named her
“daddy,” the jury could have reasonably found that S.B. referred to Terry as her “daddy”
9
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was therefore at least one of the individuals who S.B. referred to by the mon-
iker “Terry Terry Terry.” Indeed, the moniker would seem to apply most
naturally to Petitioner, whose first and last name is Terry.
These inconsistencies in S.B.’s trial testimony as to Terry Terry
Terry’s identity are actually similar to the inconsistencies upon which Terry
attacks S.B.’s Gingerbread House interview statements; as a result, neither
set of statements, in isolation, furnishes conclusive identification. 7 But again,
the jury was entitled to consider S.B.’s testimony in context. At the Ginger-
bread House, S.B. was a four-year-old who was allowed to play with markers
while answering questions. At trial, she was a six-year-old being asked to re-
count, in the formal setting of the courtroom, events that had happened at
least two years earlier. Whether due to the temporal gap or S.B.’s relative
comfort in the two settings, the jury could have reasonably found that the
contemporaneous Gingerbread House statements were more accurate. Fur-
ther, by the time S.B. testified at trial, she had been living in the custody of
J.B. and M.B., her biological parents. The jury, who had the benefit of live
testimony in which they could evaluate the tenor, tone, and cadence of each
witness’s response, could also have reasonably believed that the parents, who
expressed that they did not believe S.B.’s allegations and who wanted Terry
to avoid conviction, had influenced S.B.’s trial testimony. 8 These are all
_____________________
during the time when she lived with him and that, by the time of trial, at which point she
had been living with M.B. and J.B., she referred to J.B. as her “daddy.”
7
Although Terry implies in his pro se briefing that these inconsistencies render
S.B.’s testimony internally contradictory and conflicting, S.B. was a young child both in the
Gingerbread House interviews and at trial. The fact that her testimony was at times unclear
is thus best understood (and could have reasonably been understood by the jury) to be a
function of her age, not her truthfulness.
8
Although M.B. denied this, there was at least some suggestion that Terry was
giving them financial support while the children lived with him. M.B. also testified that they
had discussed letting Terry adopt the children.
10
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possibilities that preclude the conclusion that no rational trier of fact could
have agreed with the conviction. And in any event, ultimately, “discrepan-
cies in witness testimony go to the weight and credibility of the evidence,
which [this court] do[es] not review.” United States v. Bowen, 818 F.3d 179,
188 (5th Cir. 2016). 9
Second, Terry fails to address other incriminating evidence intro-
duced at trial. For instance, Dr. Ann Springer, a pediatrician at LSU Health
Sciences Center and the medical director for the CARA Center, 10 testified as
an expert in child abuse medicine. Dr. Springer examined S.B. for signs of
sexual abuse on June 19, 2008. She stated that before the examination, she
had been informed that S.B. had disclosed in an interview that her caretaker,
her great uncle, had “squeeze[d] and pinche[d] her behind and vagina.” Dr.
Springer’s examination revealed chronic redness irritation of the vulva and
labia majora, chronic yeast infection, and tissue separation of the hymen con-
sistent with sexual abuse and digital penetration. Based on these findings, Dr.
Springer’s report indicated physical neglect and sexual abuse.
Critically, Terry does not meaningfully address Dr. Singer’s testi-
mony. Though he claims two additional doctors refuted Dr. Springer’s opin-
ion (Dr. Lococo and Dr. Taylor), that evidence only came in through the tes-
timony of S.B.’s biological parents M.B. and J.B. The defense never
_____________________
9
The state court’s statement that S.B. “stated that Defendant was the person who
did those acts alleged by her” could be read to imply that S.B. unequivocally identified
Terry at trial, which is not supported by the record. However, this statement would be
accurate if, rather than read in isolation, it is read to incorporate the preceding analysis—
in other words, if it incorporates the various context clues to reach the conclusion that S.B.,
when she said that “Terry Terry Terry” and her “daddy” had touched her, was referring
to Terry.
10
The CARA Center provides diagnosis and support for victims and suspected
victims of child abuse.
11
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introduced direct testimony from these doctors, nor was Dr. Springer ever
asked to share her findings with another medical professional. Faced with
such evidence, it would not be unreasonable for the jury to find Dr.
Springer’s testimony credible. 11
Third, there is testimony from other professionals involved in the in-
vestigation that indicated that Terry’s behavior was “surprising” and poten-
tially suspicious. JaLes Washington, a child protection investigator for Caddo
Parish who was assigned to S.B.’s case, testified that at the beginning of the
investigation, she called Terry to notify him that DCFS needed to see the
children due to an allegation of abuse or neglect, but she did not provide any
details as to the allegation on that initial call. She did not specify, for instance,
whether DCFS was looking into sexual abuse as compared to physical ne-
glect. Washington also testified that Terry would have no reason to believe
that he, as opposed to S.B.’s parents, was the subject of the investigation.
Shortly after this phone call with Washington, however, Terry called her and
left a voicemail in which Terry was “upset” and stated that he had not mo-
lested anyone. Washington testified that the voicemail was surprising given
that Terry was denying molesting anyone when that allegation had not yet
been brought before him. Detective Dorothy Brooks of the Caddo Parish
Sheriff’s Office corroborated this testimony when she reiterated that Terry
was not told any specifics about the allegations during his initial contacts with
DCFS.
The defense did elicit testimony from several witnesses, such as S.B.’s
biological parents and Terry’s then-wife, Jennifer Terry, who testified that
_____________________
11
Although Terry claims that this testimony does not help confirm identity, it could
reasonably be viewed by a jury to corroborate the conclusion that S.B. had been molested
(which some witnesses disputed) during a time when she was under Terry’s care and
custody.
12
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they had seen nothing to indicate any abuse and they did not believe the alle-
gations. The mere existence of such testimony, however, is insufficient to
clear the demanding hurdle to warrant habeas relief. Terry’s challenge is tan-
tamount to a request to re-weigh the evidence and make inferences in his fa-
vor, but that is not our role. Particularly when viewed in the light most favor-
able to the prosecution, the evidence described above would likely suffice for
a conviction even under a direct application of Jackson, let alone under the
twice deferential standard required here. It simply cannot be said that the
state court was objectively unreasonable in its determination that the jury had
sufficient evidence to convict Terry on Count III.
B.
In the alternative, Terry contends that no rational jury could have
found that, even assuming he touched S.B., he engaged in a “lewd or lascivi-
ous act.” Under Louisiana law, “[a] ‘lewd or lascivious act,’ for purposes of
molestation of a juvenile, is one which tends to excite lust and to deprave
morals with respect to sexual relations and which is obscene, indecent, and
related to sexual impurity or incontinence carried on in wanton manner.”
State v. Redfearn, 44,709, p. 11 (La. App. 2d Cir. 9/23/09); 22 So. 3d 1078,
1087, writ denied, 2009-2206 (La. 4/9/10); 31 So. 3d 381; see also La. Rev.
Stat. § 14:81.2 (2008). Repeating an argument that he had previously raised
in state court, Terry claims in both the pro se and counseled briefing that the
“described painless squeezing or pinching [of] S.B.’s butt and vagina” does
not satisfy Louisiana’s definition for “lewd or lascivious.”
Though it did not address this argument directly, the state court did
reference both the expert’s testimony finding that S.B. had been sexually
abused and S.B.’s own testimony about what had been done to her and where,
which it found “sufficient to prove the elements of the offense.”
13
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We agree. The evidence was clearly sufficient for a rational jury to find
that the described acts were “lewd and lascivious”—and Terry’s alternative
explanations do not disturb this conclusion. Terry’s counsel’s argument, for
instance, that it can be normal for adults to “squeeze and pinch” a child’s
behind under their clothes, flies in the face of common sense. Terry’s pro-
vided examples of when such behavior might occur—such as when a child
needs help with the restroom—are far afield of the facts before us. As the
district court correctly noted in rejecting this argument, “[t]here [is] cer-
tainly no innocent explanation for such actions.”
Equally unavailing is counsel’s suggestion that acts must be painful in
order to be obscene or indecent. The law does not require that victims must
feel pain in order for molestation to qualify as lewd and lascivious, and Terry
neither cites case law nor identifies statutory language in support of his argu-
ment. Nor is there caselaw support for why evidence that he squeezed and
pinched a child’s genitals, at night, while that child was in bed, would be in-
sufficient for the jury to find that his conduct was “lewd and lascivious.” A
rational jury certainly could have found that the described acts were “ob-
scene, indecent, and related to sexual impurity,” see Redfearn, 44,709 at p.
11; 22 So. 3d at 1087, and thus the state court was not objectively unreasona-
ble in rejecting this claim.
C.
Finally, Terry contends—in his pro se briefing only—that the evidence
was insufficient to establish that any molestation occurred in Louisiana as op-
posed to Mississippi.
As a threshold issue, the place of the crime is not an element of the
offense of molestation of a juvenile under Louisiana law. See State v. Rideout,
42,689, p. 4 (La. App. 2 Cir. 10/31/07); 968 So. 2d 1210, 1212, writ denied,
2008-2745 (La. 9/25/09); 18 So. 3d 87. Instead, this issue is one of venue
14
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rather than sufficiency. Id. (“[I]f the defendant feels that he is being charged
for an offense that occurred in another parish, or that the State cannot prove
the venue of the alleged crime, he must raise the issue before trial by a motion
to quash, and it must be decided by the court before trial.”). Accordingly,
this argument must be properly addressed through a motion to quash and not
a sufficiency challenge. 12 As Terry has not done so, he fails to preserve this
argument.
Even were that not so, the record reflects that a jury could have rea-
sonably found that some or all of the criminal acts against S.B. occurred in
Caddo Parish, Louisiana, based on S.B.’s indications in her second Ginger-
bread House interview that Terry had touched her in a trailer both in Missis-
sippi and “here” (which the jury could reasonably have taken to be Caddo
Parish). 13
IV.
We do not find that the state court was objectively unreasonable in
rejecting Terry’s claim that there was insufficient evidence to convict him on
Count III. Accordingly, we AFFIRM the district court’s denial of his § 2254
petition.
_____________________
12
Terry also failed to preserve this argument, as he did not file a motion to quash
or otherwise raise a pretrial challenge to the venue.
13
Again, it was undisputed that S.B. had spent the first year or so living with Terry
in Louisiana; S.B. was three, almost four, when she went to live with Terry; and S.B.
indicated that she was “three” when the molestation began.
15