Background
A jury convicted Larry Perryman, Jr. of continuous sexual abuse of a child based on allegations that he repeatedly sexually abused his stepdaughter, A.A., while she was younger than 14. A.A. testified that Perryman forced her to perform oral sex many times over several years and touched her vagina. Her grandmother and forensic interviewer Caitlin Howell also testified about disclosures A.A. made concerning the abuse. Perryman testified and denied all wrongdoing.
After finding Perryman guilty, the jury heard punishment evidence, including evidence of prior convictions, and sentenced him to 85 years in prison. Perryman challenged the admission of Howell’s outcry testimony, the refusal to instruct the jury on aggravated sexual assault as a lesser-included offense, and the denial of his motion for new trial based on trial counsel’s failure to call mitigation witnesses during punishment.
The Court’s Holding
The Court of Appeals affirmed. Assuming without deciding that admitting Howell as an additional outcry witness was erroneous, the court held that any error was harmless because A.A.’s own unobjected-to testimony described the same or substantially similar abuse. Howell also expressly disclaimed any ability to determine whether A.A. was truthful, and Perryman did not preserve an independent objection that her testimony improperly bolstered A.A.’s credibility.
The court also held that Perryman failed to preserve his lesser-included-offense argument because the evidence he relied on appeal differed from the evidence he identified at trial. The argument failed on the merits as well: inconsistencies and the jury’s ability to disbelieve portions of the State’s evidence did not constitute affirmative evidence that Perryman was guilty only of aggravated sexual assault rather than continuous sexual abuse.
Finally, the trial court did consider the mitigation affidavits submitted with Perryman’s new-trial motion and was entitled to credit trial counsel’s affidavit explaining his decisions. Counsel stated that Perryman had identified only his mother as a potential character witness and that calling her would have risked undermining the defense and highlighting Perryman’s criminal history. The appellate court therefore found no error in denying a new trial on ineffective-assistance grounds.
Key Takeaways
- Any assumed error in admitting cumulative outcry testimony was harmless where the child gave substantially similar testimony without objection.
- A defendant requesting a lesser-included-offense instruction must identify at trial the specific supporting evidence and cannot rely on different evidence on appeal.
- A jury’s ability to disbelieve evidence of the greater offense is not affirmative evidence that the defendant committed only a lesser offense.
- A trial court may credit counsel’s strategic explanation for declining to call mitigation witnesses when deciding an ineffective-assistance claim raised in a motion for new trial.
Why It Matters
The opinion underscores the importance of preservation in jury-charge and evidentiary disputes. Counsel must state the specific trial evidence supporting a lesser-included-offense instruction and separately preserve any objection that testimony constitutes improper bolstering.
It also illustrates the deference afforded to a trial court’s credibility determinations on a motion for new trial and to informed strategic decisions about punishment witnesses, particularly when proposed mitigation testimony could expose damaging criminal-history evidence or challenge the jury’s guilty verdict.