Speaking from the bench Friday in 35th District Court, Judge Steve Ellis listed the factors that made the sexual assault case before him “as difficult a case as I’ve seen in awhile.”
A defendant overcoming a tragic past to become successful. A sexual relationship nine years ago between a 14-year-old girl and her boyfriend who was 4 1/2 years older. A pregnancy and abortion. Parents who did not object to their daughter’s sexual activities. The unwillingness of the girl — now a woman in her early 20s — and her parents to see the defendant prosecuted.
After hearing two days of testimony, Ellis convicted Darryl Phipps, 26, now an actor in New York, of misdemeanor assault and sentenced him to 11 days in the Brown County Jail, with credit for time already served. That meant he won’t have to serve any more time in jail.
Phipps pleaded no contest Thursday to sexual assault of a child, a second degree felony with a sentencing range of two to 20 years in prison.
Phipps was 11 when his mother murdered his 7-year-old sister, and Phipps not only witnessed the killing but was forced to participate, according to testimony.
He was placed in foster care and attended Brownwood High School. After high school, he began dating a 14-year-old girl and the two talked about staying together and starting a family later, according to testimony. When she became pregnant, she had an abortion against Phipps’ wishes, testimony showed.
When Phipps and the girl broke up, tempers flared and the girl’s family reported the sexual activity to law enforcement, according to testimony.
In court Friday, though, the girl and her father spoke highly of Phipps and said they did not want anything to happen to him. The girl acknowledged that he had bruised her arms after an argument, but she said it only happened once and, she said, that happens in all relationships.
In his closing argument, defense attorney John Lee Blagg noted the character witnesses who had spoken highly of Phipps. Blagg also said a sexual assault conviction — or even being placed on deferred adjudication for sexual assault with no conviction — would end Phipps’ career as an actor.
Prosecutor Ryan Locker, while not disputing Phipps unusual personal circumstances, argued that individualized justice would turn a blind eye to equal justice for everyone. Despite personal circumstances, Locker argued, he asked Ellis to mete equal justice.
Ellis took a 10-minute recess before announcing his decision on Phipps’ punishment. When he returned to the bench, he said he understood why the prosecution and the defense had taken their respective positions.
“I just cannot find it to be just to convict this man of sexual assault,” Ellis said. He said the conviction would be for misdemeanor assault, with no probation, no fine and no requirement to register as a sex offender.