State of Louisiana v. E. J. F.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-674

STATE OF LOUISIANA

VERSUS

E. J. F.

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR1166-05
HONORABLE HERMAN I. STEWART JR., DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Jimmie C. Peters, Marc T. Amy and James T. Genovese, Judges.

AFFIRMED.

David W. Burton
District Attorney
Richard A. Morton
Assistant District Attorney
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
E. J. F.

AMY, Judge.

A jury found the defendant guilty of three counts of aggravated incest, in

violation of La.R.S. 14:78.1. He was sentenced to serve fifteen years on each count,

to run concurrently with each other but consecutively to a federal sentence that he is

currently serving pursuant to a conviction for possession of child pornography. The

defendant appeals, alleging insufficiency of evidence, error by the trial court in

allowing other crimes evidence to be admitted at trial, error by the trial court in

denying his motion to suppress, and an excessive sentence claim. For the following

reasons, we affirm.

Factual and Procedural Background

The State alleged that the defendant, E.J.F.,1 committed three counts of

aggravated incest, in violation of La.R.S. 14:78.1, when the defendant allegedly

engaged in acts of sexual battery against A.N.H., insomuch as the victim was under

the age of eighteen and was related to the defendant as his biological granddaughter.

Specifically, the defendant was born on April 26, 1955, while the victim was born on

April 14, 1997. The State alleged that the first incident of fondling occurred on or

about May 1, 2005, and the second violation occurred on or about December 10,

2005. Finally, the third charge related to an alleged act perpetrated on December 19,

2005. The record establishes that A.N.H.’s mother is the biological daughter of the

defendant.

According to testimony at trial, the defendant’s daughter, A.B., took her three

children to visit their grandfather, the defendant, in a FEMA trailer in which he was

residing. According to the victim, she, along with her brother and sister, watched a

1
Pursuant to La.R.S. 46:1844(W), initials are used to protect the identity of crime victims
who are minors or victims of sex offenses.

movie and, with their mother’s consent, spent the night with their grandfather. Her

testimony reveals that her brother, C.F., and her sister, B.F., slept in bunk beds, while

she retired to the couch in the living room to sleep for the night. The State alleges

that the defendant sat on the couch with her, where he rubbed her breasts and touched

her vagina. According to both the victim and her brother, the defendant then got up

and chastised C.F. for making noise and opening the curtain that separated the rooms.

Upon returning, the defendant allegedly exposed himself and asked the victim to

touch his penis. She refused. According to A.N.H.’s mother’s testimony regarding

what her daughter told her about that night, A.N.H. subsequently put her head

underneath the covers. When it became apparent that the victim would not comply

with the defendant’s request, he went to his bedroom, where he remained for the rest

of the night.

According to the victim’s mother, A.B., her son, C.F., told her the next day that

he had gotten into trouble the previous night for peeking around the curtain. As

testified to at trial, this prompted A.B. to ask the victim if something had happened.

A.B. stated at trial that A.N.H. began to shake when she told her mother the sequence

of events that transpired at the defendant’s house. After A.B. was made aware of the

allegations, she called the sheriff’s office to report the alleged misconduct.

According to Detective Bebee’s testimony, the victim gave a video statement

at the sheriff’s office the following day. In this recorded statement, the victim

indicated that the most recent incident did not represent the first time the defendant

inappropriately touched her. She recounted one incident wherein the defendant was

spending the night at her house. She sat on his lap underneath a blanket, while her

parents were in another room. The defendant allegedly put his hands down her pants,

2

touching her vagina. In this video statement, the victim also recalls a separate

incident in which the defendant was holding the victim on his lap while sitting on the

couch with A.B. and the victim’s sister. The children were looking at magazines and

reviewing their Christmas lists. The victim and the defendant were covered by a

blanket, and the defendant allegedly fondled the victim’s vagina underneath her

clothes. As set forth in the video, the victim recalled that the defendant

inappropriately touched her and put her hand on his penis on several other occasions,

but she could not remember the details surrounding those times. We note that the

victim testified to the veracity of the video-taped statement at trial.

Ultimately, the State charged the defendant with three counts of aggravated

incest. After a jury found him guilty as charged, he was sentenced to serve fifteen

years at hard labor on each count. The sentences were ordered to run concurrently

with each other but consecutive to the federal sentence imposed for possession of

child pornography, with full credit for time served. The defendant filed a motion to

reconsider sentence, which was denied. The defendant appeals.

He asserts the following assignments of error:

1) There is insufficient evidence to prove the guilt of Defendant
beyond a reasonable doubt for the offenses of Aggravated Incest.

2) The Trial Court erred by allowing other crimes evidence to be
admitted at trial.

3) The Trial Court erred in denying the Defendant’s Motion to
Suppress.

4) The sentences imposed are excessive for this offender and these
offenses.

3

Discussion

Sufficiency of the Evidence

“When issues are raised on appeal both as to the sufficiency of the evidence

and as to one or more trial errors, the reviewing court should first determine the

sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992). The

defendant argues that “[t]he only evidence produced at trial was with respect to a

December 19, 2005 occurrence.” He contends that the State put forth no evidence

regarding the particular location and dates of the alleged acts. Concerning the

incident on December 19, the defendant urges that the State did not produce objective

evidence to prove that he committed a sexual battery, such as a medical examination

of the victim, results of said exam, or expert testimony.

The analysis of an insufficient evidence claim is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436
So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State
v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses. Therefore, the
appellate court should not second-guess the credibility determination of
the trier of fact beyond the sufficiency evaluations under the Jackson
standard of review. See King, 436 So.2d 559, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the
elements of the crime beyond a reasonable doubt. In order for this court
to affirm a conviction, the record must reflect that the State has satisfied
this burden of proving the elements of the crime beyond a reasonable
doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d
1367.

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.

4

At the time the alleged offenses occurred, the law provided in pertinent part:

A. Aggravated incest is the engaging in any prohibited act
enumerated in Subsection B with a person who is under eighteen years
of age and who is known to the offender to be related to the offender as
any of the following biological, step, or adoptive relatives: child,
grandchild of any degree, brother, sister, half-brother, half-sister, uncle,
aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, second degree sexual
battery, carnal knowledge of a juvenile, indecent behavior with
juveniles, pornography involving juveniles, molestation of a juvenile,
crime against nature, cruelty to juveniles, molestation of a juvenile crime
against nature, cruelty to juveniles, parent enticing a child into
prostitution, or any other involvement of a child in sexual activity
constituting a crime under the laws of this state.

(2) Any lewd fondling or touching of the person of either the child
or the offender, done or submitted to with the intent to arouse or to
satisfy the sexual desires of either the child, the offender, or both.

La.R.S. 14:78.1.

There is sufficient evidence in the record to prove the elements of aggravated

incest on all three counts. The defendant did not contest the fact that the victim is

under the age of eighteen, nor did he dispute that she is his biological granddaughter.

As stated in the factual and procedural section of this opinion, the victim’s video-

taped statement taken only two days after the last alleged offense occurred,

corroborated by the testimony of her mother and siblings, revealed that the defendant

touched A.N.H.’s breasts and/or vagina on at least three separate occasions with the

intent to arouse or satisfy his sexual desires.

The defendant’s contention that the State only produced evidence pertaining

to the last incident is without merit. In the video-taped statement, the victim

specifically referenced two other similar occurrences and reported other undetailed

occasions, but occasions nonetheless.

5

The defendant also argues that the State did not meet its burden of proof

because it failed to put forth objective evidence of a sexual battery. This contention

is without merit. The court in State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05),

916 So.2d 488, 491, quoted the language of State v. Roca, 03-1076, pp. 11-12

(La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La. 7/2/04), 877

So.2d 143:

In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual finding. State v. Stec,
99-633, p.4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case
of sexual offenses, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even where the State does not
introduce medical, scientific or physical evidence to prove the
commission of the offense.

Accordingly, the testimony of A.N.H., even without any physical evidence, is

sufficient to prove that aggravated incest occurred.

Further, the defendant’s argument that the State failed to produce any evidence

proving that the offenses occurred on May 10, 2005 and December 10, 2005 is also

without merit. This court in State v. Foshee, 99-1423, p. 6 (La.App. 3 Cir. 4/5/00),

756 So.2d 693, 696, stated, “[t]he date of [the] offense is not a specific element of

aggravated incest[.]” Additionally, the dates correspond with the victim’s recollection

in her video-taped statement of one incident occurring at the end of second grade and

another in third grade before Christmas.

We find that the evidence in the record is sufficient to sustain the conviction.

Accordingly, this assignment of error is without merit.

Evidence of Other Crimes

The defendant argues that the trial court erred by allowing evidence of other

crimes to be admitted at trial. In particular, he asserts that the photographs related to

6

the defendant’s federal conviction for possession of child pornography should have

been declared inadmissible by the trial court. He contends that La.Code Evid. arts.

404(A)(1) and 404(B) make evidence inadmissible for the purpose of proving his

character or his disposition toward committing illegal acts. Louisiana Code of

Evidence Article 404 provides in pertinent part:

A. Character evidence generally. Evidence of a person’s
character or a trait of his character, such as a moral quality, is not
admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his
character, such as a moral quality, offered by an accused, or by the
prosecution to rebut the character evidence; provided that such evidence
shall be restricted to showing those moral qualities pertinent to the crime
with which he is charged, and that character evidence cannot destroy
conclusive evidence of guilt.

Louisiana Code of Evidence Article 404 reads in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident. . . .

The defendant also argues that the evidence, if admitted under La.Code Evid.

art. 404(B), is subject to the balancing test of La.Code Evid. art. 403, which states:

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or waste of time.”

In pretrial motions, the State argued that photographs of child pornography

found on the defendant’s computer pursuant to a search of the defendant’s home,

were offered to prove lustful disposition toward children under La.Code Evid. art

412.2. Louisiana Code of Evidence Article 412.2 provides:

7

A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense involving
a victim who was under the age of seventeen at the time of the offense,
evidence of the accused’s commission of another crime, wrong, or act
involving sexually assaultive behavior or acts which indicate a lustful
disposition toward children may be admissible and may be considered
for its bearing on any matter to which it is relevant subject to the
balancing test provided in Article 403.

The State, urging that under La.Code Evid. art. 403 the probative value of the

evidence outweighed any prejudice to the defendant, maintained that the evidence

was admissible.

The defendant insisted that the application of La.Code Evid. art. 412.2 is

discretionary and that using it to admit the depictions of child pornography in this

case violated his due process rights, particularly because child pornography is not an

integral part of aggravated incest. Alternatively, the State contended that La.Code

Evid. art. 412.2 expands the admissibility of evidence under La.Code Evid. art.

404(B) when the offense is sexual in nature and is perpetuated against a victim under

the age of seventeen. The trial court agreed with the State, finding the evidence

admissible, insomuch as it proved a lustful disposition toward children.

In a recent case involving the forcible rape trial of a fourteen-year-old girl, the

State offered evidence of another crime, sexual battery, also committed on a fourteen-

year-old girl, who testified that she had been sexually assaulted by the defendant.

State v. Mayeux, 06-944 (La.App. 3 Cir. 1/10/07 ), 949 So.2d 520. An eyewitness to

the offense also testified at trial regarding the sexual assault. The defendant argued

that admission of the testimony was prohibited by La.Code Evid. art. 404(B)(1), that

the crimes’ sexual natures were dissimilar and that the introduction of the evidence

of the sexual battery would be unduly prejudicial. The trial court ruled that the

evidence was admissible pursuant to La.Code Evid. Art 412.2, because the testimony

8

of the sexual battery showed a lustful disposition toward young teenage girls and that

the probative value of the evidence outweighed the prejudicial effect of the

defendant’s case. The trial court’s ruling was affirmed on appeal. This court stated,

“[w]hile one incident involved rape and one incident involved oral sexual contact, in

both cases, Defendant sought out fourteen-year-old girls, who were guests in his

home, late at night after they fell asleep.” Id. at 529.

Based on the language of La.Code Evid. art. 412.2 and the jurisprudence

applying the article, we find that the trial court did not commit error when it allowed

evidence of the defendant’s federal conviction for possession of child pornography

to be admitted. Because the defendant was charged with sexual misconduct against

a victim who was under the age of seventeen, the defendant’s conviction relating to

the possession of pornographic images of children2 is relevant for the purposes of

revealing his lustful disposition toward young girls.

We note, too, that the defendant has not produced evidence of how the

probative value of the defendant’s federal conviction is outweighed by any prejudicial

effect of the evidence. Accordingly, the assignment is without merit.

2
We note that the trial court did not allow pictures depicting adult pornography into
evidence; rather, the trial court only deemed admissible the images of adult men engaging in sexual
conduct with young girls and cartoons depicting well-known cartoon fathers engaging in sexual
activities with their young daughters.

9

Motion to Suppress

Relying on La.Code Crim.P. arts. 1623 and 163,4 the defendant argues that the

trial court erred when it denied the defendant’s motions to suppress the search

warrant. The search warrant issued in this case was originally dated July 21, 2005

and was corrected by the issuing judge, after the search, to read December 21, 2005.

The judge who issued the warrant and made the subsequent correction was the same

judge who presided at the defendant’ s jury trial. This judge took judicial notice of his

handwriting on the search warrant where the corrections were made. In his first

contention, the defendant claims the motion should have been granted on the grounds

of the warrant being stale, as December 21 is obviously more than ten days past July

21. Due to its alleged expiration, the defendant sought to suppress all evidence seized

pursuant to the search.

In his second motion, he argued that the warrant did not describe the location

to be searched with particularity, insomuch as the warrant described the place as a

“gray wood frame house and travel trailer” when, in actuality, a beige-colored mobile

home and a FEMA trailer were searched. When asked about the description,

Detective Bebee stated that it was “the 911 description of the address at that

residence[.]” She also testified that when she arrived at the defendant’s address, the

3
Louisiana Code of Criminal Procedure Article 162 provides:

A search warrant may issue only upon probable cause established to the
satisfaction of the judge, by the affidavit of a credible person, reciting facts
establishing the cause for issuance of the warrant.

A search warrant shall particularly describe the person or place to be
searched, the persons or things to be seized, and the lawful purpose or reason for the
search or seizure.
4
Louisiana Code of Criminal Procedure Article 163(C) provides in pertinent part, “[A]
search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.”

10

defendant was not home so she walked to the adjacent residence. She then discovered

that the neighboring house belonged to the defendant’s father and stepmother, who

confirmed that the defendant lived at the address indicated on the warrant. According

to Detective Bebee’s testimony, the defendant’s stepmother told her she could find

the defendant at work; therefore, Detective Bebee went to the defendant’s place of

employment. The defendant, then, accompanied her to his home, where he confirmed

that the structures on the property were his own. Thereafter, the search was

conducted.

In ruling on the motions, the court gave oral reasons:

Thank you. First of all, the Court has viewed the photograph of
the mobile home. It appears to be an off-white color. Whether it could
be considered gray or not, I don’t know. I just call it an off-white as the
way it appears in the photograph.
As to the search warrant and its date, the application was signed
before myself as criminal district judge, dated December 21, 2005, by
Ms. Janet Bebee. The application is for a search warrant of the
permanent residence and the travel trailer located at 548 Longville
Acres. The testimony has been that the mobile home that’s shown in the
photograph and the travel trailer were the only structures that were at
548 Longville Acres and that 548 Longville Acres had its own driveway
leading up to that residence and that the property of Mr. [ F’s] parents
was in the neighborhood of 100 yards away and had its own separate
driveway and its own separate number, although they do not recall what
that number was. With the investigation not having begun until
December 21, it appears that the printed date on the search warrant
showing the 21st day of July, the month was printed in error; and
apparently the Court in signing the warrant saw the 21st but not the July
date and signed the warrant with an erroneous date on it at that time. I
feel 100 percent positive that with the affidavit having been signed in
my own presence on the 21st day of December, that the search warrant
was also signed on that date of the application. And there is no evidence
being presented to the Court that shows that the application was signed
on any date other than December 21, 2005.
There is testimony that establishes that 548 Longville Acres was
the residence of the defendant, as acknowledged by him. When
considering the application together with the search warrant, the Court
considers that the application was made for two structures on the
property. The search warrant was granted for two structures on the
property. All of the testimony has been there were only two structures

11

on the property. And an error in describing one of those two structures
from wood-frame home to mobile home is not sufficient in this Court’s
mind to set aside what is otherwise a good and valid search warrant for
the two structures.
There is certainly nothing to show any bad faith in this instance.
The obtaining of the search warrant was with proper application and
probable cause stated in the application. It was on December 21, 2005.
The only error in the application was, again, the description of the
structure as gray, wood-frame house. But, clearly, the application was
for two structures that were in the nature of living quarters on the
property. And there were only two structures that were in the nature of
living quarters, by any description, on the property; therefore, the Court
is going to rule that the motion to suppress will be denied.

We find that the testimony at trial clearly indicates that the application for the

search warrant was presented to the judge on December 21, 2005. As noted by the

trial court, we emphasize the fact that the investigation did not begin until December

19, 2005, when the offenses were reported. To suggest that the warrant was stale

simply ignores the possibility of typographical error, particularly when the judge took

judicial notice of his signature next to the correction and the defendant presented no

evidence to establish that the warrant was actually prepared on July 21, 2005.

Insomuch as the defendant contends that the search warrant was invalid due to

the wrong description of the structures to be searched, we rely on the standard of

review set forth by the court in State v. Korman, 379 So.2d 1061, 1063 (La.1980)

(citations omitted):

The description contained in the search warrant is adequate if it is
sufficiently detailed so as to allow the officers to locate the property
with reasonable certainty and with reasonable probability that they will
not search the wrong premises.

This court has held that a minor error in a portion of the
description of the premises to be searched does not invalidate the search.

Additionally, the court in State v. McLeod, 03-50 (La.App. 3 Cir. 4/30/03), 843 So.2d

1268, 1274 stated, “[i]f police officers knowingly search entirely different premises

12

than that described in the warrant, the evidence seized will be suppressed because the

warrant did not particularly describe the place to be searched. State v. Manzella, 392

So.2d 403 (La.1980).”

In this case, before conducting the search, the detective confirmed that the

defendant indeed lived in the two structures located at the address contained in the

warrant. The record does not reveal evidence that the wrong location was searched

or that the search warrant was executed in bad faith. Accordingly, this assignment

lacks merit.

Excessive Sentence

In his final assignment of error, the defendant argues that his fifteen-year

sentences are excessive. On appeal, he asserts, “the Trial Court placed heavy

emphasis on the victim impact statement and potential damage to A.N.H., although

the State failed to submit any evidence to support these conclusions.” He also

contends that the “Trial Court also penalized the Defendant for continuing to deny his

guilt. This is not an aggravating fact justifying a sentence in the upper ranges.”

Finally, he urges that “[t]he Trial Court failed to adequately consider the factors listed

in [La.Code Crim.P. art.] 894.1.”

Pursuant to La.Code Crim.P. art 881.1(E),5 the defendant is precluded from

raising these specific grounds on appeal. Therefore, we will conduct a bare claim of

excessiveness. See State v. Mims, 619 So.2d 1059 (La.1993).

5
Louisiana Code of Criminal Procedure Article 881.1(E) reads in pertinent part:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon
which a motion to reconsider sentence may be based, including a claim of excessiveness, shall
preclude the state or the defendant from raising an objection to the sentence or from urging any
ground not raised in the motion on appeal or review.

13

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court

stated:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether
the trial court abused its broad sentencing discretion, not whether
another sentence might have been more appropriate. State v. Cook,
95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117
S.Ct. 615, 136 L.Ed.2d 539 (1996).

At the time the offenses were committed, La.R.S. 14:78.1(D) imposed the

following sentence for persons convicted of aggravated incest: “A person convicted

of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or

imprisoned, with or without hard labor, for a term not less than five years nor more

than twenty years, or both.” As the trial court sentenced the defendant to fifteen-year

sentences, a maximum sentence was not imposed. Neither did the trial court order

him to pay a fine.

The trial court stated in its written reasons for sentencing:

At the sentencing hearing, your daughter, the mother of A.N.H.,
read a victim’s impact statement which has been filed in the record. The
Court allowed you to submit a written statement. In that statement you
continue to deny any guilt whatsoever and accuse your daughter of lying
and being motivated by revenge. You also complain of the jury being
stacked and tainted with some jury members napping during the trial.
You also accuse the Beauregard Parish Judicial System of being corrupt.
You take no responsibility whatsoever for your present situation. I

14

reject outright your groundless allegations against the jury and this
Court.
You are now serving ten (10) year federal sentence for possession
of child pornography. Despite your protestations this Court is
convinced of your guilt and I fully concur with the jury’s findings.
R.S. 14:78.1 provides that a person convicted of aggravated incest
shall be subject to imprisonment with or without hard labor for a period
of not less than five (5) nor more than twenty (20) years.
Your only criminal history involves your federal conviction of
child pornography. That conviction arose out of the investigation of the
instant case. You are therefore classified at this time as a first felony
offender.
Mr. [F.], your crime is particularly heinous considering that the
victim, your granddaughter, was only eight (8) years old at the time of
this occurrence and your molestation and sexual battery of this
defenseless child occurred over a period of several months. The
psychological effect on her will probably never be fully known or
appreciated, but the Court believes that it will be substantial and long
lasting.
In arriving at a sentence for you I have considered all of the
provisions of the sentencing guidelines set forth in Code of Criminal
Procedure Article 894.1. Although you are a first offender, I do not
believe you are a good candidate for probation. I believe that there is a
high probability that if you were granted probation you would constitute
a danger to children and likely re-offend. Further, any probation, if
granted, would be subject to you serving your federal sentence.
The public and our legislature expect the Courts to impose substantial and
meaningful sentences in cases such as yours which involve sexual abuse of the very
young and defenseless. If this case had occurred at a time that the present law was
in effect, you would be facing a minimum sentence of twenty-five (25) years
imprisonment on each count.[6] The Court however must impose a sentence in
compliance with the law in effect at the time you committed these crimes.

After reviewing the record, we find that the defendant’s sentences are not

excessive. The trial court did not abuse its discretion in sentencing the defendant to

serve fifteen years in prison on each count.

DECREE

6
Louisiana Revised Statutes 14:78.1 was amended in 2006 to provide:

Whoever commits the crime of aggravated incest on a victim
under the age of thirteen years when the offender is seventeen years
of age or older shall be punished by imprisonment at hard labor for
not less than twenty-five years nor more than life imprisonment. At
least twenty-five years of the sentence imposed shall be served
without benefit of parole, probation, or suspension of sentence.

15

For the foregoing reasons, the defendant’s convictions and sentences for

aggravated incest are affirmed.

AFFIRMED.

16