State of Louisiana v. A.B.M., Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-648

STATE OF LOUISIANA

VERSUS

A.B.M., JR.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 294,309
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Jimmie C. Peters, James T. Genovese, and David E. Chatelain,*
Judges.

AFFIRMED.

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, Louisiana 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
A.B.M., Jr.

James C. “Jam” Downs
District Attorney – Ninth Judicial District
Michael W. Shannon – Assistant District Attorney
Post Office Drawer 1472
Alexandria, Louisiana 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana
_____________________
*Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

GENOVESE, Judge.

In this criminal case, Defendant, after having been convicted by a jury of

molestation of a juvenile and incest, appeals, alleging insufficiency of the evidence

to support his molestation conviction and excessive sentences. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 27, 2008, A.B.M, Jr.,1 was charged by bill of information with

molestation of a juvenile, a violation of La.R.S. 14:81.2(A) & (C), and with incest,

a violation of La.R.S. 14:78(A) & (D)(1). On the State’s motion, the bill was

amended on December 8, 2009, changing only the date of the offense.

The State alleged that Defendant had molested his eleven-year-old daughter,

K.M. The State further alleged that Defendant also had sexual intercourse with his

daughter, C.C., in November of 2007, resulting in a pregnancy and the birth of a child

on August 18, 2008.

Following a jury trial on December 9, 2009, Defendant was found guilty as

charged. On December 18, 2009, Defendant was sentenced to serve fifteen years at

hard labor for each conviction, and the sentences were ordered to run consecutively.

Defendant did not file a motion to reconsider sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent.

1
Initials are used herein pursuant to La.R.S. 46:1844(W).

ASSIGNMENTS OF ERROR

Defendant alleges that “[t]here is insufficient evidence to prove the guilt of

Defendant for the offense of molestation of a juvenile beyond a reasonable doubt[,]”

and that “[t]he sentences imposed are excessive for this offender and these offenses.”

Assignment of Error No. 1

In this assignment of error, Defendant argues there is insufficient evidence to

prove his guilt for molestation of a juvenile beyond a reasonable doubt. The analysis

for a claim of insufficient evidence 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (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, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Molestation of a juvenile is defined in La.R.S. 14:81.2(A), which states:

Molestation of a juvenile is the commission by anyone over the
age of seventeen of any lewd or lascivious act upon the person or in the
presence of any child under the age of seventeen, where there is an age
difference of greater than two years between the two persons, with the
intention of arousing or gratifying the sexual desires of either person, by
the use of force, violence, duress, menace, psychological intimidation,
threat of great bodily harm, or by the use of influence by virtue of a
position of control or supervision over the juvenile. Lack of knowledge
of the juvenile’s age shall not be a defense.

2

Defendant complains that the only evidence of the alleged offense was the

victim’s testimony. Defendant maintains that the victim’s allegation is not credible

because she did not tell her mother until five days later and because her testimony is

refuted by a lack of corroborating physical evidence.

In the alternative, should this court conclude that Defendant did commit the

offense as claimed by the victim, Defendant asserts that the State failed to prove

every element of the offense, specifically that he used force, duress, intimidation, or

threats of bodily harm to facilitate the act, or that he used influence by virtue of a

position of control or supervision of the juvenile victim. Defendant maintains there

was no evidence presented by the State to show he was in a position of control or

supervision of the victim.

Lewd or Lascivious Act

As noted in State v. Rollins, 581 So.2d 379, 382 (La.App. 4 Cir. 1991), “A

lewd or lascivious act is one which tends to excite lust and to deprave the morals with

respect to sexual relations and which is obscene, indecent, and related to sexual

impurity or incontinence carried on in a wanton manner. State v. Holstead,

354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950).”

See also State v. Cloud, 06-877 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, writ

denied, 07-86 (La. 9/21/07), 964 So.2d 331. This court in State v. Shirah, 97-384

(La.App. 3 Cir. 10/8/97), 702 So.2d 825, found that the acts alleged by the children,

the victims therein, including the defendant’s touching of their genitals, forcing them

to touch his penis, masturbating in front of and attempting vaginal intercourse with

one of the children, clearly constituted lewd or lascivious acts committed with the

intention of arousing or gratifying the sexual desires of either person. See also

3

State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181

(La.1993).

In the instant case, the victim, K.M., who was fourteen years old at the time of

trial, testified that during the summer of 2008, she was living with her mother and

stepfather. During that time, her stepfather became ill, so she went to stay at

Defendant’s house. During her stay, Defendant asked his other daughter, who was

living with him at the time, the victim’s older half sister, C.C., to get on top of him

and show the victim “how it’s done.” Defendant was not wearing clothes at the time.

According to the victim, C.C. did not comply because she was nine months pregnant.

The following night, the victim was in her room when she heard Defendant

holler for her. The victim went to Defendant’s room to see what he wanted. At that

time, Defendant began removing the victim’s clothes, and she told him to quit.

Defendant, however, did not stop and removed some of her clothing. He then

touched her breasts and stomach with his mouth. Although the victim continued to

tell him to stop, Defendant did not stop. Defendant told the victim to touch his penis,

but the victim refused. Defendant then proceeded to get on top of the victim and tried

to insert his penis into her vagina. At some point, the victim managed to get away

and ran to her room where she latched the door shut.

The victim did not tell anyone about the incident for one or two days. The

victim was not asked, nor did she state, whom she first told of the offense. About

three days later, the victim spoke to her mother but did not say anything to her at that

time about what happened. About five days later, the victim called her mother to

come get her. Her mother then took her to speak with someone at the Child

Advocacy Center.

4

C.C. also testified at trial about the time the victim came to stay with Defendant

in July of 2008. C.C. stated that at that time she was living with her father,

Defendant, and was eight to nine months pregnant with his child.2 She recalled that

Defendant asked her to show the victim how to have sex. She did not comply,

however, with his request. According to C.C., the victim started acting unusual the

next day, and, two to three days after that, she went home.

Defendant’s statement was taken by the police on July 30, 2008. When

Defendant was asked if he had forced himself on his daughter, the victim, he stated

that he had never been left alone with her. Defendant denied removing the victim’s

clothes and being around her while wearing no clothes. Defendant maintained that

the victim made up the allegations, that they were not true, and that he had never

behaved inappropriately with the victim.

Considering the facts adduced at trial, Defendant’s actions with the victim meet

the requirements of committing lewd or lascivious acts with the intent to arouse or

gratify his sexual desires. Although Defendant denied the victim’s allegations, the

jury chose to believe the victim’s testimony. In 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 (citations omitted), the court stated:

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. 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.

See also State v. Rideaux, 05-446 (La.App. 3 Cir. 11/2/05), 916 So.2d 488.

2
DNA evidence admitted at trial indicates that the relative probability that Defendant is the
biological father of C.C.’s child is .9999.

5

Without there being internal contradiction or irreconcilable conflict with

physical evidence, we find K.M.’s testimony alone is sufficient to establish the

elements of molestation of a juvenile. Further, the veracity of K.M.’s testimony was

supported by the testimony of C.C. regarding Defendant’s behavior toward K.M. the

night before the offense, in addition to the fact that Defendant impregnated C.C., who

is also his biological daughter.

Position of Control or Supervision

We note that the bill of information specifically alleges that Defendant

molested the victim, J.M., by the use of influence by virtue of a position of control

or supervision over the victim. Defendant maintains, however, that there was no

evidence presented by the State to show he was in a position of control or supervision

of the victim. As such, Defendant asserts that the State failed to prove every element

of the offense.

As noted in State v. Onstead, 03-1413, p. 8 (La.App. 5 Cir. 5/26/04), 875 So.2d

908, 913 (footnote omitted), “[a]lthough the usual scenario may be that the offender

is related to the victim or lives in the home, the statute does not mandate these

circumstances.” As an example of such a circumstance, the Onstead court referenced

this court’s opinion in State v. Davis, 97-331 (La.App. 3 Cir. 10/29/97), 702 So.2d

1014, writ denied, 97-2990 (La. 11/6/98), 726 So.2d 919. In Davis, the thirteen-year-

old victim was visiting defendant’s camp, along with her mother and two brothers.

After their arrival at the camp, the victim’s mother and defendant’s wife went to the

camp to cook, and defendant, along with the victim, the victim’s brothers, and his

daughter, went to the creek to go fishing. Thereafter, the victim’s brothers and

defendant’s daughter left the area either to play, to visit with other teenagers, or to

6

fish, leaving the defendant alone with the victim. While alone with the victim,

defendant molested the victim.

In Onstead, 875 So.2d 908, the defendant was the victim’s neighbor and lived

alone. The defendant testified that he asked the victim’s mother for permission to

have her children at his home. Also, he had rules for the children to follow at his

home, and he performed caretaking functions for the victim while she was at his

home. With her mother’s permission, defendant took the victim on errands, picked

her up from school, brought her to gymnastics, and bought her toys, clothes, and other

gifts. Additionally, defendant compelled the victim’s silence by telling her that she

would not be allowed to come to his house anymore if she revealed that he had made

her touch him. On appeal, the appellate court concluded that the evidence was

sufficient to prove defendant used influence by virtue of a position of control or

supervision to take advantage of the victim and to indulge himself.

In the instant case, R.W., the victim’s mother, testified that the victim was born

of her marriage to Defendant and that Defendant is the victim’s biological father.

R.W. and Defendant were married for about three and one-half years and divorced

when the victim was about six months old. R.W. remarried. In July of 2008, her

husband had a heart attack. At this same time, her youngest child had a severe kidney

infection. Both her husband and the child were hospitalized, so she asked Defendant

if their daughter, the victim, could stay with him. The victim stayed with Defendant

for a number of days before contacting her mother about the alleged abuse.

Considering these facts, the record indicates that Defendant had control or

supervision over the victim, his biological daughter. Although she did not live with

him, Defendant was asked to care for the victim and, thus, had permission to be near

7

her and to perform caretaking functions. Also, there is no evidence that another adult

was present, only her half sister; and, thus, Defendant was required to supervise and

care for the victim. Accordingly, we find this assignment of error to be without merit.

Assignment of Error No. 2

By this assignment of error, Defendant argues that his sentences are excessive.

Defendant did not file a motion to reconsider his sentences; therefore, his

excessiveness claim is barred by La.Code Crim.P. art. 881.1. However, in the interest

of justice, we choose to review this assignment of error as a bare claim of

excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41,

writ denied, 06-1233 (La. 11/22/06), 942 So.2d 552.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

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. 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.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for

8

similar crimes. While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that sentences must
be individualized to the particular offender and to the particular offense
committed.” Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted).

At the time of the offenses, the penalty for molestation of a juvenile pursuant

to La.R.S. 14:81.2(C) was one to twenty years imprisonment, with or without hard

labor, or a fine of not more than ten thousand dollars, or both.3 As such, Defendant’s

fifteen-year sentence was an upper range sentence but not the maximum possible

sentence. Also, Defendant was spared a significant fine. The penalty for incest

pursuant to La.R.S. 14:78(D)(1) was not more than fifteen years at hard labor. As

such, Defendant’s fifteen-year sentence was the maximum possible sentence.

At sentencing, the victim’s mother, R.W., gave her victim impact statement.

First, R.W. testified that her daughter’s emotional scars would last a lifetime and that

she was left with putting their lives back together as best she could. Additionally,

R.W. stressed that both victims suffered additional pain and humiliation when they

took the stand and recounted what had happened to them before people they did not

know. She also expressed her disgust that Defendant used his children as objects of

his sexual gratification, making the situation “beyond horrific.” For these reasons,

R.W. asked that Defendant receive the maximum penalty allowed by law.

Next, the State asserted that Defendant was the worst offender under the worst

circumstances and indicated that the State had under-billed the case. Although

3
Defendant incorrectly asserts in his brief that the sentencing range is five to ten years which
is the sentencing range in La.R.S. 14:81.2(B).

9

Defendant was charged with one count of incest, the State indicated that the incest

was repeated and ongoing for at least two years. As such, the State urged the trial

court to consider that it could have charged Defendant with ten counts of incest but

chose only the one count that resulted in the conception of a child. The State also

asked that Defendant receive consecutive sentences because the case involved two

different victims and two totally different crimes that occurred at different times. In

rebuttal, defense counsel urged the trial court to consider that Defendant was a first-

time offender.

The trial court then confirmed that Defendant was forty-six years old and had

a ninth-grade education. Also, Defendant indicated that he was employed at the time

of his arrest and had been married for thirteen years. The trial court then stated:

I have looked at the aggravating -- I mean, the sentencing conditions
under Article 894, the aggravating and the mitigating circumstances, and
I find that there’s an undo [sic] risk that during the period of a
suspended sentence or probation that you will commit another crime.
I find that you are in need of correctional treatment or [a] custodial
environment that can be provided most effectively by your commitment
to an institution, and I find that a lessor [sic] sentence would deprecate
the seriousness of the defendant’s charge.

In reviewing the aggravating factors, I find that aggravating factor
Number 2 is applicable. You knew or should have known that the
victim of the offense was particularly vulnerable or incapable of
resisting because of [her] youth and also that you used your position or
status to facilitate the commission of the offense.

You were the father of these children, and it is your responsibility
to protect these children, and you failed in that, sir. I cannot think --
I’ve been doing this 13 years[,] and I have never seen a case like this,
Mr. [M]. I -- I was appalled in pretrial, and then I was further appalled,
uh, during the trial of this case. You did something that is, uh,
unimaginable and unforgivable, sir, and you deserve a very harsh
sentence.

Obviously[,] on the incest you, uh, had a sexual relationship with
your daughter that produced a -- that produced a child and the maximum
for incest is 15 years, and I think that, uh, unfortunately[,] that’s all I can

10

give you for that, sir. That’s way too small a sentence for you to do
what you did to your daughter and to produce a child.

As a general rule, maximum or near-maximum sentences are reserved for the

most serious violations of the charged offense and the worst kind of offender. State

v. Quebedeaux, 424 So.2d 1009 (La.1982); see also State v. Massey, 08-839

(La.App. 3 Cir. 12/10/08), 999 So.2d 343. In the instant case, we find Defendant’s

actions constitute serious violations of the charged offenses.

Molestation of Juvenile

With regard to molestation of a juvenile, we note that the maximum sentence

was increased from fifteen years to twenty years in 2006. In State v. Ferguson,

44,009 (La.App. 2 Cir. 2/25/09), 4 So.3d 315, the thirty-one-year-old defendant was

convicted of molesting his girlfriend’s fifteen-year-old daughter. He received the

maximum twenty-year sentence and a $10,000.00 fine. In addition to the victim

impact statements submitted by the parents, the trial court considered defendant’s

presentence investigation report, noting that defendant was a first felony offender.

The trial court found that it was significant that the victim was under defendant’s

authority and that he had used his position and status in the home to facilitate the

commission of the crime. Further, the trial court stated that defendant knew or should

have known that the victim was particularly vulnerable or incapable of resisting due

to extreme youth, and it determined that the offense resulted in significant permanent

injury and significant economic loss to the victim due to the difficulty and expense

of recovering. In affirming the sentence and fine on appeal, the appellate court found

that the trial court adequately articulated the reasons for the sentence imposed and

observed that other charges involving sexual intercourse were dismissed.

In State v. Works, 39,430 (La.App. 2 Cir. 4/6/05), 899 So.2d 808, the

11

thirty-three-year-old defendant pled guilty as charged to one count of molestation of

a juvenile, who was his seven-year-old second cousin, and was sentenced to ten years

at hard labor. The defendant admitted to fondling the victim’s private parts on

multiple occasions when the child was in his care at his residence. The defendant was

a first felony offender with no juvenile record but had misdemeanor convictions for

theft, resisting arrest, interfering with an officer, and trespass. Considering the facts

of the case, the trial court found that defendant was not acting out of youthful

curiosity and found significant the fact that he had committed the offense on many

occasions. The trial court also opined that the victim’s age was an aggravating factor,

as was her loss of innocence. In mitigation, the trial court considered defendant’s

confession and his cooperation with the authorities. Also, defendant was single, had

no children, and there was no report of prior pedophilic behavior. Lastly, the trial

court determined that a lesser sentence would deprecate the seriousness of

defendant’s conduct, which the court considered to be reprehensible.

In affirming the sentence on appeal, the court noted that the sentence was

lawful, less than the maximum sentence allowed, and that no fine was imposed.

Additionally, the State showed leniency by charging him with only one offense,

although he admitted to committing the offense on many occasions. The court found

aggravating the fact that defendant took advantage of his status as an “uncle” to

sexually abuse an immature child who was entrusted to his care and safekeeping.

Considering the facts of the instant case, in light of the jurisprudence reviewed

herein, we find that Defendant’s fifteen-year sentence for molestation of a juvenile

is not excessive, particularly considering Defendant’s position of authority over the

victim as her father to whom her care was entrusted in her mother’s absence. The

12

trial court properly considered the victim’s youth as an aggravating circumstance, in

addition to the loss of her innocence as stated by her mother. Further, Defendant did

not receive the maximum sentence, nor was he fined. Accordingly, we find that the

trial court did not abuse its considerable discretion when it sentenced Defendant on

this conviction. This assignment of error lacks merit.

Incest

In State v. Evans, 27,183 (La.App. 2 Cir. 9/27/95), 661 So.2d 600, defendant

was charged with ten counts of incest involving his biological daughter. Pursuant to

a plea agreement, he pled guilty to three of those counts, and the remaining seven

were dismissed. He was then sentenced to three consecutive maximum sentences of

fifteen years at hard labor. The victim alleged that when she was twelve to thirteen

years old, defendant had sexual intercourse with her every four to six weeks during

a one-year time period. A medical examination confirmed the victim had been

sexually active, and the victim’s sister said she saw the defendant having sex with

her. Also, defendant confessed to having sex with the victim at least ten times during

the alleged time.

The trial court found no mitigating factors and opined that defendant’s offense

was a very serious crime. Additionally, the trial court noted the benefit received from

his plea bargain. Information contained in defendant’s presentence investigation

report indicated that defendant began improperly touching and performing other acts

with the victim when she was ten years old. The trial court also found aggravating

the fact that the offenses, both charged and uncharged, had occurred over a lengthy

period of time. As such, the trial court concluded that defendant was the worst type

of offender for whom the most severe penalty was reserved.

13

On appeal, the court found that the trial court properly considered the

sentencing guidelines and adequately stated for the record the considerations taken

into account and the factual basis for the sentences imposed. The court also observed

that when given the opportunity to make a statement at sentencing, neither defendant,

nor his counsel, mentioned the existence of mitigating factors. The court also

reviewed the jurisprudence available at the time and noted the following cases:

In State v. White, 552 So.2d 553 (La.App.2d Cir.1989), the
defendant engaged in aggravated rape and aggravated crime against
nature with his [eleven]-year-old niece over a [nineteen]-month period
of time. This court found no abuse of discretion in imposing
consecutive, maximum sentences. There, as here, the defendant’s
conduct threatened serious emotional harm to the victim; she was
undergoing counseling; and the misconduct occurred over a lengthy
period of time in which the defendant had time to reflect on his actions.

In State v. Racine, 480 So.2d 945 (La.App.2d Cir.1985), the
defendant pled guilty to three counts of incest with his [sixteen]-year-old
daughter. This court affirmed three consecutive [twelve]-year sentences.
The defendant there, as here, had no felony criminal history. The trial
court noted that sexual crimes of this nature--between father and
daughter--are the most despicable in our society. There too, the acts
occurred over a period of time which was held to justify the imposition
of consecutive sentences. The victim here was much younger than in
Racine.

And see State v. Childs, 466 So.2d 1363 (La.App. 3d Cir.1985),
which held that the rape of one’s underage daughter is among the most
serious violations of the crime of forcible rape and, based solely on the
nature of the offense, a maximum sentence can be imposed.

Evans, 661 So.2d at 602-03.

In State v. Butters, 527 So.2d 1023 (La.App. 1 Cir. 1988), defendant was

convicted of incest with his eleven-year-old daughter and received the maximum

sentence of fifteen years at hard labor. During a seven-month time period, defendant

engaged in sexual intercourse, both vaginal and anal, with the victim, a child with

learning disabilities who functioned at the fourth grade level while in the fifth grade.

14

The trial court noted that defendant had a prior felony theft conviction for

which he received a suspended sentence and probation. However, defendant never

reported for probation, and his probation eventually terminated unsatisfactorily. The

defendant also had a misdemeanor conviction of soliciting for prostitution.

Additionally, the trial court found aggravating the fact that defendant had not acted

under provocation by the victim and that the victim had not induced or facilitated the

commission of this offense. The trial court concluded that there was an undue risk

that defendant would commit another crime of this nature, that he was in need of

correctional treatment, and that any lesser sentence would deprecate the seriousness

of the offense.

On appeal, the court noted that the victim was extremely upset because

defendant’s conduct resulted in the placement of her and her siblings in foster homes.

The court also opined that the victim would suffer future emotional problems.

Additionally, the court found that defendant was the worst type of offender based on

the fact that defendant had a prior criminal record and had engaged in sexual activity

with both the victim and another daughter.

In affirming the sentences, the court referred to this court’s decision in

State v. Matthews, 517 So.2d 1064 (La.App. 3 Cir. 1987), wherein defendant’s

maximum fifteen-year sentence was upheld. The defendant was convicted of incest

involving his daughter, beginning when she was eight years old. The victim

contracted gonorrhea, which was reported by her physician and prompted an

investigation. When she was reexamined about three months later, the physician

determined that she was being sexually abused based on his physical findings,

including the sexually transmitted disease.

15

In upholding the sentence, this court noted that the trial court specifically

addressed each mitigating factor listed in La.Code Crim.P. art. 894.1. Despite the fact

that defendant was a first felony offender, the trial court found that the aggravating

factors outweighed the mitigating factors and that a lesser sentence would deprecate

the seriousness of the offense.

In the instant case, Defendant’s daughter, C.C., testified at trial that she went

to live with her father when she was twelve to thirteen years of age. At some point

thereafter, she and Defendant began having sexual intercourse and did so on a number

of occasions. When C.C. was first questioned by police about allegations of sexual

activity made by her younger half sister, K.M., she was eight to nine months pregnant

with Defendant’s child. The DNA evidence submitted at trial supported C.C.’s

testimony that Defendant was the father of her child.

When asked at trial how she felt about her father, C.C. stated that she loved her

father to an extent, yet at the same time, she stated that she despised him. She had no

interest in protecting him at that time but was scared that if he “got out,” she would

have to deal with the consequences. C.C. could not recall the number of times that

she had sex with Defendant but estimated the number to be around five to ten times.

Considering the facts of the instant case, we find that the sentence imposed by

the trial court on Defendant for incest is not excessive, particularly considering the

fact that he used his position of authority over the victim, and his conduct resulted in

the pregnancy and birth of a child. Moreover, his activity of sexual abuse extended

over a period of time and occurred multiple times. Accordingly, we find that the trial

court did not abuse its discretion when it sentenced Defendant as one of the worst

offenders. This assignment of error lacks merit.

16

DISPOSITION

Defendant’s conviction for molestation of a juvenile is affirmed. Defendant’s

sentences for molestation of a juvenile and incest are likewise affirmed.

AFFIRMED.

17