FindLaw Louisiana Court of Appeals Cases and Opinions. (2023)

The Court is composed of Judge ULYSSES GENE THIBODEUX presiding, Judges SYLVIA​ R. COOKS and ELIZABETH A. PICKETT. Elvin Fontenot, Esq., Leesville, LA, for plaintiff Jerry Vaughn Clifton. Asa Allen Skinner, District Attorney, 30th Judicial District, and Terry W. Lambright, Assistant District Attorney, Louisville, Louisiana, Louisiana Wanted.

fact

In 2001, defendant Jerry Vaughn Clifton allegedly touched the vaginal area of ​​his granddaughter L.G. Eleven years old1In another incident that same year, he allegedly ordered his 6-year-old stepdaughter A.G. to undress her before putting her to bed and licking her vagina and breasts.

On December 13, 2010, the State of New York filed a letter charging defendant Jerry Vaughn Clifton, aka Jerry V. Clifton, aka Jerry Clifton, with six counts of aggravated incest, in violation of La.R.S. 14: 78.1. The state later amended the law by adding language to section 1, striking out section 3, and renumbering sections 4 and 5.

Jury selection began on March 17, 2014 and continued and concluded on March 19. The jury began hearing evidence on the final day. On March 21, a jury found the defendant guilty of the first two charges.

On May 13, 2014, the court sentenced the defendant to 61 consecutive months in prison on each count. The court denied his motion for acquittal and reconsideration of the sentence.

misallocation

1. The trial court improperly denied a defense challenge to juror Christopher Bliss, juror no. 61, and juror Sharon Raetta Harvey.

2. It was wrong for the trial court not to acquit the defendant after the verdict was issued.

3. The sentencing court erred in imposing an unconstitutionally severe sentence.

4. For each patent error on the front of the document.

patent error

Pursuant to La.Code Crim.P. Art. 920, all appeals are reviewed by this court for patent errors on the face of the document. After checking the logs, we found no obvious errors.

ERROR task two

We will deal with the second error first, as it necessarily concerns the adequacy of the test. If the evidence is found to be insufficient, the case must be overturned, so this work must be resolved first. State v. Herold, 603 So.2d 731 (La.1992).

Defendant argued that the district improperly denied his postconviction acquittal. Such motions are governed by La.Code Crim.P. Art. 821(B), which states: "A judgment of acquittal shall be entered only when the court determines that the evidence, in the State's interest, cannot reasonably support a guilty plea."

The analysis of such statements is well settled:

When the question of sufficiency of the evidence arose on appeal, the key question for the RRT was whether any rational fact finder, having considered the evidence in the light of the prosecution, could have discovered the proven essential elements of the crime. beyond reasonable doubt. Jackson v. Virginia, U.S. 443 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, Retrial Denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); status ex rel. Grafano 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 responsibility of the trier of fact to weigh the individual credibility of witnesses, and thus the appellate court should not question the trier of fact's credibility determination outside of a sufficiency assessment 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)). However, in order for this Court to affirm a conviction, the record must reflect that the State has met its burden of proving elements of the offense beyond a reasonable doubt.

State v. State. Kenneth, 96–1518, σελ. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Evidence of aggravated incest was established in La.R.S. at the time of the crime of 2001. 14:78.1, where the relevant part reads:2

A. Aggravated incest means any of the prohibited conduct listed in subsection B with a person under the age of 18 to whom the offender is known to be related to any of the following: child, grandchild of any class, brother, sister, co-father Heterogamous brother, half-sister, uncle, aunt, nephew or niece.

B. The following conduct is prohibited under this Article:

(1) Sexual intercourse, sexual assault, second degree sexual assault, sexual relations with minors, indecent acts against minors, pornography with minors, sexual abuse of minors or persons with a physical or mental disability, crimes against nature, abuse of minors, parental solicitation of a of a child in prostitution or any other sexual activity in which a child is a crime under the laws of this State.

(2) Any indecent caressing or caressing of the face of a child or an offender with the intent to arouse or satisfy the sexual desires of the child, the offender, or both.

The main allegation is that the accused touched the vaginal area of ​​two minor victims, who were his granddaughters. He had other sexual acts with them.

At the heart of the defendants' contention is the incredible inconsistency of the testimony of the State's witnesses. For example, he points to the testimony of A.G. that she initially referred her older friend, Jennifer Behan, to watch sex crime shows. However, Behan testified that they had seen a movie before. The defendant also noted that A.G. she did not report the incident until about nine years after the incident. The defendant also pointed out that A.G. she admitted in taped statements to detectives that she did not like her grandfather and that he did not threaten her to keep her quiet. The defendants also allege that the document shows that investigating detective Rhonda Jordan suggested answers to A.G. during your interview.

Another victim, L.G., initially denied that he was dead when he heard about A.G. During the trial, he explained his refusal by explaining that he was in a state of shock. LG testified that the defendant touched her vaginal area and masturbated three times in front of her.

Defendant described the victim's testimony as ambiguous and cited State v. Wiltcher, 41,981 (La.App. 2 Cir. 9/5/07), 956 So.2d 769, regarding the insufficiency of contradictory testimony to support claims of guilt. We note the language of the case:

Absent internal contradictions or irreconcilable conflicts with the physical evidence, it is sufficient for the trier of fact to rely on the witness's testimony to support the required factual inference. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, brief denied, 2006–1083 (La.11/9/06), 941 So.2d 35.

The judge is responsible for determining credibility and may, within reason, admit or reject the testimony of any witness; the reviewing court may exercise discretion only to the extent necessary to ensure fundamental due process of law. State vs. Casey, 1999–0023 (La.1/26/00), 775 So.2d 1022, cert. Denial, 531 US 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

ID CARD. At 773.

The defendant stated that the diary of L.G. it contained facts of the relevant period but did not mention any offense in question. The accused also noted that the court acquitted him of three charges, arguing that it showed the lack of credibility of L.G. It is equally plausible, however, that the jury's decision to convict on two counts but not the other three demonstrates the jury's careful approach to evaluating the evidence. Moreover, as noted earlier, in Kennerson and Wiltcher, credibility was a matter for the trial investigators.

The Court states:

As noted in Kennerson, the assessment of credibility is a matter for the trier of fact, in this case the jury. The jury may "accept or reject" the testimony of any witness "in whole or in part." State v. Silman, 95–0154, at 12 (La.11/27/95), 663 So.2d 27, 28. Clearly, the jury believed the victim's account of events for which [defendant's] statement did not provide specific reasons. The jury's conclusions should be considered unreasonable. This Court will reverse the jury's assessment of credibility only if the witness's own testimony shows that the witness's ability to comprehend the facts was somehow impaired. See, e.g., State v. Bourque, 94–291 (La.App. 3 Cir. 2/11/94), 649 So.2d 670, in which a witness had been drinking heavily before the crime, another minor believing that all whites looked the same, the defendant is also white.

Country against country. Hypolite, 04–1658, pp. 4–5 (La.App. 3 Cir. 1/6/05), 903 So.2d 1275, 1279, Brief Rejection, 06–618 (La.9/22/06); 937 So.2d 381.

Defendant did not state specific reasons why the jury's credibility assessment in this case was unreasonable. Furthermore, none of the witnesses testified that their perception of events at the time of the relevant events was impaired.

For the above reasons, this commission lacks merit.

ERROR assignment number one

In his first mistrial, defendant contends that the district court improperly denied his peremptory challenges to three members of the venire: Christopher Bliss, “juror No. 61,” and Sharon Raeta Harvey. Citing La.Code Crim.P. Art. 797, said about it:

(2) A jury is not impartial, regardless of the cause of its bias. The opinion or impression of the defendant's guilt or innocence will not by itself be grounds for disqualification from the jury if the defendant states and the court is satisfied that it can reach a just verdict based on the law and the evidence. ;

(3) A relationship by blood, marriage, employment, friendship, or enmity between the juror and the defendant, crime victim, prosecutor, or defense attorney that could reasonably be inferred to influence the jury's verdict [. ]

Further, Defendant noted that a presumption of prejudice existed when Defendant exhausted his peremptory challenges and the trial court erroneously denied a peremptory challenge. State v. Ross, 92–2208 (La.1993), 623 So.2d 643. The record shows that defendant exhausted all of his peremptory challenges. The State invoked another jurisprudence:

If a juror expresses bias against the outcome of the trial, a peremptory challenge must be sustained. State v. Lee, 559 So.2d 1310, 1318 (La.1990). The trial court has broad discretion to hear appeals for cause, and these decisions are reversed only when a review of the entire case record reveals an abuse of discretion. State v. Blank, 04–0204, at 25 (La.4/11/07); 955 So.2d 90, 113; State v. Cross, 93–1189, at 6-7 (A.6/30 /95); 658 So.2d 683, 686–87. An apparently prejudicial answer by a prospective juror is not automatic ground for dissent, nor is it an abuse of discretion for the district judge to deny removing a juror on grounds of impartiality if, upon further questioning, a prospective juror demonstrates willingness and ability. Adjudicating cases fairly and in accordance with the law and evidence. State v. Kang, 02–2812, at 5 (Los Angeles, Oct. 21, 2003); 859 So.2d 649, 653 (citing Lee, 559 So.2d at 1318; State v. Baldwin, 388 So.2d 664 , 671– 72 (La.1980), Certificate Denied, 449 U.S. 1103, 101 S.Ct 901 , 66 L.Ed.2d 830 (1981); State v. Allen, 380 So.2d 28, 300 (La. But even when a prospective juror states that he is competent to be impartial, a peremptory challenge must be granted if the answers of the entire jury disclose facts from which bias, prejudice, or inability to exercise legal judgment may reasonably be inferred.Kang , 02–2812 at 5 , 859 So.2d at 653; State v. Hallal, 557 So.2d 1388, 1389–90 (La.1990).

Country vs. Country. Dorsey, pp. 10-216. 23–24 (La.9/7/11), 74 So.3d 603, 622–23, rev. Refused, -----EE. Good. ---, 132 S.Ct. 1859 (2012).

Regarding Venireman Bliss, defendant noted that he had doubts about his ability to impose a fair sentence. He also said that he has two daughters and that if he heard that "someone touched them [he would] go on trial for murder." We note the last panel of lawyers with Bliss:

[Men. Fonteno, defense attorney:]

Q: It's okay. Do you feel that because of the nature of the charges, you cannot apply the law to this case in which the judge has given you the presumption of innocence?

A: I really don't know.

Q. Well, that was your answer when you were asked earlier. You say: When Mr. Anderson asked you a series of questions, your answer was "I don't know." And, I mean, obviously, we want people to know what they're going to do in a certain way. And... But I understand from what you have told me, Mr. Bliss, that it is very difficult for you to do justice to Mr. ... Mr. Clifton under the circumstances.

Answer: Probably yes.

Q: It's okay. You can't assure me that none of your emotions will influence your decision in this situation, can you?

A: I am - it - it, and this case bothers me. I mean... I hear what's going on.

Q: It's okay. Do you have any family members in law enforcement?

A. Yes, my brother is a police officer in Zwolle.

Q: Are you originally from Sabine Parish?

Answer: Yes, sir.

Q: How long have you been coming to Vernon?

A: About 20 years. When I moved here...

Q: Oh, you've been here a long time.

A. Yes, I moved here with my wife.

Q: How many children do you have?

one two.

Q: It's okay. Now, how old is he?

A. 18 and 9 years old.

Q: It's okay. Is it still at your house?

Answer: Yes, sir.

Andron. fountain:

Mr. Justice Bliss, I have no further questions.

Andron. Anderson [prosecutor]:

Q: Mr. Bliss, thank you for your honesty on this matter. I don't think there is anyone here who doesn't feel the way they would feel if something happened to their child. But that's not a question you should be asking yourself today, what would you do if you were put in that position. What you're here for is, as a juror, to decide, if elected, the guilty or not guilty position of the defense, do you understand that?

Answer: Yes, sir.

Q: A judge will tell you what the law is and tell you what that law is. [A.G.] and [L.G] and the sheriff's department witness, Rhonda Jordan, and all these people -- people have to take the stand and give evidence and testify. Now all I need to know is can you make a decision based on guilt or innocence based on facts from the witness stand and not just accusations and things that offend everyone, I'm sure you too the question is can you be fair Is it impartial to hear the facts and make fact-based decisions from the witness stand?

Answer: Yes.

Q: It's okay. You can put aside the fact that what you hear might upset you, but can you put aside your personal feelings and make a decision based on the facts of the case?

Answer: Yes, sir.

Q: It's okay. Now, did you indicate on the questionnaire that you have two girls, a 9-year-old girl and an 18-year-old girl?

Answer: Yes, sir.

Q: Of course, everyone can understand the concerns of parents in such cases.

Answer: Yes, sir.

Q: But here comes the question again, beyond a reasonable doubt, if the evidence comes from the witness stand, can you assure me that the defendant in this case can come back if you are convinced that he committed this crime? Guilty verdict?

A. Oh, yes, sir.

Q: It's okay.

Andron. Anderson:

Those are all the questions I have about it.

Andron. fountain:

Q: I just have a few... a few questions for Mr. Bliss because... Now, Mr. Bliss, I know you can get a guilty verdict and that's not a problem. We know you - how you feel. But I think the problem is, if the judge told you, if you... you do it for him, now you're telling Mr. Anderson that you can do it. So which, which?

A: I'll have to hear everyone's story because I don't know anyone, not him or anyone else here.

Q: Well, let me ask you a question. Suppose you are sitting in this chair, Mr. Clifton, would you like to be on the jury?

R. No.

Andron. fountain:

I have no more questions.

When defendant later challenged Bliss, the State argued that he had been vindicated. The trial court recalled that it had stated that it could be fair and dismissed the appeal. Defendants then filed a mandatory counterclaim against Bliss. While some of Bliss' responses suggested she had difficulty fairly considering the evidence, her responses to the earlier panel provided reasonable grounds for the court to overrule a challenge for cause. Moreover, we do not find that the District Court abused its discretion. Accordingly, defendant's allegations regarding Bliss are without merit.

"Juror No. 61" was identified in the minutes as Janet Durbin. As the State noted, defendant ultimately accepted Durbin after his challenge was overruled. Records show he also had at least one mandatory plea at the time. Furthermore, after eleven jurors were seated, the court realized that it was a six-member jury. Under the agreement, the court allowed defense attorneys to select six jurors and two alternate jurors from among the 11 jurors who served as jurors. Defense attorneys selected Durbin as one of the six. So your argument against Durbin is without merit.

The third member involved in the mischaracterization of the defendant was Sharon Raetta Harvey. Defendant used his last peremptory challenge to exclude her. She noted that she was friends with the Vernon Parish district attorney and his chief investigator, as well as the parish sheriff. Defendant acknowledged that Harvey said she could be impartial, but argued that this was unlikely because of the friendship just mentioned. Therefore, he argues that the trial court erred in denying him reasonable cause defense. The state noted that Harvey has repeatedly said he will remain impartial. We observed the following chat sessions for your exams:

[host. source:]

Q: I try to stay out of the affairs of those I consider friends or relations. That's what worries me, not that you're going to do something on purpose, but that, in the back of your mind, you know, Asa has a job to do. He sent Mike here to do his job and the Sheriff's Department apparently arrested them, you know, they're connected to… all these people have a stake in the case, you know. Asa brought the case. He -- at this time, he didn't sign the intelligence bill, people in his office signed, but his office decided to make these charges.

Answer: Yes, sir.

Q: Not the Sheriff, but the District Attorney's Office. Well, yes -- they're definitely interested in staying out because they think they have enough evidence to prosecute. So, do you think that creates some kind of conflict for you in some ways?

A. I like to think that I am strong and stubborn enough to have my own opinion, my own decisions. Do I respect the Hagens? Absolutely. Do I respect Asa? Absolutely. But I like to think I'm strong enough to have my own opinion.

Q: And, I guess that's the bottom line, because if, if you can't get beyond a reasonable doubt, the concern is that this relationship might, you know, you know, say that here you are and where is it going to take you--

Answer: Correct.

Q: — Where no decision can be made.

Answer: Correct.

Q: In other words, they wouldn't have brought these charges without it. I mean, you know, Asa is, you know, you know, he's not going to sue somebody for anything. he-

Answer: Yes, sir.

P. Like, as if they accuse you unfairly, unfairly, but not here, but somewhere else.

Answer: Correct.

Q: Well, here's the thing, I mean, I think you're going to do what you think needs to be done to do the right thing. The question is the relationship and the potential implications, if any, which you probably can't tell me as you sit here because you haven't started the case and you don't know what the evidence is.

Answer: Correct.

Q: It's okay. So let me ask you this.

Answer: It doesn't matter.

Q: If you were Mr. Clifton, sitting in the jury box, would you like me to select you as a juror in this case?

Answer: Yes.

Q: It's okay. Fair enough, okay. Thanks. I have no more questions.

Andron. Anderson:

Q. Mrs. Harvey, your son has a pending custody case with his ex-wife, correct?

Answer: Of course.

Q: I represent you, right?

Answer: Yes.

Q. Can you hold up the microphone?

A: Yes, you know.

Q: If you had been selected as a juror and I were the prosecutor in this case, would that affect your decision about what evidence would come from the witness stand?

Answer: Absolutely not. My feelings for her have nothing to do with my feelings for anyone else.

Q: Right. Well, what might have happened to her in that situation has nothing to do with this case, right?

Answer: Correct.

Q: I have been dealing with you for many years, haven't I?

Answer: Yes, sir.

Q: You and I never had any problems, did we?

Answer: No sir.

Andron. Anderson:

I have no more questions.

Given the case law cited by member de venire Bliss at the hearing, the trial court's decision to deny the defendants' motion cannot reasonably be characterized as an abuse of discretion. Therefore, Harvey's veneer argument is without merit.

For the above reasons, this commission lacks merit.

Error distribution number 3

In his third assignment of error, defendant argued that his 61-month sentence was excessive. The sentence range for aggravated incest in 2001 was five to twenty years. The R.S. 14:78.1(iv).3He filed a written motion for reconsideration, claiming his sentence was excessive. The district court denied the motion. The breakdown of the condemnation action is as follows:

Eighth Amendment to the US Constitution and. continuous. Art. I, § 20 Cruel or excessive punishment is prohibited. "The excess of judgment becomes a question of law reviewable under the appellate jurisdiction of this Court." State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (citing State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). However, the trial court has broad sentencing discretion, and absent a clear abuse of that discretion, we would not find the sentence imposed excessive as a matter of law. State v. Pyke, 95–919 (La. App. 3 Cir. 3/6/96), 670 So. 2d 713. The only relevant issue we must consider in our review is not whether resentencing would have been more appropriate, but whether the trial court abused its broad discretion in sentencing defendant. State v. Cook, 95–2784 (La.5/31/96), 674 So.2d 957, cert. Denial, 519 US 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The Fifth Circuit, in Lisotta, 726 So.2d at 58, noted that a reviewing court must consider three factors when reviewing the trial court's sentencing discretion:

1. the nature of the crime,

2. The nature and background of the perpetrator, and

3. Sentences imposed by the same court and other courts for similar crimes.

State v. Whatley, 03–1275, p. 5–6 (La. App. 3 Περ. 3/3/04), 867 So.2d 955, 958–59.

Since the victims were children, the nature of the crime was clearly serious. Regarding the nature of the perpetrator, we highlight the opinion of the sentencing court:

For the court:

very well. As I said, this is No. 80,351, Louisiana v. Jerry Vaughan Clifton. As far as I know, Mr. Clifton is 76 years old. Mr. Clifton was convicted by a jury on March 21 of this year, I believe this year, of two counts of aggravated incest. The facts of the case are that, essentially, in August 2001, Mr. Clifton engaged in a serious act of incest with a child under the age of six who was effectively his granddaughter. That same year, in May 2001, he also had a serious incest with another stepdaughter, who was 11 at the time. As I said, he had a jury trial on March 21st of this year and was found guilty on both counts. At that time I ordered a pre-sentence investigation report. I have received the report and reviewed its contents. I have also considered all the elements of section 894 of the Code of Criminal Procedure. In this case, although there was no financial loss to the victim, it caused great damage and psychological harm to the two young women. I have participated in many sessions where these psychiatrists and psychologists told us that these events left a lifelong imprint on these people. These two young women came to court and testified very bravely, and I applaud them for coming forward and doing that. There is no excuse for the defendant's conduct. He was about 60 or a little older then. The accused was married four times. adult children. His health appears to be poor. He has some extensive medical issues that he has been dealing with for quite some time. To his credit, Mr. Clifton retired from the US Army. He has a distinguished 20-year military career and is a Vietnam veteran. He graduated from high school and completed four years of vocational and technical training, has no history of drug abuse or alcoholism, no history of alcohol or drug treatment, and no criminal record. It's hard to imagine why someone with a past would act like this. Given the seriousness of his actions and the harm he has caused, there appears to be no justification for Mr. Clifton to be brought to trial of any kind. Any sentence below the one I am about to give would seriously diminish the nature of your crime.

So the sentence reads: for each count, Mr. Clifton will serve 61 months in the Louisiana Department of Corrections and Public Safety. Of course, you will be credited for any time served from the date of your arrest, I don't think you have, or even if you do, it's only a day or two. These sentences will run consecutively with each other. Both are separate events and not related other than I believe the two girls are cousins. Of course, this is a sex offense and Mr. Clifton will be subject to sex offender reporting requirements upon his release.

You have been advised that your sentence, in relation to your sentence, may be eligible for a reduction for good behaviour. His sentence was not enhanced under the habitual offender statute or any other Louisiana law. Any appeal in this matter must be made by oral motion in open court or by filing a written motion within 30 days of today's date. Any request for post-conviction relief must be filed within two years of the effective date of the sentence and final judgment.

According to the sentencing court, the defendant's history was positive; your health problems could also be considered mitigating factors. With respect to the final Lisotta/Whatley factor, we note a study of the relevant Fifth Circuit case law:

Second Circuit, in State v. Rubalcava, 28,325 (La.App.2nd Cir. 5 8/96), 674 So.2d 1035, upheld 20 years for defendant for aggravated incest by touching and oral sex with his 8-year-old adopted granddaughter Imprisonment In state v. Blue, 591 So.2d 1173 (La.App. 1st Cir. 1991), the First Circuit held that while the defendant's conduct did not cause any physical harm to the victim, the charge arose from an isolated incident and the defendant had no criminal record. record actions, the 12-year sentence is not excessive for a conviction for sexual abuse of a minor. The trial court noted that the incident had caused emotional trauma to the victim, the defendant's daughter. However, the Louisiana Supreme Court, in State v. Blue, 591 So.2d 1172 (La.1992), reversed, holding that: "The conviction record does not demonstrate sufficient compliance with LSAC.Cr.P. § 894.1 The factual basis for defendant's sentence approaching the maximum sentencing threshold is that the defendant is a first-time offender who has been convicted of an incident of sexual abuse."

In state v. Orgeron, 620 So.2d 312 (La.App. 5th Cir.1993), the Court held that forcible rape was punishable by 20 years imprisonment and hard labor, aggravated verbal sexual assault by 20 years imprisonment, and sexual assault by 15 years imprisonment. Child abuse is not exaggerated. At sentencing, the president noted that the defendant was the victim's stepfather and had authority over him, that the victim suffered severe emotional problems from the beating, and that the defendant's mother learned of the abuse and chose not to do anything. he. Similarly, in State v. Anderson, 95–1688 (La.App.3rd Cir. 8/5/96), 677 So.2d 480, the court held that, for first-time offenders convicted of aggravated incest, two concurrent 15 - The terms of imprisonment years are not excessive. The court in Anderson held that the sentence was not excessive when the victim was the defendant's 14-year-old stepdaughter and some of the acts were committed in the absence of the victim's mother. More recently, in State v. Downs, 30,348 (La.App. 2nd Cir.1/21/98), 705 So.2d 1277, 1279, the Second Circuit held that an offender who sexually abuses a minor child or stepchild, the maximum sentence is appropriate.

State v. Guidroz, 98–377, pp. 18–20 (La.App. 5 Cir. 10/14/98), 721 So.2d 480, 489–90, Brief Denial, 98–2874 (La.2/ 26 /99 ), 738 So.2d 1061. More recently, the court approved sentences of five years for first-time offenders for attempted aggravated incest and five years for sexual abuse of minors. State v. H.A., Sr., at 10–95, pp. 27–28 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 51. These cases demonstrate that defendant's sentence was not nearly excessive. The sentence came very close to the statutory minimum sentence for aggravated incest.

The defendant complained that there was no evidence in the case file that the victim had suffered psychological damage. However, such evidence is not necessary to support near-minimum sentences. The accused had sex with his underage granddaughter. While the extent of psychological damage suffered by each girl is not documented in the records, it did happen.

The defendants did not specifically allege that the sentences were consecutive, but the State noted that the crimes involved different acts against different victims. The audit code is La.Code Crim.P. Article 883 states:

If a defendant is convicted of two or more offenses as a result of the same act or transaction or as part of a common scheme or scheme, the sentences shall be served concurrently unless the court expressly orders some or all of them to be served consecutively. Unless the court expressly orders some or all of them to be served concurrently, the remaining terms of imprisonment will be served consecutively. In the case of simultaneous execution of judgments, the judge will indicate and the court records will record the date on which the judgments must be executed simultaneously.

In Whitley's view, defendant's sentence was not excessive. Therefore, this work lacks merit.

in conclusion

Conviction and sentence affirmed.

confirm.

footnote

1According to La.R.S., the initials were used to protect the privacy of the minor victims. 46:1844 (W). The "L.G." was one of the victims named in the message; he was "LP" at the time of trial.

2The strict incest statute was repealed; these elements now appear in other statutes.

3As noted above, The.R.S. 14:78.1 has been removed.

Pickett, Judge.