author: PAINTER, Judge.

text:
    R. Chadwick EDWARDS, Jr. v. LAROSE SCRAP & SALVAGE, INC.
    No. 10-596.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      R. Chadwick Edwards, Attorney at Law, Abbeville, LA, for Plaintiff/Appellant, R. Chadwick Edwards.
    J. Isaac Funderburk, Attorney at Law, Abbeville, LA, for Defendant/Appellee, La-rose Scrap & Salvage, Inc.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| ¶Plaintiff, R. Chadwick Edwards, Jr. (Edwards), appeals the dismissal of his suit for defamation/malicious prosecution on summary judgment. For the following reasons, we reverse the trial court’s grant of summary judgment in favor of Defendants, Larose Scrap & Salvage (Larose) and Paul Cummings, and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Larose filed a petition for declaratory judgment and for damages. In the course of those proceedings, Edwards, as a corporate officer of Larose, was deposed. Based on statements made in that deposition, Larose amended its suit to include claims against Edwards. Specifically, Larose alleged that Edwards committed fraud due to the sale of property to Larose which neither Edwards nor his company owned. All causes of action asserted against Edwards were ultimately dismissed. Thereafter, on December 2, 2009, Edwards filed suit against Larose and Cummings, alleging malicious prosecution and defamation. Larose and Cummings filed peremptory exceptions of no cause of action. Next, Larose and Cummings filed a motion for summary judgment alleging that Edwards’ allegations lacked factual support and that there were no genuine issues of material fact. Attached to the motion was Edwards’ deposition, taken on March 3, 2006, in the other suit. Edwards countered with a motion for default judgment based on the fact that neither Larose nor Cummings had filed an answer. The motion for default judgment was denied. Edwards also filed a motion to strike the use of his prior deposition, asserting that a motion for summary judgment may not be supported with a deposition from another case. Following a hearing, the motion for summary judgment filed by Larose and Cummings was granted, and Edwards’ suit was dismissed. There were no rulings on the exceptions of no cause of action.

Edwards now appeals the trial court’s grant of summary judgment, asserting that the trial court erred: (1) in refusing to strike his deposition taken in another matter; (2) in allowing evidence to be presented in support of an affirmative defense 12which was not asserted in any pleading; (3) “in reaching factual legal conclusions as to the affirmative defenses which had not been raised;” (4) in reaching factual conclusions as to subjective facts upon which a jury could have reached a different conclusion; (5) in failing to accept as true all of the allegations contained in the petition which were supported by affidavit and not denied by answer; (6) in finding that facts constituting negligence supported the filing of pleadings alleging fraud; and (7) in finding an absence of material facts on the question of the reasonableness of an assertion of fraud.

We agree with Edwards that the trial court improperly considered a collateral deposition. Accordingly, we reverse the trial court’s grant of summary judgment in favor of Larose and Cummings and remand the matter to the trial court for further proceedings.

DISCUSSION

We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. That means that, using the same criteria applied by the trial court, we must determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La. Code Civ.P. art. 966(B) and (C). The mover bears the initial burden of proof and must show that no genuine issue of material fact exists.

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Thus, summary judgment is apropos when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts.
Facts are material if they determine the outcome of the legal dispute. The determination of the materiality of a particular fact must be made in light of the relevant substantive law.

Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, pp. 4-5 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, 1288, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195 (footnotes omitted). However, La.Code Civ.P. art. 966(C)(2) provides, in pertinent part, that:

[i]f the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In this case, we are also guided by the principals set forth in Brittain v. Family Care Services, Inc., 34,787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460:

Even though the summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Oaks v. Dupuy, 32,070 (La.App.2d Cir. 8/18/99), 740 So.2d 263, (citing Greer v. Dresser Industries, Inc., 98-129 (La.App. 3d Cir.7/1/98), 715 So.2d 1235). One reason is that these subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Id. Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts.

We also note that La.Code Civ.P. art. 966(A) provides that a defendant’s motion for summary judgment may be made at any time. There is no requirement that an answer be filed prior to defendant’s motion for summary judgment. However, we agree with Edwards that the trial court improperly considered his deposition that was taken in the other litigation. This court has held:

Depositions in other proceedings can be used for other purposes, such as impeachment. Depositions in other proceedings are, however, collateral depositions and are not depositions “on file” for use in summary judgments as required by La.Code Civ.P. art. 966(B) and should not be considered in a motion for summary judgment

Bell v. Gold Rush Casino, 04-1123 (La.App. 3 Cir. 2/2/05), 893 So.2d 969.

Defendants are clear in their assertion that the March 3, 2006 deposition contains an admission by Edwards that he did not know who owned the property in dispute in the other litigation. Defendants further assert that this admission negates any cause of action Edwards may have for defamation and malicious prosecution. ^Furthermore, the trial court stated: “Well, based off your deposition alone, I think there’s no genuine issue of material fact, and I’m going to grant the Motion for Summary Judgment on both.” We find that the trial court erred in basing its decision on the collateral deposition of Edwards. The summary judgment must, therefore, be reversed.

DECREE

For all of the foregoing reasons, we find that the trial court improperly granted summary judgment in favor of Larose and Cummings. Costs of this appeal are assessed to Defendants/Appellees, Larose Scrap & Salvage, Inc., and Paul Cummings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. AMY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Arthur J. HANDY aka Arthur G. Handy, aka Arthur James Handy, aka Arthor James Handy, aka Arth Handy.
    No. 10-625.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Michael Harson, District Attorney, Allan P. Haney, Assistant District Attorney, Lafayette, LA, for Plaintiff'Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Arthur J. Handy.
    Arthur James Handy, Ferriday, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|, Arthur James Handy was charged with possession of methylenedioxymethamphe-tamine (MDMA), a violation of La.R.S. 40:966. He was also charged as a habitual offender. Handy pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The trial court adjudicated Handy a third felony offender and sentenced him to life imprisonment without the benefit of probation, parole, or suspension of sentence. Handy appealed, claiming the trial court erred by denying his motion to suppress the evidence found during a search of his person. Because this court concludes that the search was unconstitutional, we find that the trial court erred by denying Handy’s motion to suppress. We, therefore, reverse Handy’s conviction and adjudication as a habitual offender, vacate Handy’s sentence, and remand the matter for further proceedings.

I.

ISSUE

We shall consider whether the trial court erred by denying Handy’s motion to suppress the evidence found in his buttocks, where the police did not see that Handy engaged in any illegal activities, did not think that he had a weapon, and did not feel any weapons or contraband on him during a pat-down. The police conducted an invasive search after perceiving an odor of burnt marijuana in the vicinity of Handy’s residence. The police observed what appeared to be a gambling activity, chased another person who, upon seeing the police, ran with a bag containing drugs, and observed that Handy clenched his fist and placed his hand inside of his pants.

J2.IL

FACTS

Agent Mike Boutte testified he was patrolling the area of Plumb Street, which is a high-crime area, when he perceived an odor of burnt marijuana. Agent Boutte observed ten to twenty people, some of whom, with money in hand, were shooting dice under a carport approximately ten or fifteen feet from the road. Agent Boutte began an investigation because of the marijuana smell and because of his observation of gambling, although he was not sure that the group was gambling. The police did not see that Handy was shooting dice, smoking marijuana, or breaking the law in some other manner. No marijuana was found at the residence.

When Agent Boutte arrived at the residence, Demmick Brown picked up a plastic grocery bag and ran toward the back yard. Agent Boutte pursued Brown. As Brown ran, he threw the bag toward the house and jumped over the fence. The bag contained bottles filled with, what was later determined to be, liquid codeine.

When later Agent Boutte was gathering information from the people present, Officer Todd Borel told him that Handy had placed something in the rear of his pants. Agent Boutte testified he was “possibly” concerned about his safety when he went over to Handy as Handy could have been hiding anything from a knife to a screwdriver or even a small handgun, and it was common to find illegal substances in a person’s pants.

Agent Boutte checked Handy’s pockets and found nothing. Agent Boutte did not feel anything like narcotics during the frisk. Nevertheless, Handy was tensed up and extremely nervous. Agent Boutte then looked down Handy’s pants, using a flashlight, and observed a plastic bag between the cheeks of Handy’s |sbuttocks. Agent Boutte directed Handy to retrieve the bag, and Handy complied. The bag contained two pills.

Officer Borel testified that he smelled burnt marijuana at the residence. He observed that Handy placed an object inside the buttocks area of his pants but did not see that Handy engaged in any other suspicious or criminal activity. Officer Borel did not observe anything that resembled a weapon and did not know what Handy had in his hand. He further testified: “I didn’t believe that he placed a weapon in the back of his pants.” When asked if he observed anything that would constitute a plastic bag, Officer Borel stated, “I saw just his hand clench and him go on the inside of his pants.” He then told Agent Boutte what he saw.

III.

STANDARD OF REVIEW

The State bears the burden of proving the admissibility of the evidence seized without a warrant. La.Code Crim.P. art. 703(D). “A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion.” State v. Hunt, 09-1589, p. 7 (La.12/1/09), 25 So.3d 746, 752 (citing State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert. denied, — U.S.-, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008)).

IY.

LAW AND DISCUSSION

An officer may stop a citizen in a public place and question him. La.Code Crim.P. art. 215.1. Nevertheless, the right to make such an investigatory stop must be based upon a reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). If an officer reasonably suspects that he is in danger when he stops a person, the officer may frisk the outer clothing of the person for weapons. La. Code Crim.P. art. 215.1(B).

When there is no probable cause to arrest, to make an investigatory stop the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). There must be more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (citation omitted). “This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.” State v. Temple, 02-1895, p. 4 (La.9/9/03), 854 So.2d 856, 860. Whether the police had the objective basis for an investigatory stop, reviewing courts look at the totality of the circumstances of each case. Id. (citations omitted). The courts must note that police officers use their experience and training to make deductions from the cumulative information available to them which may elude an untrained person. Id. (citations omitted).

“The assessment by a reviewing court of the cumulative information known to the officers avoids a ‘divide-and-conquer analysis’ by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear ‘readily susceptible to an innocent explanation.’ ” Id. (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740(2002)). In making a determination about reasonable suspicion, the reputation of an area is an articulable fact and, therefore, is relevant. State v. Buckley, 426 So.2d 103 (La.1983) (citations omitted).

| ¿Finally, if the protective frisk is justified, and during the pat-down the officer

feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Temple, 854 So.2d at 862 (quoting State v. Broussard, 00-3230, pp. 7-8 (La.5/24/02), 816 So.2d 1284, 1289).

For example, in Temple, 854 So.2d 856, police responded to a call regarding an attempted burglary by four individuals. Police canvassed the front and rear of the apartment building in question and found four individuals sitting on a porch step. One of the individuals quickly leaned against the wall when he saw the police. The only female in the group sat down and the defendant sat next to her. Police then saw that the defendant handed a white object to the female, which she placed in her pocket and then attempted to walk away. At that point, the police detained the group. A pat-down of the female revealed 141 pieces of rock cocaine and sixty bags of powder cocaine.

The supreme court noted that none of the officers expressed any concern for his safety, which would justify a protective frisk. Moreover, even if the pat-down were justified, no evidence indicated that the content of the female’s pocket was readily identifiable by the “plain feel.”

The supreme court then distinguished the case from Broussard, 816 So.2d 1284. There, the officer testified he knew, based on his knowledge and experience as a narcotics officer, that narcotics and firearms have a known association. Thus, the officer’s expression of concern for his own safety and that of the other officers provided an articulable basis for a protective frisk. During that pat-plown, the officer felt lumps and heard the crinkle of plastic from the defendant’s pocket, which he knew, from his years of experience, to be consistent with drug packaging of crack cocaine. Therefore, in that case, the evidence was obtained by lawful means.

On the other hand, in Temple, 854 So.2d 856, the testimony of the officer who searched the female was devoid of any description of her pat-down and of any perceptions she may have had during the pat-down. The officer did not state that she saw or felt any lumps or that she heard the crinkle of plastic coming from the female’s pocket. Therefore, there was no support for the “plain feel” exception.

Moreover, there was nothing to justify a search incident to an arrest, as the facts did not give rise to probable cause to make an arrest. The officer who observed that the defendant placed a white object into the female’s hand or pocket admitted that he could not tell that the white object was contraband.

In State v. Thomas, 08-521 (La.App. 5 Cir. 1/27/09), 8 So.3d 646, writ denied, 09-391 (La.12/18/09), 23 So.3d 928, the defendant and another individual were loitering in a high-crime area in front of a building posted with a “no loitering” sign. The defendant was waving or flagging down people. As the police approached, the defendant made a quick sweeping motion as he was reaching for something under his shirt, turned, and began walking away. The police subsequently stopped the defendant.

During the pat-down, the officer felt a large bulge in the defendant’s pocket that did not feel like a weapon. The bulge was not clearly identifiable as contraband. The police retrieved the item and determined that it was marijuana. The police then felt a hard object in the defendant’s back waistband, which was a gun.

|7The court found that, under the circumstances, the officers’ belief that there was a substantial possibility of danger was warranted. Therefore, a pat-down was proper. Nevertheless, the court found that the entry into the defendant’s pocket and retrieval of the item exceeded the scope of a valid Terry pat-down.

In another case, the court reversed the defendant’s conviction for possession of crack cocaine where the police observed that the defendant placed something white in his pocket and then hurried to a nearby grocery. State v. Hughes, 99-2554 (La.App. 4 Cir. 5/31/00), 765 So.2d 423, writ denied, 00-1981 (La.6/1/01), 793 So.2d 179. There, the officers did not testify that the area involved was known for drug-trafficking. Moreover, the officer conceded that he thought the defendant was involved in drug activity based on his nineteen years of experience as a police officer. The court found that this amounted to little more than a hunch.

Similarly, the court affirmed a grant of a motion to suppress where the police officer saw the defendant standing in an area known for high drug activity, and, upon seeing the police car, he put his hands in his pockets as if attempting to conceal something. State v. Ellington, 96-766 (La. App. 4 Cir. 9/4/96), 680 So.2d 174. The pat-down search of the defendant revealed a folding knife in his pocket. Then, the officer shined a flashlight into the same pocket and found a glass vial containing cocaine residue. The court concluded that the particular facts of the case were insufficient to justify the stop. The court further reasoned that even if the initial stop were justified, the subsequent search was not because La.Code Crim.P. art. 215.1 only allowed a frisk of outer clothing for a dangerous weapon.

Here, the State asserts that Agent Boutte had observed illegal gambling and smelled marijuana when he passed Handy’s residence. When the police approached the house, an individual ran from the officers and possessed what they 18suspected was codeine. Handy was then observed placing something into the back of his pants. The State asserts that Agent Boutte gave particularized reasons for why he felt his life might have been in danger. The State also asserts that Agent Boutte recognized Handy’s actions as an immediate danger to both himself and his fellow officers.

We note that Agent Boutte did not testify that he regarded Handy’s actions as an immediate danger to himself or others. We also note that Agent Boutte did not actually observe that Handy put his hand down the back of his pants. Officer Borel made this observation.

Further, there was no evidence at the hearing that Handy was dealing drugs. The police did not see that Handy was shooting dice, smoking marijuana, or breaking the law in some other manner. Apart from seeing the gesture, the police did not observe that Handy engaged in any other suspicious or criminal activity. The officer who observed that Handy placed something in the back of his pants did not think he was hiding a weapon. Finally, the protective frisk revealed nothing that could have been perceived as a weapon or contraband.

This court concludes that the pat-down in this case was improper. Officer Borel did not think Handy had a weapon, nor did he observe a weapon. He “saw just his hand clench and him go inside of his pants.” Even if the pat-down were warranted, Agent Boutte’s act of peering in Handy’s pants with a flashlight exceeded the scope of a pat-down permitted by Terry. Agent Boutte checked Handy’s pockets and felt nothing. Additionally, he did not feel anything that felt like narcotics during the frisk. Based on the testimony and the cases discussed above, the pat-down and Agent Boutte’s act of peering in Handy’s pants were improper.

|9The threshold for probable cause is higher than the one for a Terry stop and frisk. Because we conclude that even a Terry frisk was unwarranted in this case, we need not address the State’s argument that Agent Boutte had probable cause to arrest Handy. Furthermore, the above-discussed jurisprudence provides more than sufficient guidance on personal searches. Therefore, contrary to the State’s suggestions, this court need not resort to the jurisprudence from the other states or to the jurisprudence on warrant-less searches of vehicles.

V.

CONCLUSION

For the reasons above, the trial court erred by denying Handy’s motion to suppress. Accordingly, Handy’s conviction and adjudication as a habitual offender are reversed, his sentence is vacated, and the matter is remanded for further proceedings.

CONVICTION AND ADJUDICATION REVERSED; SENTENCE VACATED; CASE REMANDED.

AMY, J., concurs in the result and assigns separate reasons.

AMY, J.,

concurs in the result and assigns separate reasons.

hi agree with the majority’s determination that the trial court abused its discretion in its ultimate denial of the motion to suppress. However, I find that the record supports the trial court determination that the totality of the circumstances in this case justified an initial stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and La.Code Crim.P. art. 215.1. In short, the officers were located in an area known for criminal activity, they detected the smell of marijuana, another person at the house discarded a bag and jumped the fence in order to flee, and one of the officers saw the defendant place something into his pants.

However, I find that these facts only support the initial, investigatory detention and pat down search. I find no indication in the record that this officer had reasonable suspicion that the defendant possessed a dangerous weapon to justify this type of further, intrusive search of his person, i.e., the use of a flashlight to peer inside the defendant’s clothing in the area of his buttocks. See La.Code Crim.P. art. 215.1(B). Accordingly, I find that the ultimate retrieval of the evidence exceeded permissible bounds and required a granting of the motion to suppress.

For these reasons, I concur in the result.


author: DECUIR, Judge.

text:
    Nolton F. SEMIEN v. THE GEO GROUP, INC.
    No. 10-642.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Samuel B. Gabb, Plauche, Smith & Nies-et, L.L.C., Charles, LA, for Defendant/Ap-pellee, The Geo Group, Inc.
    Paul F. Bell, Bell Law Firm, LLC, Baton Rouge, LA, for Plaintiff/Appellant, Nolton F. Semien.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   DECUIR, Judge.

Bin this suit for payment of unused Paid Time Off and Long Term Illness time, Nolton Semien appeals a trial court judgment relieving The GEO Group, Inc. of liability for such payments.

FACTS

Nolton Semien (Semien) was employed by The GEO Group, Inc. (GEO) from March 1994 through February 3, 2009. In October, 2008, GEO announced a change in its policy regarding time off. Beginning on December 29, 2008, the GEO Employee Handbook provided that:

PTO [paid time off] is a benefit that combines elements of the former Vacation and Sick Leave. At the beginning of each fiscal year, eligible full time employees will be granted PTO, ... which must be used during that year or it will be forfeited!.] • • • PTO days are not paid out upon termination.

Similarly, Long Term Illness (LTI) was granted to allow additional time off “in the event of illness that lasts more than two consecutive days.” Semien received and acknowledged notice of these changes. Moreover, anticipating the change, in November 2008, Semien used all of the remaining vacation hours that he had accrued under the former vacation policy which allowed workers to accrue time based on hours worked.

In accordance with the new policy, Sem-ien was granted PTO and LTI benefits on December 29, 2008. On January 27, 2009, he was terminated. Semien filed this suit to recover payment for unused PTO and LTI. The trial court found no payment was owed by GEO. Semien lodged this appeal.

DISCUSSION

Semien contends that the trial court erred in concluding that GEO properly withheld wages and that La.R.S. 23:631 and La.R.S. 23:634 do not apply. Semien 1 aalso contends the trial court erred in failing to award penalties, attorney fees and costs under La.R.S. 23:632. We disagree.

An employer must pay a discharged employee “an amount due under the terms of employment” or “wages.” La.R.S. 23:631. In addition, an employer cannot require forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy. La.R.S. 23:631, La. R.S.23:634.

The key question in this case is whether Semien’s Paid Time Off (PTO) and Long Term Illness (LTI) are “an amount due under the terms of employment” or “wages” and more particularly were they “earned” by Semien.

“We review this matter under the manifest error standard; thus, we may not set aside the trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong.” Kately v. Global Data Systems, Inc., 05-1227, p. 2 (La.App. 3 Cir. 4/5/06), 926 So.2d 145, 147 (citing Picard v. Vermilion Parish Sch. Bd., 98-1933 (La.App. 3 Cir. 6/23/99), 742 So.2d 589, writ denied, 99-2197 (La.11/19/99), 749 So.2d 675, and Fontenot v. Ryder Truck Rental, Inc., 03-1129 (La.App. 3 Cir. 3/24/04), 869 So.2d 330). Where the appeal involves a conclusion of law, the appellate court must determine whether the trial court correctly decided the legal issues in dispute. Senousy v. Senousy, 05-198 (La.App. 3 Cir. 6/1/05), 905 So.2d 461, writ denied, 05-2073 (La.2/10/06), 924 So.2d 169.

In Kately, the court said:

Generally, “[v]acation pay is considered to be wages for the purposes of La.R.S. 23:631.” Picard, 742 So.2d at 591 (citations omitted). However, “where an employer has a clearly established policy that vacation time is not considered wages for the purposes of La.R.S. 23:631(D)(2), an employee is not entitled to reimbursement for unused, accrued vacation time.” Id. at 591 (citing Huddleston v. Dillard Dept. Stores, Inc., 94-53 (La.App. 5 Cir. 5/31/94), 638 So.2d 383). This court has previously held that:
|s[I]n the absence of a clear, written policy establishing that vacation time granted by an employer to an employee is nothing more than a mere gratuity and not to be considered an amount due or a wage, accrued but unused vacation time is a vested right for which an employee must be compensated upon discharge or resignation.
Id. at 595-96. Moreover, any ambiguity will be interpreted against the employer. Fontenot, 869 So.2d 330 (citing Baudoin v. Vermilion Parish Sch. Bd., 96-1604 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La.6/20/97), 695 So.2d 1358).

Kately, 926 So.2d 145, 148.

In this case, the trial court found that GEO’s policy clearly distinguished between vacation and sick leave under the old policy and PTO and LTI under the new policy. The court also found that GEO’s new policy unambiguously provided that PTO and LTI were “granted” as a benefit by GEO and not “earned” by the employee. Moreover, a review of Semien’s final pay stub reveals balances for PTO and LTI consistent with the implementation of that policy. The record establishes that Semien was aware of the change in policy and took steps to avoid losing time accrued under the prior policy. Accordingly, the court found that Semien was not entitled to payment for his unused PTO and LTI. Likewise, the court found that no penalties, attorney fees or costs were due to Semien. After reviewing the record, we find no manifest error in the trial court’s factual determination that GEO was not required to pay Semien for the unused PTO and LTI, nor its legal conclusion that La.R.S. 23:681, La.R.S. 28:632, and La.R.S.23:634 were inapplicable.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Nolton Semien.

AFFIRMED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. A.B.M., Jr.
    No. 10-648.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      W. Jarred Franklin, Louisiana Appellate, Bossier City, Louisiana, for Defendant/Appellant, A.B.M., Jr.
    James C. “Jam” Downs, District Attorney — Ninth Judicial District, Michael W. Shannon — Assistant District Attorney, Alexandria, Louisiana, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

hln 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., 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.

| .ASSIGNMENTS OF ERROR

Defendant alleges that “[tjhere is insufficient evidence to prove the guilt of Defendant for the offense of molestation of a juvenile beyond a reasonable doubtf,]” 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.

IsDefendant 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 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.

| ñC.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. 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.

| fiWithout there being internal contradiction or irreconcilable conflict with physical evidence, we find KM.’s testimony alone is sufficient to establish the elements of molestation of a juvenile. Further, the veracity of KM.’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), “[ajlthough 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 17fish, 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 | sher 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 |ssimilar 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 fíne of not more than ten thousand dollars, or both. 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 | inDefendant 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 | ngive 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 |12thirty-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 | iatrial 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.

J^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.

11sThe 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.

hfiln 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.

INDISPOSITION

Defendant’s conviction for molestation of a juvenile is affirmed. Defendant’s sentences for molestation of a juvenile and incest are likewise affirmed.

AFFIRMED.

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

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

      . 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).