State v. Foshee

756 So. 2d 693, 2000 WL 349014
CourtLouisiana Court of Appeal
DecidedApril 5, 2000
DocketCR99-1423
StatusPublished
Cited by12 cases

This text of 756 So. 2d 693 (State v. Foshee) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Foshee, 756 So. 2d 693, 2000 WL 349014 (La. Ct. App. 2000).

Opinion

756 So.2d 693 (2000)

STATE of Louisiana
v.
Gary L. FOSHEE.

No. CR99-1423.

Court of Appeal of Louisiana, Third Circuit.

April 5, 2000.

*694 Paula C. Marx, Lafayette, LA, Counsel for Defendant/Appellant, Gary L. Foshee.

J. Reed Walters, District Attorney, Jena, LA, Counsel for State of Louisiana.

Court composed of Judge ULYSSES GENE THIBODEAUX, Judge OSWALD A. DECUIR and Judge ELIZABETH A. PICKETT.

THIBODEAUX, Judge.

The defendant, Gary L. Foshee, was found guilty by a jury of eleven counts of aggravated incest and sentenced to thirty-six years at hard labor.

Foshee appeals. We affirm.

I.

ISSUES

We shall consider:

1. whether the evidence was sufficient to sustain Gary L. Foshee's eleven convictions of aggravated incest; and
2. whether Foshee's sentences were constitutionally excessive.

II.

FACTS

The victims of this offense are the defendant's two biological daughters. Over a four year period, the defendant had sexual activity with his two daughters who are now ages eighteen and fourteen. According to the record, the defendant began having sexual activity with the elder daughter, M.F., on her twelfth birthday. The younger daughter, D.F., was thirteen years of age when her father sexually molested her.

There were numerous sexual encounters between the defendant and his daughter, M.F. Although no force was used, the sexual intercourse was often rough, with the defendant pulling M.F.'s hair, breasts, and biting her. He would sometimes have sex with her "on her knees."

The sexual abuse continued until M.F. was sixteen years old, when she reported the abuse to her counselor on March 31, 1998. M.F. stated that she did not report the abuse earlier because the defendant had threatened to kill her if she told anyone. She was afraid of the defendant and his violent temper. He had struck M.F.'s mother and brother, and he had also sexually abused her brother since he was three years of age.

On April 16, 1998, Dr. Reneta Pilatova, an expert in pediatrics, examined the girls and obtained a history from them. The condition of M.F.'s genitals was very unusual for her age and was more consistent with what one would find if examining an older, married woman. The doctor admitted that the physical exam could not reveal who had been having sex with the victim.

On May 13, 1998, Gary L. Foshee, was indicted on eleven counts of aggravated incest, in violation of La.R.S. 14:78.1(A) and (B)(1). He pled not guilty on May 26, 1998. Foshee was tried by a six-panel jury on February 2, 1999 and was found guilty as charged. He was sentenced on March 31, 1999 to the following:

a) Count 1: eighteen years at hard labor
b) Count 11: eighteen years at hard labor, consecutive to count 1
c) Counts 2, 3, 4: six years at hard labor, consecutive to each other and concurrent with count 1
d) Counts 5, 6, 7: six years at hard labor, consecutive to each other and concurrent with count 1
e) Counts 8, 9, 10: six years at hard labor, consecutive to each other and concurrent with count 1

III.

LAW AND DISCUSSION

Sufficiency of the Evidence

Gary Foshee contends there was insufficient evidence upon which to base *695 his eleven convictions of aggravated incest, ten involving M.F., and one involving his younger daughter, D.F. It is unclear which counts he is specifically challenging. Foshee concedes that the State proved three counts of aggravated incest at trial; however, he challenges the other convictions, arguing that those resulted from him being found guilty by association. He argues that M.F. could not remember details on the other seven counts, and could remember dates only after coaching by the prosecution.

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. State v. Lambert, 97-64, pp. 4, 5 (La.App. 3 Cir. 9/30/98); 720 So.2d 724, 726-727, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In this case, a rational trier of fact rightfully concluded that the defendant, Gary L. Foshee, committed aggravated incest with his two daughters.

Louisiana Revised Statutes 14:78.1(A) and (B)(1) defines aggravated incest as follows:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, aggravated sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

The State's evidence was sufficient to find Foshee committed aggravated incest with his biological daughters. Regarding Count 11, D.F.'s testimony revealed that her father sexually battered her by touching her vagina with his penis on March 18, 1998 while her mother was attending a prayer meeting. The defendant impelled her to lie down on his bed and he put "some kind of Vaseline" on her and told her he was going to "loosen" her up with his fingers. He tried to force his penis into his daughter's vagina, but he could not penetrate her. Upon failure to penetrate D.F., the defendant slapped her in the face, causing her to run from the room in tears. M.F. was present in the bedroom and witnessed this occurrence.

D.F. testified that her father made her watch him having sexual intercourse with her sister numerous times. D.F. also testified that her father had sex with her sister at least three times a week and often before they went to school in the morning. When D.F. told her mother about the abuse, the mother confronted her husband and demanded that the actions stop. The defendant then grabbed the mother by the throat and told her that he was not going to stop. D.F. was age twelve at the time of the incident.

Sexual battery, which is specifically listed as an element of aggravated incest, is defined in La.R.S. 14:43.1 as follows:

A. Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
*696 (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mace
258 So. 3d 658 (Louisiana Court of Appeal, 2017)
State of Louisiana v. Christopher Shon MacE
Louisiana Court of Appeal, 2017
State v. Barnes
103 So. 3d 1254 (Louisiana Court of Appeal, 2012)
State of Louisiana v. Emmanuel Barnes
Louisiana Court of Appeal, 2012
State v. E.J.F.
999 So. 2d 224 (Louisiana Court of Appeal, 2008)
State of Louisiana v. E. J. F.
Louisiana Court of Appeal, 2008
State v. P.T.
970 So. 2d 1255 (Louisiana Court of Appeal, 2007)
State of Louisiana v. P. T., Sr.
Louisiana Court of Appeal, 2007
State v. J.M.
941 So. 2d 686 (Louisiana Court of Appeal, 2006)
State of Louisiana v. J. M.
Louisiana Court of Appeal, 2006
State v. JTS
865 So. 2d 1032 (Louisiana Court of Appeal, 2004)
State of Louisiana v. J.T.S.
Louisiana Court of Appeal, 2004
State v. Guerra
834 So. 2d 1206 (Louisiana Court of Appeal, 2002)
State v. Craft
796 So. 2d 907 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
756 So. 2d 693, 2000 WL 349014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foshee-lactapp-2000.