author: PLEUS, J. SHARP, W. J.,

text:
    Joan EWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3067.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

Joan Ewell appeals her judgment and sentence for violation of probation. We reject her argument that the trial court abused its discretion in finding that she had the ability to pay restitution and willfully failed to do so. We do find, however, that the trial court’s upward departure sentence is not supported by substantial competent evidence. Accordingly, we affirm the judgment but reverse the sentence and remand for imposition of a guidelines sentence.

Ewell argues that the court erred in upwardly departing from the sentencing guidelines. The state fails to address this argument. It simply states:

The trial court submitted two reasons, via oral and written pronouncements, for his decision to depart from the sentencing guidelines: escalating pattern of criminality; and fraudulent use Of medical reports to facilitate continued criminal conduct. (R 85). The trial court, therefore, decided that there were two valid reasons for the departure sentence and that the departure sentence was appropriate in Appellant’s case.

Although the state does not concede error, the trial court did. In its untimely Order Correcting Sentence, the judge conceded that the reasons he gave for upwardly departing were improper and that there was no valid basis for departure. He attempted to re-sentence Ewell within the guidelines but this court denied her motion to relinquish jurisdiction.

We agree with Ewell and the trial court. Her prior record did not constitute an escalating pattern of criminal conduct. See Tessier v. State, 730 So.2d 761 (Fla. 5th DCA 1999). Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. Id. Like the defendant’s record in Tessier, Ewell’s record displays a pattern of criminal conduct, but not an escalating pattern.

Nor was there evidence to support the court’s finding that Ewell fraudulently used medical reports to facilitate criminal conduct. The only evidence presented was Ewell’s testimony that she was ill, her probation officer’s testimony that she was ill and the medical reports. At the hearing, the judge stated that he chose not to believe Ewell’s testimony and that it appeared to him that she was a professional con woman who conned doctors and used that as a license to steal. The judge later conceded this finding was error. Accordingly, Ewell’s sentence is reversed for imposition of a guidelines sentence.

The next issue raised on appeal concerns scrivener’s errors and the allegedly improper combination of consecutive sentences on multiple counts within a general order. Ewell argues that the judgment is flawed because it reflects the wrong attorney representing her and it reflects that she pled guilty to the violations when, in fact, she contested the violation but was found guilty after a hearing. The state correctly asserts that these errors do not affect the sentence and do not require reversal. However, because the sentence was illegal and requires reversal anyway, the judgment should be corrected on remand. See Bell v. State, 798 So.2d 796 (Fla. 4th DCA 2001); Hill v. State, 796 So.2d 564 (Fla. 3d DCA 2001).

Ewell also argues that combining multiple sentences for multiple counts on a single page of a general sentencing order is improper. This argument lacks merit. General sentences are those which impose a single sentence for multiple counts. For example, imposing a sentence of ten years incarceration for two counts is a general sentence. General sentences are prohibited. Parks v. State, 765 So.2d 35 (Fla.2000). However, the lower court, both orally and in writing, sentenced Ewell to two consecutive terms of five years in prison on counts one and two, for a total of ten years. This sentence was not a general sentence.

We affirm the judgment but reverse the sentence and remand for imposition of a guidelines sentence.

JUDGMENT AFFIRMED; SENTENCE REVERSED, REMANDED.

PETERSON, J., concurs.

SHARP, W., J., concurs in part and • dissents in part, with opinion.

SHARP, W. J.,

concurring in part; dissenting in part.

I agree with the majority opinion that the record does not support the trial court’s upward departure sentence based on its finding of an escalating pattern of criminal activity. The judge stated that Ewell had committed fraudulent use of medical reports to facilitate criminal activity. This finding was completely unsupported by the evidence and could only have been premised on the judge’s disbelief of Ewell’s medical testimony.

However, I respectfully disagree with the majority opinion that Ewell had the ability to pay her restitution. The record does not support that finding either and, in all fairness, Ewell’s revocation of probation for failure to pay restitution should be reversed.

In 1998, Ewell was convicted and sentenced for numerous felonies in six different Central Florida counties. She was ordered to pay restitution and to perform community service, which was supervised by Citrus County.

In 2000, Ewell’s former probation officer, Linda Tew (Tew) filed a technical violation of probation with Judge Blackstone. Tew stated in her report that Ewell had paid a total of $1,471 in restitution; the majority of which was paid to other counties, not Citrus. Tew also said that Ewell’s income was $946.00 per month, which came from a part time job and her social security disability:

[ Wjhich has made the subject unable to complete more community hours and pay a larger portion of her restitution. Additionally, the subject has been diagnosed with breast cancer approximately three (3) months ago and has been going under [sic] chemotherapy. She is scheduled to go under [sic] radical mastectomy in the next week, but continues to do the best she can. In spite of her weakened condition the subject still has maintained her part time job .... (emphasis added)

Tew recommended that no action be taken against Ewell and none is reflected in this record.

In 2002, Ewell was .brought before Judge Howard on violation of probation charges that she had failed to pay the restitution ordered and had failed to perform community service. At the 2002 hearing, Ewell testified that she is under medical supervision for breast cancer and a heart condition (tachycardia). She also has sugar diabetes and, as a result of a nervous breakdown in 1990, continues to take medication to stabilize her for depression. She has had a mastectomy and chemotherapy and her medical oncologist told her not to work. He instructed her to get a lot of rest, watch her diet carefully, and strictly take tamoxifen twice a day.

Ewell testified she has been receiving social security disability ($479.00 per month) since 1995 because she cannot handle stress and could not keep a job. For a while she had been driving a cab part-time. Ewell also receives alimony ($100.00 per month) and child support ($446.00 per month) for her seventeen-year-old daughter. As Judge Howard noted, Ewell’s total monthly income was $1,025.00, and her mortgage payment was $441.00 per month.

Ewell’s probation officer, Delaine Rol-lenhagen (Rollenhagen) testified that Ewell had been placed on probation on August 12, 1998. She was required to pay restitution to two Citrus County victims: Helen D’Angelo in the sum of $100.00; and the Greenwood Trust Co. in the sum of $6,607.56. Rollenhagen said that Ewell still owed D’Angelo $1.12 and Greenwood Trust $6,536.37.

Rollenhagen said Ewell had completed no community service hours because she has multiple medical problems for which Ewell had provided medical documentation. Rollenhagen testified that there was no community service Ewell could perform in Citrus County because the approved community service work place list indicated no office positions. Most employers were looking for manual labor, which Ewell is unable to perform. Rollenhagen said the approved work sites do not need anyone with the type of volunteer skills Ewell can perform. Rollenhagen concluded that she believed Ewell had tried to comply with the community service work hours, but that her medications prevent her from doing so.

Rollenhagen said Ewell was good about keeping in touch with her and making all her appointments. She also made a $50.00 monthly payment each month, although that amount did not meet her monthly payment schedule. Rollenhagen testified that the total monthly payment Ewell was required to make was about $2,000 a month, because she owes restitution to other counties besides Citrus.

During the hearing, the judge asked Ewell what she had done with the proceeds of her “criminal activities.” She said she bought groceries and paid her mortgage. He elicited the information that Ewell had refinanced her home in 1999, from which she received $7,000. She explained that she put a down payment on a 1984 vehicle because she lost her previous vehicle when she could no longer make the payments. Her current vehicle’s air conditioning does not work and the windows do not go up and down. After she made a few payments, the owner gave her the car. She also paid her bail bondsmen in full from the refinancing proceeds. The judge said she had chosen the wrong bills to pay out of this money.

The judge found Ewell had the ability to pay the required amount on the Citrus County offenses. He opined that he thought she had “conned the doctors”; that she was a “career criminal” and that she used the doctors:

[ PJrobably tricking them, into essentially giving you a license to steal. There’s no other way to look at it — then coming in and saying, Gee, I don’t have the ability to pay off this massive amount of theft that I perpetrated.
It’s because of those reasons, Ms. Ewell, that I find, that you have had the ability to make those payments, you have willfully chosen not to. I don’t believe that you did not have the ability to work the community service hours. You may have mentally chosen not to do them; you may have conned the probation people into thinking that, but you didn’t con this court.
It’s because of that I’m going to revoke your probation ... (emphasis added).

The state must establish that a violation of probation or community control is substantial and willful before a court may revoke the defendant’s probation. See Palma v. State, 830 So.2d 201, 202 (Fla. 5th DCA 2002)(community control); King v. State, 817 So.2d 935, 937 (Fla. 5th DCA 2002); Nichols v. State, 747 So.2d 1015 (Fla. 1st DCA 1999). Whether a violation is willful and substantial is a question of fact that will not be overturned on appeal unless the record shows no evidence to support it. See Brown v. State, 776 So.2d 329, 330 (Fla. 5th DCA 2001); Thomas v. State, 760 So.2d 1138, 1139 (Fla. 5th DCA 2000); Manon v. State, 740 So.2d 1253, 1256 (Fla. 3d DCA 1999).

Where the failure to pay is beyond the defendant’s ability, the failure cannot justify revocation of probation. See Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002)(no willful and substantial violation where defendant cannot afford to pay for sex offender treatment); Hartzog v. State, 816 So.2d 774 (Fla. 2d DCA 2002)(no willful and substantial violation; state failed to show defendant had ability to pay restitution); Robinson v. State, 773 So.2d 566 (Fla. 2d DCA 2000)(no willful and substantial violation where balance remained but defendant made payments and nothing indicated he could pay greater amount).

In this case, the trial court’s findings that Ewell had the ability to pay restitution and perform community service, were based on the same rationale he used to find that Ewell committed fraudulent use of medical records — his disbelief of her testimony, and by necessity, that of Rol-lenhagen. In fact, there was no evidence that Ewell could make the restitution payments of $2,000 per month on her $1,025 monthly income, because her total income was $975.00 per month less than her restitution obligations. Further, based on Rollenhagen’s testimony, which was not countered in the record, there was no community service work available because nothing was approved for persons not able to perform manual labor in Citrus County; and based on the testimony in this record, also not opposed, Ewell’s medical problems mandated she not perform manual labor.

I also submit that Ewell’s failure to use the $7,000 (which equates to only three and one-half months of the ordered restitution) she obtained from her refinancing towards restitution is insufficient to support a willful probation violation under the facts here. See White v. State, 736 So.2d 1226 (Fla. 3d DCA 1999). She used this money to pay necessary expenses: the bail bondsmen bill was a valid and outstanding obligation, and a vehicle was necessary to enable Ewell to get to her medical and probation appointments, and to meet other essential living requirements. Further, her short-time possession of the $7,000 occurred in 1999, a year before Ewell appeared before Judge Blackstone on a “technical” violation of probation for failure to pay restitution, after which she was not violated. These old facts should not provide fresh fodder for a new violation charge based on failure to pay restitution.

For the above reasons, I conclude the trial court erred in revoking Ewell’s probation.

      . The judge stated:
      For the record, I make a further finding as to the escalating pattern of criminality; I find there are fraudulent use of medical reports to facilitate criminal conduct.
      When defense counsel asked the basis of the finding, the judge responded:
      By her own testimony. I choose not to believe it. Looking at all of the medical evidence I have seen, it appears that this was a professional con woman who essentially conned her doctors into this stuff and then used that as a license to steal. And that is, in fact, my judicial finding.

      . Ewell had no juvenile convictions but between September of 1997 and July of 1998, in Hillsborough, Orange, Citrus, Pinellas, Pasco, and Charlotte Counties, Ewell committed the following offenses, most of which involved several counts of the same offense: grand theft; fraudulent use of a credit card; petit theft; dealing in stolen property; and uttering a forged instrument. Ewell has not committed any further offenses since that time.

      . Ewell testified she was taking tamoxifen for cancer; glucovite for her heart; medrol for her pulse rate; zyprexa, wellbutrin, klonopin, zoloft and another medication to stabilize her for her depression.

      . In White v. State, 736 So.2d 1226 (Fla. 3d DCA 1999), White had only paid $4,000 of her $43,868 restitution obligation by the end of her probationary period. The evidence showed that White had set aside $1,400 in a savings account to pay her estimated tax income obligation and she was not up-to-date on her payments, but White’s probation officers had told her to pay what she could. The court held that White did not willfully violate her probation and reversed.


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    Ronell D. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3585.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    James Dickson Crock, P.A., Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the legality of the sentence imposed upon him after he was resentenced in accordance with Heggs v. State, 759 So.2d 620 (Fla.2000). We agree with Appellant that the sentence constituted an improper departure sentence. Therefore, we reverse his sentence on each count and remand this cause with instructions that Appellant be resentenced.

After having been found guilty by a jury, Appellant was adjudicated guilty of Count I — Second Degree Murder with a Firearm, Count II — Trespass on a Structure While Armed with a Firearm, and Count III — Shooting into or Throwing Deadly Missiles into a Building with a Firearm. The events leading to the adjudication occurred on September 25 and 26, 1996. On December 19, 1997, Appellant was sentenced to the Department of Corrections, as follows: Count I — natural life, Count II — five years, and Count III — 15 years, with Counts I and II concurrent with each other, and Count III consecutive to the other counts. The sentence included a mandatory minimum three-year term on each of the counts, for use of a firearm, pursuant to section 775.087(2), Florida Statutes (1995). Appellant was sentenced using a 1995 sentencing guidelines score-sheet, which showed a total point score of 405.4, with a sentencing range of between 283 and 471.7 months incarceration. The 1995 sentencing guidelines provided the trial court with discretion to impose a life sentence if a defendant’s total sentence points were equal to or greater than 363 points.

Relying upon Heggs v. State, 759 So.2d 620 (Fla.2000), Appellant filed a post-conviction motion to correct an illegal sentence. The trial court resentenced him, pursuant to a guidelines scoresheet, using the 1994 guidelines. That scoresheet showed a total point score of 249.6, with a sentencing range of between 166.2 and 277 months incarceration. At the sentencing hearing, the prosecutor argued that, because the offense of which Appellant had been convicted was a first degree felony punishable by life, the court could properly reimpose the life sentence. Appellant’s counsel countered that the court was required to sentence Appellant within the guidelines range. The trial court reimposed the same sentences, except that the three-year mandatory minimum prison term was only applied to Count III. No reason to depart was provided by the court either at the hearing, on the scoresheet, or by separate order. From the judgment and sentence this appeal timely followed.

Unlike the 1995 guidelines, absent a departure, the 1994 guidelines do not permit the imposition of a life sentence based on total sentencing points exceeding a certain number. Compare § 921.0014(2), Fla. Stat. (1995) and Fla. R.Crim. P. 3.991 with § 921.0014(1), Fla. Stat. (1993) and Fla. R.Crim. P. 3.990. Furthermore, absent departure, Appellant cannot be sentenced to the statutory maximum because it exceeds the maximum guidelines sentence. § 921.001(5), Fla. Stat. (1995). See also Fla. R. Crim P. 3.701(d)(11), (12). Thus, the sentence imposed by the lower court was erroneous.

On remand, the court should sentence Appellant within the guidelines unless a valid basis for departure exists, in which case a departure sentence may be imposed, provided that written findings are properly provided. State v. Betancourt, 552 So.2d 1107 (Fla.1989).

REVERSED.

GRIFFIN and THOMPSON, JJ., concur.

      . We have considered Appellant’s argument that Pope v. State, 561 So.2d 554 (Fla.1990), requires that the court impose a guidelines sentence upon remand without opportunity for further departure, but we determine that Pope does not apply here because, unlike Pope, the trial judge here did not consider this to be a departure sentence. See Troutman v. State, 630 So.2d 528, 533, n. 6 (Fla.1993).


author: SHARP, W., J.,

text:
    Walter Herb FYLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2108.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Walter Herb Fyler, Sneads, pro se.
    No Appearance for Appellee.
   SHARP, W., J.,

Fyler appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, for post-conviction relief. He claims his classification as a violent habitual offender resulted in an illegal sentence because the jury did not make findings. See generally, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, this court has held that an habitual offender classification based on a defendant’s prior criminal record does not require a jury determination pursuant to the holding in Apprendi. See Walker v. State, 790 So.2d 1200 (Fla. 5th DCA 2001); Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001).

Taking judicial notice of our own records, we note that Fyler raised this same argument in a prior 3.850 motion. The fact that he is now relying on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) makes no difference. We affirm this appeal not only because it lacks merit, but also because it is successive and thus improper.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.

      . Fyler v. State, 827 So.2d 1012 (Fla. 5th DCA 2002).


author: PER CURIAM. GRIFFIN, J.,

text:
    Jane R. WHITENER, Petitioner, v. FIRST UNION NATIONAL BANK OF FLORIDA, etc., Respondent.
    No. 5D03-2116.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.
    Thomas S. Edwards, Jr. of Peek, Cobb, Edwards & Ashton, P. A., Jacksonville and James L. Ford, Sr. of Ford & Barnhart, LLP, Atlanta, Georgia, for Petitioner.
    Stacy L. Cole of Ackerman, Senterfitt & Eidson, Orlando, for Respondent.
   PER CURIAM.

DISMISSED.

PETERSON and ORFINGER, JJ., concur.

GRIFFIN, J., concurs and concurs specially with opinion.

GRIFFIN, J.,

concurring and concurring specially.

Even though it is clear that the instant petition for writ of certiorari must be dismissed because of its late filing, it presents a compelling issue of law that arises out of two prior decisions of this court and, as a member of the panel in both cases, I feel compelled to offer one perspective on the impact of our prior decisions on the current issue below. The record below and the text of the order at issue suggest that the trial court may consider itself bound to act to disqualify Mrs. Whitener’s current counsel because of our prior opinions. Current counsel replaced former counsel, who had been disqualified as a remedy for erroneously obtaining attorney-client privileged documents from the trial judge. In Whitener I we had ruled that the trial court had erred in turning over the documents because Whitener had not established that the attomey/client privilege applicable to several documents had been lost by application of the crime/fraud exception to the privilege. Subsequently, in similar litigation brought by a related party in Duval County, the trial court found the crime/fraud exception applicable and the documents at issue to be discoverable. See First Union Nat'l Bank v. Turney, 824 So.2d 172 (Fla. 1st DCA 2001). In Whitener II, the certiorari proceeding brought to challenge the decision of the trial judge in Whitener’s case to disqualify Whitener’s counsel, we were presented with several issues, one of which was that it would be manifestly unjust to disqualify trial counsel for obtaining documents protected by privilege when the subsequent Turney litigation had revealed that indeed the crime/fraud exception did apply and the documents were not protected by privilege, after all. This was the focus of the Whitener II opinion. We, in essence, said that because we remained unpersuaded that the crime/fraud exception did apply to the documents at issue, notwithstanding the Duval circuit court’s view to the contrary in the Turney case, certiorari would not he to undo the remedy fashioned by the trial court.

At some point, a trial in the Turney case was held in Duval circuit court and a substantial judgment was obtained against First Union. This judgment was appealed and the First District Court of Appeal issued its opinion affirming the judgment. Among the issues raised in the Turney appeal and addressed by the First District was the issue of the privilege. The First District held that the documents at issue were correctly ruled to be discoverable in that litigation. 824 So.2d at 191. Review was sought to the Supreme Court of Florida and denied. It thus appears that the attorney/client privilege for the documents at issue was lost in Turney and cannot be reclaimed by First Union. Id. The Turney documents, not being privileged, presumably are available for anyone in the world (including counsel in the Whitener case) to review in the Duval circuit court’s records. This legal reality did not exist when we decided Whitener I or II, and I cannot see how the trial court would infringe on the authority of this court by considering it. Nor is it apparent to me why the remedy of disqualification of the original trial counsel in Whitener I who erroneously received then-privileged documents from the trial court, based on counsel’s request, would suggest disqualification of replacement counsel who tried the Turney case. They were not involved in the conduct that required remediation and their possession of the documents has finally been determined to have been lawful by the First District Court of Appeal.

      . First Union Nat’l Bank v. Whitener, 715 So.2d 979 (Fla. 5th DCA 1998) (Whitener I); Whitener v. First Union Nat’l Bank, 783 So.2d 287 (Fla. 5th DCA 2001) (Whitener II).


author: PALMER, J.

text:
    Daniel J. BOGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2244.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2003.

      James B. Gibson, Public Defender and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Daniel Bogan appeals his judgments and sentences which were entered by the trial court after he pled guilty to the charges of driving under the influence causing serious bodily injury, driving under the influence causing damage or injury, and driving under the influence. Bogan alleges that these convictions violate double jeopardy. We affirm.

Under rule 9.140(b) of the Florida Rules of Appellate Procedure, a defendant who pleads guilty has no right to file a direct appeal, except when he expressly reserves the right to appeal a prior dispositive order or when he raises matters as would invalidate the plea itself. Here, Bogan pled guilty to the charges and did not reserve his right to appeal any issue. Therefore, any direct appeal on his guilty plea must be based on one of the reasons enumerated in Florida Rules of Appellate Procedure 9.140(b)(2)(A)(ii). Bogan’s argument based on double jeopardy is not a basis for a direct appeal because he failed to file a motion to withdraw his plea. Accordingly, we affirm without prejudice to Bogan’s right to seek collateral relief in the trial court. See Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

AFFIRMED.

SHARP, W. and PLEUS, JJ., concur.

      . See § 316.193; 316.193(3)(a), (b), (c), 2.; 316.193(3)(a), (b), (c), 1., Fla. Stat. (1997).

      . Rule 9.140. Appeal Proceedings in Criminal Cases

      (b) Appeals by Defendant.

      (2) Guilty or Nolo Contendere Pleas.
      (A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
      (i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo con-tendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.
      (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo conten-dere may otherwise directly appeal only
      a. the lower tribunal's lack of subject matter jurisdiction;
      b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
      c. an involuntary plea, if preserved by a motion to withdraw plea;
      d. a sentencing error, if preserved; or
      e. as otherwise provided by law.


author: LDECUIR, Judge.

text:
    Ruby LEBATO v. SAFEWAY INSURANCE COMPANY and Marcus Hudson.
    No. CA 03-0131.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      M. Robert Voitier, Jr., Borne & Wilkes, Lafayette, LA, for Defendants/Appellants, Safeway Insurance Company Marcus Hudson.
    W. Jay Luneau, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Ruby Lebato.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   LDECUIR, Judge.

Ruby Lebato filed suit against Marcus Hudson and his insurer, Safeway Insurance Company, for damages sustained in an automobile accident. Judgment was rendered in favor of Lebato and against Safeway and Hudson, in solido, in the amount of $30,066.33, with interest from the date of judicial demand. Lebato’s uninsured motorist carrier, Allstate Insurance Company, settled with Lebato before trial and is no longer a party to this litigation. Safeway and Hudson have appealed the ruling of the trial court. For the following reasons, we affirm in part and reverse in part, and amend.

The accident took place on a rainy afternoon in February, 2000. Lebato was in the center turning lane of Highway 28 in Pineville waiting to make a left turn when she was rear-ended by Hudson. The impact was significant, breaking the windows of her 1989 Oldsmobile Cutlass, dislodging the seats, bending the frame, and rendering the vehicle immobile and a total loss. Both at the time of the accident and in his testimony at trial, Hudson admitted he was at fault in causing the accident.

Lebato, who at the time of the accident, was an active, sixty-three-year-old homemaker, was transported by ambulance to Rapides Regional Hospital where she was treated and released with medication and instructions to follow-up with a physician. She then saw Dr. Robert Rush, an occupational medicine specialist. He diagnosed cervical and lumbar strains as well as sacroiliac strain, which resulted in pain in the left hip. He treated her for two months for inflammation, pain, and tightness in her muscles, prescribing both physical therapy and medications for her symptoms. Dr. Rush described Lebato’s course of treatment as typical for her injuries; the cervical injury resolved first, then the lumbar injury, while the sacroiliac symptoms lingered for a while and then caused occasional flare-ups of pain. Dr. Rush considered Lebato to be truthful concerning her condition, and he commented that her |¡,two months of home exercises after medical release were much better than what most patients would do.

Lebato’s testimony revealed her to be a hard-working woman who has taken care of her home and her large yard all of her life. She has volunteer duties for her church and works every election day as an election commissioner. Her husband is disabled. After the accident, Lebato was unable to mow her grass or otherwise work in her yard and missed working as a commissioner on two election days. She also missed going to church for a few weeks. Lebato described the emotional difficulties she experienced after the accident, including depression, sleeplessness, and frustration in dealing with the insurance company. Additionally, the car totaled in the accident originally belonged to Lebato’s recently deceased mother, a fact which added to the trauma of the ordeal.

A week after the accident, Safeway informed Lebato that the car was declared a total loss. However, a dispute then arose over the transfer of title to the car and actual payment for the loss. Lebato wanted to complete the transaction in person, while Safeway insisted Lebato mail in the paperwork before a check would be sent to her. Additionally, Safeway told Lebato she could get a rental car for a week, but Lebato declined the offer when she was told she would have to pay for it up front. Consequently, as of the time of trial, Safeway had paid nothing on this claim. Leba-to took money from a savings account to purchase a used car nine weeks after the accident.

After a one-day bench trial, the court awarded the following amounts as damages: property damage — $3,345.30, medical expenses — $3,521.03, lost wages— $200.00, loss of use — $1,500.00, loss of enjoyment of life — $1,500.00, and general damages — $20,000.00. The trial court assessed solidary liability and awarded legal [.■¡interest on the full amount of the judgment from the date of judicial demand. In this appeal, Safeway and Hudson contend the assessment of solidary liability and interest from the date of judicial demand was improper. They also contest the loss of use, loss of enjoyment of life, and general damage awards. Additionally, they assert that Hudson is entitled to a credit for the amount of the plaintiffs settlement with Allstate for uninsured/underinsured motorist benefits.

The trial court decreed that Safeway and Hudson are solidarity liable for the full amount of Lebato’s damages, in spite of the Safeway policy’s per person liability limits of $10,000.00. Lebato agrees with the defendant’s position on this issue and concedes the trial court erred in holding them solidarity liable for her damages. In Carrier v. Nobel Ins. Co, 01-983, p. 12 (La.App. 3 Cir. 2/6/02), 817 So.2d 126, 135, we reiterated the general rule that when “a policy has specific language limiting the liability of the insurer, the insurer may only be found to be soli-darily liable up to the policy limits.” Accordingly, we find Safeway to be solidarily liable with Hudson only up to its policy limits.

Safeway argues the trial court also erred in holding it liable for legal interest on the entire judgment from the date of judicial demand until paid, in contravention of the terms of its policy. The applicable provision of the Safeway policy reads as follows:

Supplementary Payments. To pay, in addition to the applicable limits of liability:
(a) all expenses incurred by the Company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Company’s liability thereon.

1 ¿While La.R.S. 13:4203 requires liability insurers to pay legal interest on judgments within their policy limits from the date of judicial demand, Louisiana jurisprudence allows insurers to reduce, exclude, or extend their interest liability on excess judgments. Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d 991. Consequently, in accordance with the terms of the Safeway policy, Safeway is hable for legal interest on that portion of the judgment which exceeds its policy limits only from the date of judgment.

We turn now to the defendants’ complaints concerning the amount of damages awarded by the trial court. On the question of loss of use, the court awarded $1,500.00. Lebato’s vehicle was declared a total loss a week after the accident, and after looking for a similar vehicle, she purchased a replacement two months later with her own funds. The defendants contend the amount awarded is excessive. They argue that Lebato should be compensated for the time period she was without a vehicle, but that period must be reasonable. They suggest a period of thirty days is a reasonable time to find a replacement vehicle, and, at $25.00 to $30.00 per day, an appropriate award would be less than $1,000.00. Lebato asked the trial court for an award of $30.00 per day for seventy days, an amount in excess of $2,000.00. The evidence in the record reveals no abuse of discretion in the trial court’s lump sum award of $1,500.00.

Safeway and Hudson also complain that the general damage award of $20,000.00 and the $1,500.00 award for loss of enjoyment of life are both excessive. The record shows Lebato was under a doctor’s care for two months, participated in physical therapy during that time, and continued with exercises at home for another two months. She suffered from pain, muscle spasm, sleep disturbances, and depression. The trauma of the accident included a severe impact, transportation by ^ambulance, loss of her mother’s car, and difficult, frustrating, and ultimately unsuccessful dealings with an insurance adjustor. The evidence presented at trial revealed Lebato to be a very active, self-reliant, industrious woman, the very traits that undoubtedly contributed to her quick recovery. The trial court was obviously impressed with Lebato’s sincerity and the extent of her suffering. While the loss of enjoyment of life and general damage awards are certainly generous, we cannot say that they constitute an abuse of discretion. In affirming these awards,- we rely on the principles set forth by the supreme court in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993):

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
When these and other factors are properly considered under the standards discussed above, we cannot say that the trial judge abused his discretion in fixing the generous awards of general damages. The awards are not obviously the result of passion or prejudice, and they bear a reasonable relationship to the elements of the proved damages. Many rational triers of fact could have decided that a lower award is more appropriate, but we cannot conclude from the entirety of the evidence in this record, viewed in the light most favorable to the prevailing party in the trial court, that a rational trier of fact could not have fixed the awards of general damages at the level set by the trial judge or that this is one of those “exceptional cases where such awards are so gross as to be contrary to right reason.” Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.1987).

| fiThe final issue raised by the defendants is whether the tortfeasor, Hudson, is entitled to a credit reflecting the pre-trial settlement between Lebato and her UM insurer. While the record contains evidence that a settlement was reached, there is no evidence of the amount of the settlement or the terms and limits of the Allstate policy. Additionally, neither Safeway nor Hudson sought a credit for the amount of the settlement prior to judgment; the issue was first raised in a supplemental memorandum submitted in support of a motion for new trial. The defendants presented absolutely no evidence on this issue; hence, the matter is not properly before us and the judgment against Hudson is final.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it holds Safeway solidarity liable for that portion of the judgment in excess of its policy limits; we hold Safeway solidarily hable only up to its policy limits. Furthermore, we amend the award of legal interest to reflect interest from the date of judgment on that portion in excess of Safeway’s policy limits, and we leave intact the award of interest from the date of judicial demand on that portion within the limits of the policy. In all other respects, the judgment before us is affirmed.

. Costs of this appeal are assessed equally to Ruby Lebato and the defendants.

REVERSED IN PART, AFFIRMED IN PART, AND AMENDED.


author: | .DOUCET, Chief Judge.

text:
    STATE of Louisiana v. Dale Michael SCHEXNAIDER.
    No. 03-144.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant Appellant, Dale Michael Schexnaider.
    James C. Downs, D.A., James M. Buck, A.D.A., Alexandria, LA, for Appellee, State of Louisiana.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   | .DOUCET, Chief Judge.

Defendant, Dale Michael Schexnaider, was charged by bill of information on May 17, 2000, with indecent behavior with a juvenile, a violation of La.R.S. 14:81, and forcible rape, a violation of La.R.S. 14:42.1. On June 28, 2000, Defendant entered pleas of not guilty. On June 15, 2001, and June 22, 2001, amended bills of information were filed. One week later, on June 22, 2001, the Defendant entered a plea of not guilty to the amended charge and waived his right to trial by jury. Trial commenced on June 26, 2001; however, a mistrial was granted. The bill of information was amended again on August 2, 2002. Thereafter, on August 6, 2002, the Defendant waived his right to trial by jury and proceeded to trial by judge. The Defendant was found guilty of forcible rape and indecent behavior with a juvenile on August 9, 2002. On October 7, 2002, the Defendant was sentenced to twenty years at hard labor, five years to be without benefit of probation, parole or suspension of sentence, with credit for time served on the charge of forcible rape. Defendant was also sentenced to five years at hard labor, with credit for time served, on the charge of indecent behavior with a juvenile. The trial judge ordered the sentences to run consecutively.

Before sentencing, on August 16, 2002, Defendant filed a Motion for New Trial and a Motion in Arrest of Judgment. The Motion for New Trial was denied; however, the trial court failed to act on the Motion in Arrest of Judgment. A Motion to Reconsider Sentence was filed and denied on October 14, 2002. A Notice of Appeal was immediately filed following the denial of Defendant’s Motion to Reconsider Sentence.

| ¿FACTS:

The Defendant was a friend of G.N. and V.N., the parents of K.N. and E.N. As the victims in this matter are minors, their initials and those of their family members will be used in accordance with La.R.S. 46:1844(W). Photography was one of the Defendant’s hobbies. In May or June of 1999, the Defendant took photographs of K.N., then seven years old. While taking photos of K.N., the Defendant told K.N. to take her underwear off and took two pictures of her which form the basis of the charged offense of indecent behavior with a juvenile.

On Sunday, April 9, 2000, the Defendant took photographs of E.N., who was thirteen years old at the time. At the end of the photo shoot, the Defendant raped E.N. On Monday, April 10, 2000, E.N. told Denise Holt, the guidance counselor at Brame Junior High, she had been raped the previous day. Ms. Holt notified authorities, and at 10:58 a.m., Corporal David Billings, with the Rapides Parish Sheriffs Office, responded to the call. Detective Gary Bill-ingsley, with the Rapides Parish Sheriffs Office, also went to Brame Junior High where he met with E.N. Detective Billings-ley contacted E.N.’s father, informing him of the rape. The next day, April 11, 2000, E.N. was examined by Dr. Deborah Myers.

E.N. reported that she was raped by Mr. Dale, but did not know his last name. Detective Billingsley presented E.N. with a six-picture lineup on April 12, 2000. E.N. identified the Defendant from the photographs.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find |sthere is one error patent. The Defense filed a Motion in Arrest of Judgment on August 16, 2002, which has not been ruled on by the trial court. La.Code Crim.P. art. 860 states: “A motion in arrest of judgment shall be in writing, shall state the ground upon which it is based, and shall be tried contradictorily with the district attorney.” Additionally, La.Code Crim.P. art. 861 provides in part: “A motion in arrest of judgment must be filed and disposed of before sentence.”

The Defendant’s Motion in Arrest of Judgment reads as follows:

Double Jeopardy precluded this trial; Specifically, Mr. SCHEXNIEDER [sic] entered into a guilty plea regarding the same offense in Caddo Parish, Louisiana. properly prepare his defense for the scheduled Trial date, [sic]

On June 15, 2001, the Defense filed a Motion to Quash contending that the conduct complained of in the indecent behavior with a juvenile charge was the same conduct at issue in a pornography charge in Caddo Parish. According to defense counsel, this constituted double jeopardy. There was no evidence or testimony introduced into the record establishing that the Defendant was ever charged with violation of any of the rape statutes in Caddo Parish. Thus, we conclude that the Motion in Arrest of Judgment dealt only with the charge of indecent behavior with a juvenile. Accordingly, this court has no choice but to vacate the sentence imposed for indecent behavior with a juvenile and remand the case for a contradictory hearing on the outstanding motion.

ASSIGNMENT OF ERROR NO. 1:

The Defendant contends there is insufficient evidence to prove his guilt of the forcible rape offense beyond a reasonable doubt.

|4The Defendant specifically contends there is insufficient evidence to convict Defendant due to internal “irreconcilable inconsistencies in the testimony of E.N.” Alternatively, the Defendant asserts the State failed to prove E.N. was prevented from resisting the act by force or threats of physical violence under the circumstances in which she reasonably believed that such resistance would not prevent the rape.

E.N. testified that after the Defendant took pictures of her, they were sitting on the tailgate of the Defendant’s truck drinking Dr. Pepper when the Defendant grabbed her face, kissed her and pushed her onto her back in the bed of his pick-up truck. She stated the Defendant proceeded to get on top of her, taking off her shoes and pants, then putting his penis in her vagina.

E.N. testified she did not recall the Defendant hitting or slapping her and she did not recall hitting, scratching, kicking, or biting the Defendant. She explained that when she get frightened, she freezes. She testified: “I was scared and I couldn’t move. I couldn’t say anything.” E.N. stated that she was finally able to tell the Defendant “No,” and when she told Defendant she was going to tell her friend Ryan, Defendant stopped. E.N. also testified that there was really nothing she could do to get the Defendant off her because from the time the incident started the Defendant had his weight on her. She further testified that there was no one around during or after the rape.

Denise Holt, Detective Billingsley and G.N. testified they did not observe any bruises, cuts, or scratches on E.N. However, Corporal Billings observed some abrasions and scratches on E.N.’s left wrist. The abrasions were not bandaged or bleeding and did not look severe. Considering E.N.’s account of what happened, we do not find the lack of bruises, cuts or scratches significant.

IsDr. Deborah Myers examined E.N. on April 11, 2000, two days after the rape. According to Dr. Myers, E.N. reported to her that the Defendant “started to rub her knee then started kissing her and then forced her back and she felt, felt him go inside of her, and at that time she went blank.” The exam revealed a fimbriated hymen, extra tissue around the vaginal opening; a tear in the hymen at six o’clock, which was noted as a notch in the exam; some abrasions to the labia, and a fresh looking abrasion or bruise at the six o’clock position. The labia was red, almost bruised in appearance, indicative of a forceful entry. Dr. Myers testified her findings during E.N.’s examination were compatible with forcible rape. Dr. Myers stated that she was not able to tell specifically what caused the tear to the hymen; however, she concluded the abrasions and tear occurred at the same time, probably within a week of the exam.

Dr. Yasser M. Nakhlawi reviewed Dr. Myers’ report regarding E.N. We note that the initial portion of the transcript wherein Dr. Nakhlawi was called as a witness is missing. However, his testimony regarding his impression of Dr. Myers’ report appears to be complete. Dr. Na-khlawi testified that the hymen usually tears secondary to penetration between the five and seven o’clock positions. There would have to be a tremendous amount of stretching to tear the hymen in this area from a large object like a penis. Dr. Na-khlawi testified a hymen tear does not happen from the insertion of a finger or a small object. He opined it was not possible that digital penetration caused the tear. He also stated that a self-inflicted injury of this type would be very painful.

The Defendant testified the photo shoot stopped when he noticed something on his camera lense or the view finder and he decided it was time for a break. The | ^Defendant stated he and E.N. sat on the tailgate and talked. E.N. suddenly started crying when the two discussed E.N.’s mother’s illness. The Defendant testified that “When she started crying I put my arm around her, pulled her head to me and kissed her head and she exploded on me. She said, get off me.”

Defendant denied either asking E.N. to take her clothes off or forcefully removing E.N.’s clothes. He further denied grabbing E.N.’s face and forcefully kissing her, molesting and/or having intercourse with her.

In State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, this court held:

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

Id. at pp. 4-5, 726-27.

The Defendant points out several inconsistencies in the testimony at trial. First, the Defendant points out that Dr. Myers testified that E.N. indicated to her that she was unable to remember many details of the rape because she blacked out; however, she later recalled a myriad of details. Dr. Myers testimony indicates E.N. never told her she blacked out, rather E.N. stated that at one point she went blank.

Second, the Defendant asserts E.N. testified she did not eat dinner with the Defendant and her family that evening, but K.N. and the Defendant testified she did. |7 K.N. testified E.N. ate dinner with her, her mother, her father, her cousin, her uncle and the Defendant. The Defendant testified E.N. ate dinner and sat directly across from him. G.N. testified E.N. did not eat dinner with them. E.N. testified she never ate dinner that night. However, she also testified she could have eaten dinner with her family, but she did not think she did. Considering that E.N. had been traumatized just an hour or so before, we do not find these inconsistencies significant.

Third, Defendant points out that E.N.’s testimony was inconsistent as to what clothing she was wearing when she was raped. E.N. testified she was wearing blue jean pants that were kind of faded, a white T-shirt, and a light purple sweater tied around her waist. In a statement given at the Children’s Advocacy Center, E.N. said she was wearing “Limited” pants that were “like white colored but they are faded.” At trial, E.N. further explained that the pants were kind of white, but were blue jean material. Detective Billingsley testified that E.N. told him she was dressed in white at the time of the rape — white shirt, white pants, white panties, white bra.

Upon examination of all of E.N.’s testimony, we do not find her descriptions of what she was wearing that day irreconcilable. From our reading of the record, it would appear that she was wearing, a white top and pants which were purchased from a store called The Limited. From her various descriptions of the pants it appears that they were badly faded denim jeans which she described at different times as faded, almost white or white. We do not find those descriptions inconsistent, but rather different ways of describing the same pants.

Finally, the Defendant contends E.N.’s testimony was contradictory as to how her clothes were removed prior to the rape and then put back on after the rape. Denise Holt testified E.N. told her the Defendant made her take her clothes off. E.N. Istestified the Defendant took off her shoes, then her pants, one leg at a time. E.N. testified that she may have told Ms. Holt that the Defendant made her take her clothes off, but she was not sure. She did not remember everything she told Ms. Holt. At trial, E.N. testified she was positive the Defendant took her clothes off. E.N. also testified that after the rape, her pants were hanging on the tailgate and she put them on while in a seated position. She was not quite sure, but she thought her pants were on before her feet hit the ground. In a previous statement, E.N. said she ran and put her clothes on and got in the truck. E.N. explained that she did not say that she got up and ran. She explained, “I was like in a hurry, like I was running to get my clothes on.”

The Defendant concludes that because of these inconsistencies and because there was no DNA or other physical evidence to corroborate E.N.’s testimony, the Defendant’s conviction should be reversed.

The judge made the following comments before making his ruling:

Now in every case there are some discrepancies in the way witnesses recall the facts of the case. This case is not unusual in that respect. Did the victim eat supper that night? There’s some testimony she did. There’s some testimony she did not. There’s some testimony she ate supper but she ate after the others had finished their supper. But it is not unusual for people to see and recall matters somewhat differently. In this case, the differences are mostly on minor points. The real question in this case is whether or not the rape occurred.
This Court, accordingly accepts the testimony of E.N. and the two doctors and finds the defendant guilty as charged beyond a reasonable doubt on count two of forcible rape.

The inconsistencies pointed out by the Defendant do not concern the actual act of forcible rape. There are no contradictions in E.N.’s testimony regarding the actual |flact of forced intercourse with the Defendant. The trial court considered the testimony of all witnesses in this case and made a credibility determination that should not be second guessed by this court. Furthermore, “[t]he fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient.” State v. Holley, 01-0254, p. 6 (La.App. 3 Cir. 10/3/01), 799 So.2d 578, 583, citing State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand, 429 So.2d 1385 (La.1982).

The following is well settled:

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. State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 00-0150 (La.6/30/00), 765 So.2d 1066; State v. Hawkins, 99-217 (La.App. 5th Cir.7/2/99), 740 So.2d 768, 769; State v. Hubbard, 97-916 (La.App. 5th Cir.1/27/98), 708 So.2d 1099, 1104, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415.
The credibility of a witness, including the victim, is within the discretion of the trier of fact,'who may accept or reject, in whole or in part, the testimony of any witness. Id. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.

State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/28/02), 812 So.2d 646. The case sub judice is stronger than the ones cited above in that, in the case sub judice, the State introduced medical evidence which supported the victim’s testimony.

We find no error by the trial court’s choosing to believe E.N.’s testimony over that of the Defendant.

|inThe Defendant also contends the State did not prove the element of force or threats of physical violence. La.R.S. 14:42.1 provides in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

Thus, in order to convict the Defendant, the State had the burden of proving: (1) an act of vaginal or anal intercourse; (2) without the lawful consent of the victim; and (3) where the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

E.N. testified the Defendant forcefully pushed her back and got on top of her. She testified she could not push the Defendant back because he was bigger than her, and she was pinned under the Defendant’s weight. E.N. stated that she was in a state of shock. She testified she was scared and when she is scared she cannot move. Dr. Myers testified that her examination of E.N. revealed evidence consistent with forcible rape. Further, Dr. Yasser M. Nakhlawi, who reviewed Dr. Myers’ report, testified that the hymen usually tears secondary to penetration between the five and seven o’clock positions. He stated that a hymen tear does not happen from the insertion of a finger or a small object, but rather from a large object like a penis. He also stated that a self inflicted injury of this type would be very painful.

The Defendant cites State v. Powell, 438 So.2d 1306 (La.App. 3 Cir.), writ denied, 443 So.2d 585 (La.1983), in support of his argument. In that case, the victim | ri approached the defendant’s car asking for a ride. The defendant agreed to take the victim to her cousin’s residence, but instead brought her to a secluded area and threatened to Mil her when she refused to have sex with him. The victim stated the defendant slapped her in the face three or four times while threatening to kill her. She contended the defendant threatened to use a weapon which, he indicated, was under the seat. However, the victim never saw the weapon. The victim testified that she and the defendant removed their own pants and the defendant had sex with her. The court concluded there was no showing of resistance on the part of the victim and very little evidence that she was prevented from resisting by force or threats of physical violence. The court stated that the victim was afraid; however, she testified the defendant said he would not hurt her. All witnesses who saw the victim after the incident testified that they did not see any cuts, scrapes, bruises or evidence of any physical attack. The victim’s testimony indicated she did not make any efforts to resist. The court held the state had not met its burden of proof.

Judge Stoker dissented, stating the following:

The victim in this case stated that she submitted because the defendant threatened to kill her if she did not. Although she did not state in so many words that she did not resist because she believed that resistance would not prevent the rape, that is the clear meaning of her testimony. If that meaning is not given to her testimony, it is tantamount to requiring a person threatened with rape to either be faced with a dangerous weapon or to resist to the utmost and, in either case, subject themselves to the possibility of great physical harm or death. This is resistance in the context of aggravated rape. Forcible rape requires less.

Id. at 1310.

The First and Fourth Circuits have found the majority opinion in Powell unpersuasive. See State v. Savario, 97-2614 (La.App. 1 Cir. 11/6/98), 721 So.2d 1084, writ denied, 98-3032 (La.4/1/99), 741 So.2d 1280 and State v. Burger, 531 So.2d 1163 (La.App. 4 Cir.1988), determination sustained by, 541 So.2d 842 (La.1989), on remand, 550 So.2d 1282 (La.App. 4 Cir.1989), writ denied, 556 So.2d 1276 (La.1990).

The facts in the case before this court are more similar to those in State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494. Although, in Wilkinson, a jury convicted the defendant of simple rape, in reviewing his conviction, the Fifth Circuit observed that evidence presented by the state was sufficient to convict the defendant of forcible rape.

The evidence offered by the State shows that the Defendant forcibly grabbed C.C., threw her to the ground, pushed down her clothing, laid on top of her and penetrated her vaginally several times. C.C., a fourteen-year-old, was frightened, weighted down by the backpack and did not know whether any action on her part would have caused him to do additional harm. She was thrown into a secluded area and could have reasonably believed that screaming would be futile.
Similar testimony from Coffman, police officers, and Dr. McCaslin, confirm that C.C. was extremely upset, but consistent, when relating the details of the incident. Further, medical evidence showed that C.C. sustained a tear at the bottom of the hymen consistent- with attempted penetration.

Id. at p. 15, 766-67.

The court held that, given the facts presented at trial, the evidence was sufficient to support the elements of forcible rape.

In State v. Hawkins, 504 So.2d 1132 (La.App. 5 Cir.1987), the victim was riding a bike near dark when the defendant grabbed him and his bike and brought the victim and the bike upstairs into an apartment. Once inside the apartment, the defendant locked the door, undressed himself and then the victim, and put his penis 11 ¡¡inside the victim’s rectum for ten minutes. The victim testified he was forced against his will into the apartment, he was afraid and tried to escape, but the defendant was on top of him, thus, he could not move. The court held the evidence supported the verdict of forcible rape.

We find the facts in this case are more like those in Wilkinson, and Hawkins. Further we agree with Judge Stoker’s dissent in Powell.

Accordingly, we find that the evidence and testimony introduced at trial establishes that Defendant used sufficient force against the victim to sustain the Defendant’s conviction.

ASSIGNMENT OF ERROR NO. 2:

The Defendant contends the sentences imposed are excessive for this offender and offense.

Inasmuch as this court has determined that Defendant’s Motion in Arrest of Judgment in connection with the charge of indecent behavior requires that the sentence on that charge be set aside, we will only consider the Defendant’s sentence for forcible rape.

In State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, writ denied, 96-1767 (La.12/06/96), 684 So.2d 924, this court held:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is 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, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210, 1217 (La.1982).

Id. at pp. 3-4, 534-35.

In State v. Iron, 00-1238, p. 10 (La.App. 3 Cir. 2/15/01), 780 So.2d 1123, 1128, writ denied, 01-1232 (La.3/15/02), 811 So.2d 898, reconsideration denied, 01-1232 (La.6/7/02), 817 So.2d 1142, this court reviewed the issue of compliance with La. Code Crim.P. art. 894.1, stating:

With respect to the issue of compliance with La.Code Crim.P. art. 894.Í, this court stated in State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483:
The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La. Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992). However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).
If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also, Smith, 433 So.2d 688 and State v. Stein, 611 So.2d 800 (La.App. 3 Cir.1992). Even though art. 894.1 has undergone several |1Rmajor revisions, the reasoning used in these cases is still applicable.

As stated in State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986):

There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. State v. Murdock, 416 So.2d 103 (La.1982). In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines. State v. Murdock, supra; State v. Forshee, 395 So.2d 742 (La.1981); State v. Perry, 470 So.2d 426 (La.App. 3 Cir.1985).

Id. at 1186.

The Defendant was convicted of forcible rape, a violation of La.R.S. 14:42.1, which provides in pertinent part: “Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” Defendant was sentenced to twenty years at hard labor, the first five years to be served without benefits.

The Defendant specifically contends the court failed to particularize Defendant’s sentence in accordance with La.Code Crim.P. art. 894.1 by failing to give sufficient weight to relevant mitigating factors. The Defendant lists the following as mitigating factors:

1) Defendant’s prior criminal history does not include this type of offense;
2) The Defendant has been in therapy, thus seeking treatment and rehabilitation;
3) A lengthy sentence will create an undue hardship for the Defendant’s elderly parents; and
I ir4) The Defendant has obtained a GED and is capable of supporting himself and his family.

In his Motion to Reconsider Sentence, the Defendant did not specifically argue the trial court failed to comply with Article 894.1. The Defendant asserted only that his sentences were excessive. However, in an over-abundance of caution, we will address this issue.

At sentencing, the judge noted:

And the court considered, and has considered, the arguments of both counsel. Mr. Schexnaider did admit taking the pictures of the youngest child. Mr. Schexnaider’s prior criminal record was not of crimes of this particular type. And I’m certain that any prison term will work a hardship on his family. He should be commended for participating in therapy and the three other programs that he has participated in. On the other side, as indicated by Mr. Buck, in truth and in fact, there was deliberate cruelty here. Forcible rape. An aggravating factor certainly is the age of the victim, 13 years of age at the time, and the victim of the indecent behavior was eight years old. These are children preyed upon at a time when they are most vulnerable. And, even worse, this defendant did use a position of authority to obtain his way with these children. He was the responsible adult on these photo shoots. He was in charge. He was the close family friend.

We note that all the mitigating factors listed by the Defendant were addressed by the trial court except the Defendant’s having obtained his GED and his ability to support his family.

The court is not required to list every aggravating and mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The article does not require the court to assign any particular weight to any specific matters at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

State v. Quiambao, 36,587, p. 12 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, 1110.

| ^Accordingly, we find the trial court sufficiently complied with the guidelines set out in La.Code Crim.P. art. 894.1.

As' to the length of Defendant’s sentence, we note that in a case with facts very similar to this one, State v. Frith, 32,796 (La.App. 2 Cir. 12/8/99), 747 So.2d 1269, writ denied, 00-419 (La.1/26/01), 781 So.2d 1256, the court concluded a sentence of twenty years at hard labor, with ten years to be served without benefit of probation, parole or suspension of sentence, was not excessive for a defendant who had raped his thirteen-year-old niece.

Additionally, we note that Defendant plead guilty to attempted possession of a firearm by a convicted felon in Shreveport in 1999. Accordingly, Defendant’s conviction for forcible rape makes him, at least, a second felony offender. Defendant was not billed as a habitual offender wherein he would have been exposed to a sentence ranging from twenty to eighty years. Considering all the circumstances, we cannot say the trial court abused its discretion when sentencing the Defendant. Accordingly, this assignment lacks merit.

DEFENDANT’S PRO SE ASSIGNMENT OF ERROR:

In a pro se brief with the court on May 7, 2003, Defendant alleges one assignment of error, i.e., that there is sufficient evidence to show that the attorneys at his first and second trials denied him effective assistance of counsel.

Defendant’s first trial ended in a mistrial. Thus, any alleged errors of counsel during the Defendant’s first trial are not appealable. See La.Code Crim.P. art. 912.

In State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, our brethren of the Fourth Circuit, with whom we agree, reviewed the law applicable to claims of ineffective assistance of counsel stating as follows:

| ¶ «Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).
The defendant’s claim of ineffective assistance of "counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).
This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

Of the numerous errors Defendant alleges were committed by counsel, many appear to fall “within the ambit of trial strategy.” However, Defendant also sets out a number of alleged inconsistencies in the case which he asserts, had counsel investigated and questioned witnesses thoroughly, there would have been a different |19result at trial. Many of the alleged inconsistencies can be found in the exhibits attached to Defendant’s brief. However, none of the those exhibits were introduced into evidence at the trial which resulted in the Defendant’s convictions.

We cannot determine from the record what trial counsel did or did not do, what documents counsel possessed, or the basis for any decision made by counsel. As stated above, a number of the various complaints made by Defendant appear to involve counsel’s trial strategy.

In sum, the record before us is insufficient to make definitive findings as to the Defendant’s claims of ineffective assistance of counsel. Thus, Defendant’s claims must be relegated to post-conviction relief proceedings, where, if warranted, a full evidentiary hearing may be conducted to develop a sufficient record on the issues raised.

DISPOSITION:

The Defendant’s conviction and sentence for forcible rape are affirmed. Defendant’s sentence for indecent behavior with a juvenile is set aside and the case is remand for a contradictory hearing on the outstanding motion in arrest of judgment.

CONVICTION AND SENTENCE FOR FORCIBLE RAPE AFFIRMED; SENTENCE FOR INDECENT BEHAVIOR WITH A JUVENILE SET ASIDE AND CASE REMANDED WITH INSTRUCTIONS.


author: h SULLIVAN, Judge.

text:
    STATE of Louisiana v. James MALVEAUX.
    No. 03-276.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Robert Richard Bryant, Jr., District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defen-dani/Appellant, James Malveaux.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G, SULLIVAN, Judges.
   h SULLIVAN, Judge.

Defendant, James Malveaux, was charged by bill of information with possession of CDS Schedule II, a violation of La.R.S. 40:967(C), and obstruction of a public passage, a violation of La.R.S. 14:100.1. After the trial court denied Defendant’s motion to suppress, Defendant entered a Crosby plea to the charge of possession of CDS Schedule II, and the charge of simple obstruction of public passage was dismissed. The trial court sentenced Defendant to two years supervised probation with special conditions.

Facts

At the hearing on the motion to suppress, Corporal Jason Johnson and Corporal Albert Hooper described the events that led to Defendant’s arrest. At 1:30 p.m. on October 6, 2001, the two officers observed Defendant walking in the middle of Martha Street on the north side of Lake Charles, Louisiana. As the officers exited their vehicle to speak with him, they noticed that he appeared to clutch something in his left hand. When they asked him to step toward the patrol car and state his name and address, Defendant turned, pointed in the direction of a Martha Street residence, and “took off running” toward the residence. The officers chased him into the backyard of the residence, where he attempted to leap over a fence. During the struggle that ensued as Defendant fell to the ground, Defendant attempted to put his left hand into the left.pocket of his pants. After the officers handcuffed Defendant, they brought him to his feet and conducted a pat down search. As they reached into his left pocket, they found what they believed to be crack cocaine. They then placed Defendant under arrest for obstructing a public passage and possession of crack cocaine.

| ¡/The substance found in Defendant’s pocket was described as “small fragments” in a supplemental offense report. In his testimony at the preliminary examination, Corporal Johnson described it as “particles.” Lab results indicated that the material found was cocaine based.

Assignment of Error

In his sole assignment of error, Defendant argues that the trial court erred in denying his motion to suppress. Defendant argues that the State failed to establish reasonable cause necessary for an investigatory stop, as the evidence did not establish that he was obstructing the roadway. He also contends that, even if the officers conducted a lawful investigatory stop, they had no reason to suspect that their safety or the safety of others was in danger. Hence, the search was unlawful, and any evidence seized should have been suppressed.

In denying Defendant’s motion to suppress, the trial court stated:

After consideration of the evidence adduced and the applicable law, it is found that the officers had sufficient probable cause to stop the defendant. The defendant’s subsequent actions further enhanced the probable cause and the “pat down” of the defendant. Based on the totality of the circumstances, a search was appropriate not only for officer safety, but because the officers would have been justified in arresting the defendant. The contraband inevitably would have been discovered in a search incident to arrest.

In State v. Thomas, 02-471, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, 1139-1140 (citations omitted), this court explained:

When reviewing a trial court’s denial of a motion to suppress, the appellate court looks at the totality of the evidence presented at the suppression hearing. Unless the trial court’s conclusions are not supported by the evidence or there exists a clear abuse of discretion, an appellate court should not overturn the trial court’s ruling. In other words, the appellate court will give the trial court’s determination great weight and will not set aside the trial court’s ruling unless clearly mandated by a preponderance of the evidence.

|aq. The Stop: Probable Cause.

“Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or was committing a crime.” State v. Brisban, 00-3437, p. 5 (La.2/26/02), 809 So.2d 923, 927, citing Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). See also La.Code Crim.P. art. 213.

La.R.S. 14:100.1 provides in part:

No person shall willfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, water craft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.

At the hearing on motion to suppress, Corporal Johnson testified regarding Defendant’s actions as follows:

Q So, now you approach him. Does he ... get out of your way, or you just-how did that happen?
A We pulled several feet — we had stopped the unit several feet in front of him. He was still standing in the roadway. We asked him to come to the unit, and that’s when he approached us.
Q Okay. Now, you said he’s still standing, and I think earlier you said he was walking. Which one—
A I think he might have stopped when we got close to him, when we started stopping the unit.

Corporal Johnson testified that he did not recall seeing any other vehicles on the street that day. Corporal Hooper testified regarding traffic conditions as follows:

Q Okay. Was any traffic, vehicular traffic, on the roadway?
A [Tjhere’s always traffic on that road. It’s a busy street. He was obstructing our ... traffic at the time, therefore he was obstructing a road.
|4Q Okay. But I’m talking about when you saw him in the road, was there any other cars, trucks, on the road?
A I couldn’t tell you. I couldn’t — I couldn’t recall, sir.
Q You don’t recall?
A I don’t recall, I just—
Q If I suggested to you that Officer Johnson stated there was no other vehicular traffic on the roadway, would you have any cause to not believe that?
A I couldn’t recall, sir. I was focused on Mr. Malveaux standing in the middle of the roadway,—
A I was focused on Mr. Malveaux standing in the roadway, obstructing our traffic, as we were—
Q Obstructing your traffic?
A —coming.
Q Okay. But you didn’t observe him obstructing any other traffic?
A I couldn’t recall, sir. He was obstructing the roadway.

Corporal Hooper also stated that “we decided he was obstructing our traffic ... so we decided to stop him.”

The record indicates that Defendant was walking down the middle of the street and stopped as the officers slowed their patrol car. Because there is no testimony regarding the layout of Martha Street, it cannot be determined from the record whether that street is a one, two, or four lane roadway, or whether Defendant was walking down the center line of the street or in the middle of the lane in which the officers were traveling. Additionally, the officers did not testify that they could not have continued driving in their lane of travel because of Defendant’s presence on the street. Based on the evidence presented at the hearing, we cannot say that there was ^probable cause to arrest Defendant for obstructing a public passage under La.R.S. 14:100.1.

b. The Stop: Reasonable Suspicion and Flight.

Both the Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Law enforcement officers illegally detaining a person may constitute an unreasonable seizure. [State v.] Lewis, 97-1244 [(La.App. 3 Cir. 3/6/98)]; 728 So.2d 1[, writ denied, 98-977 (La.9/18/98), 724 So.2d 752]. However, the Louisiana Code of Criminal Procedure authorizes investigatory stops in certain circumstances. Specifically, La. Code Crim.P. art. 215.1(A) provides:
A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
An investigatory stop is no less a restriction on a person’s liberty of movement than an arrest. State v. Senegal, 95-0796 (La.App. 3 Cir. 12/6/95); 664 So.2d 832. Yet, an investigatory stop is considered less of an intrusion because it is briefer than an arrest. Id. Consequently, unlike an arrest which requires probable cause to believe that a crime has been committed, an investigatory stop may be made under a more relaxed reasonable suspicion standard. [State v.] Purvis, 96-787 [(La.App. 3 Cir. 12/11/96)]; 684 So.2d 567.
An evaluation of whether a police officer had a reasonable basis for an investigatory stop requires looking objectively at the totality of the circumstances known to the officer at the time of the challenged action. [State v.] Bargeman, 98-617 [(La.App. 3 Cir. 10/28/98)]; 721 So.2d 964[, writ denied, 99-33 (La.5/28/99); 743 So.2d 658]. A law enforcement officer cannot stop a person upon a generalized suspicion or hunch. Lewis, 97-1244; 728 So.2d 1; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Instead, the officer must be able to articulate objective facts to support his suspicion of criminal activity. Id. Thereafter, deference must be given to the reasonable inferences drawn by the law enforcement officer in light of his experience. Id.

Thomas, 02-471 at pp. 4-5; 829 So.2d at 1140.

| (¡However, as the supreme court explained in State v. Lewis, 00-3136, pp. 3-4 (La.4/26/02), 815 So.2d 818, 820-821, cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002):

It is settled that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen — ” Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)(White, J.); see also Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)(“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times.”) (citations omitted). An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave. Royer, 460 U.S. at 501, 103 S.Ct. at 1326; see also I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984)(“[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”); 4 Wayne R. LaFave, Search and Seizure, § 9.3(a), pp. 100-101 (3rd ed. 1996)(“The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.”) (footnotes omitted).
When the police lack reasonable suspicion to detain an individual by force or by submission to a show of official au-thorlty, see California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the individual “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” Royer, 460 U.S. at 498, 103 S.Ct. at 1324. However, the decision in Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), makes clear that flight is not the equivalent of a mere refusal to cooperate for purposes of the Fourth Amendment:
Headlong flight — whenever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably 17demand scientific certainty from judges or law enforcement officers where none exists....
Such a holding-is entirely consistent with our decision in [Royer], where we held that when an officer without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ [Bostick, 501 U.S. at 437, 111 S.Ct. at 2387]. But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

In Lewis, 815 So.2d 818, the court con-' eluded that, with or without reasonable suspicion, the officers had a right to approach the defendant and his companion and ask questions. The request without a greater show of authority did not turn the encounter into a forcible detention and did not bring on the defendant’s flight.

In State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989, the supreme court further explained: “Given the highly suspicious náture of flight from a police officer, the amount of additional information required in order to provide officers a reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened.” In Benjamin, the defendant began to run upon seeing the marked police unit, holding his waistband as if he were supporting a weapon or contraband. These facts were sufficient to raise a reasonable suspicion that the defendant either was engaging or was about to engage in criminal activity and, thus, justified a stop.

At the time Corporal Johnson encountered Defendant, the officer had no information that Defendant was distributing drugs, was acting suspiciously, or was intoxicated. Corporal Hooper commented that the “area is a very high drug traffic |sarea.” However, no basis for his opinion was given. Both officers testified that Defendant appeared to be nervous and was looking around in all directions when they approached him.

Corporal Johnson testified' that he had no reason to believe Defendant had contraband or a weapon in his left hand and that he did not fear for his safety when he encountered Defendant. When asked why Defendant was chased, Corporal Johnson responded: “We chased him -because, like I said, ... we had stopped him for the traffic obstruction, and we were trying to find out what was going on, plus the fact that ... we believed he had something in his hand.” According to Corporal Hooper, “My purpose was to advise him that he was obstructing a roadway, and to ask him to get off to the side of the roadway, after we found out what he was doing in the roadway to begin with. That area is a very high drug traffic area, I mean.”

It is clear that Corporals Johnson and Hooper were allowed to ask Defendant for identification and to question him about his actions. Even assuming the chase initiated by the officers indicated an actual stop was imminent, the totality of the circumstances known to the officers at the time, including Defendant’s nervousness, their belief that Defendant was clutching something in his hand, and Defendant’s unprovoked flight, gave rise to reasonable suspicion for an investigatory stop. See Lewis, 815 So.2d 818.

c. The Search.

[E]ven after a lawful stop, a police officer is not always justified in frisking a suspect for weapons. See State v. Hunter, 375 So.2d 99 (La.1979). A weapons frisk is justified under circumstances where a “reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (1968). It is sufficient that an officer establish a “substantial possibility” of danger by pointing to particular facts which support such a reasonable inference. State v. Bolden, 380 So.2d 40, 42 (La.1980), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980). La.Code Crim.P. art. 215.1(B) provides statutory authority for an officer conducting an investigatory stop to conduct a pat down search of the outer clothing for dangerous weapons and, as the courts have noted, in many situations the circumstances that justify the investigatory stop also warrant the frisk. State v. Mingo, 93-827 (La.App. 1 Cir. 6/24/94), 638 So.2d 1209.

Lewis, 97-1244 at p. 10; 728 So.2d at 6.

“When a police lawfully pats down a suspect’s outer clothing and feels an object ‘whose contour or mass makes its identity immediately apparent,’ ‘if the object is contraband,’ it can be lawfully seized without a warrant.” State v. Howard, 00-2405, p. 10 (La.App. 4 Cir. 4/11/01), 787 So.2d 404, 411, writ denied, 01-1381 (La.4/19/02), 813 So.2d 417, quoting Minnesota v. Dickerson, 508 U.S. 366, 369-70, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). In Howard, the court upheld the warrantless seizure of “hard objects” felt in the defendant’s pockets pursuant to the “plain feel” exception, where the officer had much experience in narcotics investigation and was acting pursuant to a citizen complaint that the defendant had participated in illegal activity.

Corporal Hooper testified that he became afraid that Defendant might have a weapon when Defendant reached for his left pants pocket while the officers attempted to subdue him. This justified the officers conducting a limited pat down of Defendant’s outer clothing for weapons. Testimony indicated the officers reached into the Defendant’s pocket. However, there was no testimony that the officers detected a weapon or what they believed to be contraband in Defendant’s left pocket. As noted, the suspect material consisted of fragments or particles that were not identifiable by touch. Accordingly, any intrusion into Defendant’s left pocket went beyond the scope of that allowed by Terry, and the evidence seized was inadmissible at trial.

| m“If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.” Benjamin, 97-3065 at p. 8; 722 So.2d at 989, citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

Because the trial court’s conclusion to the contrary was not supported by the evidence, Defendant’s motion to suppress should have been granted.

Decree

For the above reasons, Defendant’s conviction and sentence are vacated, and the matter is remanded for further proceedings.

REVERSED AND REMANDED.