author: CHIASSON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Ron McDERMITT and Leslie McDermitt.
    No. 81-KA-0824.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John L. A. Len-fant, IV, David C. Forrester, Elizabeth V. Ward, Asst. Attys. Gen., David Caldwell, Dist. Atty., for plaintiff-appellee.
    Captan Jack Wyly, Lake Providence, Herschel C. Adcock & E. Wade Shows, of Ad-cock, Dupree & Shows, Baton Rouge, for defendant-appellant.
   CHIASSON, Justice Ad Hoc.

The defendants, Ron McDermitt and Leslie McDermitt, were charged by bill of information on April 16, 1980, with thirteen counts of Medicaid fraud in violation of La.R.S. 14:70.1. The State subsequently dismissed one count. The defendants pleaded not guilty and filed motions to suppress the evidence and quash the bill of information. After the trial court overruled these motions, the defendants were tried by a six person jury who found both defendants guilty of all twelve counts in the bill of information. On January 9, 1981, the defendants were each sentenced to one year at hard labor on Count No. 1, and various suspended sentences ranging from one to five years on the remaining eleven counts. The defendants have appealed their convictions and sentences, and remain free on an appeal bond.

Most of the facts in this case appear undisputed. Both the State and defense have accepted the following version of the facts.

During a routine check of nursing homes, Thomas Cain, a financial investigator for the Louisiana Department of Justice, Medicaid Fraud Control Unit, seized drugs belonging to patients in a nursing home located in Bastrop, Louisiana. Labels on said vials identified them as having been obtained from Epps Pharmacy in Epps, Louisiana, located in West Carroll Parish. Because the appearance of the pills contained in said vials did not correspond to photos in the Physician’s Desk Reference of the drugs enumerated on the labels, Mr. Cain seized said drugs and vials and transported them to Baton Rouge.

Epps Pharmacy, Inc. was a medicaid provider as a result of an agreement with the State. Claim forms were submitted by Epps Pharmacy, Inc. to Computer, Inc., which transferred the information from the claim forms onto magnetic tapes and transferred said tapes to EDS Federal in Baton Rouge, an intermediary for the State that pays the medicaid provider.

Cain obtained a history profile from EDS Federal of each medicaid recipient whose drugs had been seized from EDS Federal and found that the State had been billed for the brand name drugs listed on the labels. He then obtained confirmation from a pharmaceutical consultant that the brand name drugs listed on the label were not contained in the vials. Cain interviewed other recipients in West Carroll Parish and followed the same procedure to locate discrepancies between drugs contained in vials and those listed on the label. Cain’s investigation thus revealed that the McDermitts were defrauding the Medicaid Program through their operation of Epps Pharmacy by supplying Medicaid recipients with generic drugs while billing the Medicaid Program for the higher priced brand name drugs.

Investigator Cain subsequently discovered that both McDermitts were also pharmacists at Gibson Drugs, Inc. in East Carroll Parish. Cain decided to run a computer list of Medicaid recipients that the McDermitts provided prescriptions to in East Carroll Parish. The computer run generated a list of some thirty Medicaid recipients supplied by Gibson Drugs, Inc. Letters were sent to each recipient requesting them to appear at the Lake Providence Welfare Office with their drugs. Twenty-six recipients showed up. When the investigator discovered that drugs in fifteen of the recipients’ vials did not correspond to the description of the drugs in the Physician’s Desk Reference, they confiscated these vials and submitted the drugs therein to Baton Rouge for testing. These lists verified that the drugs in the vials were not the ones described on the label of the vials. A history profile of these prescriptions was ordered from Electronic Data Systems (EDS), a physical intermediary for this State which actually pays Medicaid claims upon presentment. The history profile revealed that EDS was billed for the higher priced drugs labeled on the vial instead of the cheaper, generic ones contained in the vial. It was discovered that Computer, Inc. was the company which presented these bills to EDS on behalf of Gibson Drugs, Inc. Twelve of the aforementioned fifteen prescriptions formed the basis for the twelve count bill of information from which the defendants were convicted on all twelve counts.

The defendants make ten arguments on eighteen assignments of error in this appeal.

ASSIGNMENTS OF ERROR NUMBERS 6 AND 12

Defense counsel argues that the trial court erred in admitting evidence concerning other alleged crimes and acts of the defendants which did not directly pertain to the offenses charged. The evidence in issue pertains to similar acts allegedly committed by the defendants in another pharmacy they operated in a different parish. Defense counsel first argues that this evidence has no independent relevance to the charges pending in East Carroll Parish because the evidence of alleged criminal acts committed in the operation of a separate business in a different parish was admitted to show defendants’ criminal disposition instead of an element of the offense. Defense counsel also submits that the testimony regarding substitution of generic drugs for brand name drugs was also erroneous because it implied that this was a crime when substitution of generic drugs is not a crime. Defense counsel next contends that the State did not comply with mandatory procedural safeguards before introducing “other crimes” evidence, as required by State v. Prieur, 277 So.2d 126 (La.1973). In challenging the State’s failure to adequately notify defendant of which “other crimes” the State intended to introduce, defense counsel appears to concede that the prescriptions listed in the State’s notice complied with the procedural safeguards set out in State v. Prieur, supra. However, he maintains that the trial court erroneously admitted a barrage of evidence unrelated to the trial at hand, including:

_numerous vials of drugs filed at Epps Pharmacy;
—tape billing verification reports for Epps Pharmacy;
. — recipient medical history profiles in glo-bo — Epps Pharmacy;
—letter from the Executive Director of the Louisiana Board of Pharmacy;
—EDS Federal Corporation remittance and state reports in globo for Epps Pharmacy.

By admission of this evidence, it is contended that the defendants were taken by surprise and were forced to defend against charges for which they were not on trial. Additionally, defense counsel maintains that the Prieur guidelines, requiring the State to affirmatively show that evidence of “other crimes” is not merely repetitive and cumulative and not a subterfuge for depicting the defendant’s bad character, were not met by the State by its mere assertions to this effect. Finally, defense counsel contends that the evidence of other acts by defendants was erroneously admitted because any probative value it did have did not outweigh the risk of undue prejudice to the defendants. It is submitted that the jury gave excessive weight to the evidence of the similar acts and thereby convicted defendants irrespective of their guilt for the present charge.

The State submits that the evidence pertaining to the operations of the defendants’ other pharmacy outside East Carroll Parish has independent relevance to the present case in that it tends to show “intent, knowledge and system” by the defendants in defrauding the State Medicaid program. It is claimed that evidence of these other acts establishes (1) intent of the defendants to defraud the State as opposed to mere mistakes or accident; (2) knowledge of the wrongdoing because both defendants were responsible for filling the prescriptions and billing the same to the State; and (3) a system of defrauding the State Medicaid program by supplying customers with the cheaper generic drugs yet billing the State for the more expensive brand name drugs from both pharmacies during the same time period. The State submits that their written notice setting forth the aforementioned purposes for introducing this evidence; the Rx#, prescription name and generic name of each prescription the State intended to introduce as “other crimes”; and the alleged strategy employed by the defendants in their system of deception, complied fully with the procedural safeguards enumerated in State v. Prieur, supra. As to the barrage of unrelated evidence which defense counsel contends he was not notified of, the State argues that these documents only served to trace the billing of false prescriptions from their origin point to their destination in Baton Rouge. The State submits that their “other crimes” did not prejudice the defendants because this evidence did not surprise, confuse or unduly sway the jury.

Generally, evidence of criminal offenses other than the ones defendant stands trial on are inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Prieur, supra; 1 Wigmore, Evidence § 194 (3rd Ed.); McCormick on Evidence, § 190 (Cleary Ed. 1972). However, La.R.S. 15:445 and 446 provide the following general exceptions to this exclusionary rule:

La.R.S. 15:445:
“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
La.R.S. 15:446:
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

In State v. Prieur, supra, this Court outlined the following general procedural safeguards to be followed when the State intends to offer evidence of other criminal offenses under La.R.S. 15:445 and 446:

“(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
“(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
“(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.
“(4) When the evidence is admitted before the jury, the court, if requested by defense counsel, shall charge the jury as to the limited purpose for which the evidence is received and is to be considered.
“(5) Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto.”

In the present case, the State has substantially complied with the guidelines set forth above. The barrage of evidence which defense contends they were not notified of by the State all correlates and substantiates the entire fraudulent scheme. The contested evidence was incidental, yet necessary, to convincingly show the commission of other crimes and the defendants’ connection therewith. Defendants’ contention of fatal error, in the State failing to make a prerequisite showing that the other crimes evidence was not cumulative or repetitive, is without merit because such a pretrial evi-dentiary hearing, although preferable, is not always required. State v. Hatcher, 372 So.2d 1024 (La.1979). See State v. Walker, 394 So.2d 1181 (La.1981). (Failure to strictly comply with Prieur guidelines does not necessarily warrant reversal.)

In State v. Hatcher, supra, this Court outlined the following prerequisites to admitting evidence of other criminal offenses to prove guilt:

“In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and th'e defendant’s connection therewith; State v. Prieur, 277 So.2d 126 (La.1973); see also, State v. Gaines, 340 So.2d 1294, 1298 (La.1977) (concurring opinion); McCormick on Evidence, § 190, pp. 451-52 (2d ed. 1972); (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La.1977) (concurring opinion); (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crirrie on trial because he is a man of criminal character. State v. Frederick, 340 So.2d 1353 (La.1976); (4) the other crimes evidence must tend to prove a material fact genuinely at issue; State v. Ledet, 345 So.2d 474 (La.1977); (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977).”

The other crimes evidence in the present case meets each of the five aforementioned tests. The commission of the other crimes was proved convincingly. The fraudulent scheme of substituting generic for brand name drugs while billing the State for the higher brand name is sufficiently unique and identical in the operation of both of defendants’ pharmacies. Specific intent to defraud the Medicaid program was a genuine issue in this case and the other crimes evidence was substantially relevant in proving this intent. Finally, the probative value of these extraneous crimes outweighs any possible contention of prejudicial effect.

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 2

By these assignments defense counsel argues that the State failed to prove all the essential elements of the crime of Medicaid fraud under La.R.S. 14:70.1.

La.R.S. 14:70.1 defines the crime of medicaid fraud as follows:

“The crime of medicaid fraud is the act of any person, who, with intent to defraud the state through any medical assistance program created under the federal Social Security Act and administered by the Department of Health and Human Resources:
(1) Presents for allowance or payment any false or fraudulent claim for furnishing services or merchandise; or
(2) Knowingly submits false information for the purpose of obtaining greater compensation than that to which he is legally entitled for furnishing services or merchandise; or
(3) Knowingly submits false information for the purpose of obtaining authorization for furnishing services or merchandise.
“Whoever commits the crime of Medicaid Fraud shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than ten thousand dollars, or both.”

La.R.S. 15:271 provides that “(T)he plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.”

Defense counsel contends that (1) it was not sufficiently proved that Ron McDermitt and Leslie McDermitt presented these fraudulent claims in that: the signatures on the claim information sheets were not proven to be theirs; Computer, Inc., presented these claims to the State as an agent of Gibson Drugs, Inc., not Ron or Leslie McDermitt; and Leslie McDermitt, being a mere employee, did not have the authority to present a claim to Computer, Inc.; (2) the State failed to show that the defendants had the requisite intent to defraud the medicaid program because there was no evidence that these drugs were in stock at Gibson Drugs, Inc.; and (3) proper venue was not proved because the “presentment” of fraudulent claims to the State was in East Baton Rouge Parish, and not in East Carroll Parish.

Defense counsel’s argument that the State did not prove that the defendants themselves presented these fraudulent claims has no merit. Both defendants were pharmacists in Gibson Drugs, Inc. and substituted the generic drugs for the higher priced brand name drugs. Additionally, they labeled the vials with and billed the Medicaid program for the higher priced brand name drugs. The overwhelming circumstantial evidence establishes that Ron and Leslie McDermitt were both inextricably involved in • the entire fraudulent scheme.

The law with regard to principals disposes of defense counsel’s objections regarding the State’s failing to prove that the defendants themselves presented these false claims.

Defense counsel’s contention that the State failed to show that defendants possessed the requisite specific intent to defraud the state is without merit. Specific intent is a state of mind and, as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Procell, 365 So.2d 484 (La.1978); State v. Elzie, 343 So.2d 712 (La.1977). The requisite intent can easily be inferred from the overwhelming evidence of substituting generic drugs in the operation of both Gibson Drugs, Inc. and Epps Pharmacy and labeling them with brand names.

Defense counsel’s contention that the State did not adequately prove proper venue is without merit. La.C.Cr.P. art. 611 provides:

“All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.”

Disregarding the untimeliness of this argument, it becomes apparent that at least most of the fraudulent acts were committed at defendants’ place of business in East Carroll Parish.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 5

By this assignment defense counsel argues that defendants were convicted under an invalid and unconstitutional statute. It is submitted that La.R.S. 14:70.1(1) is unconstitutionally vague in that it does not define what constitutes “presentment” and that the defendants did not have notice as to what acts constituted the offense of Medicaid fraud. Defense counsel also contends that the maximum five year term of imprisonment which may be imposed under La.R.S. 14:70.1 constitutes cruel and unusual punishment.

Men of common intelligence need not guess as to the meaning of “presents” as used in the Medicaid fraud statute. State v. Prestridge, 399 So.2d 564 (La.1981). It is clear that a defendant would have to submit or bring forward a fraudulent claim. Defendants should easily understand that submitting bills to Computer, Inc., the intermediary which transmitted the bills for eventual payment by the State, when these bills charged the more expensive brand name drugs while defendants filled the prescriptions with generic drugs, constitutes the presentment of a fraudulent claim to the State.

Defense counsel’s argument that the penalty provision embodied in La.R.S. 14:70.1 is unconstitutional is also without merit.

A penalty can be deemed excessive if it is grossly disproportionate to the severity of the crime. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). To determine whether the penalty is grossly disproportionate to the crime this Court considers the punishment and the crime in light of the harm to society caused by its commission and determines whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Bonanno, supra; State v. Beavers, 382 So.2d 943 (La.1980).

A maximum five year term of imprisonment, with no mandatory minimum sentence, is not grossly disproportionate to the crime of Medicaid fraud when viewed in light of the harm to society caused by its commission. There is a harm caused the general public by defrauding welfare programs which is not present in other crimes, such as false accounting and issuing worthless checks. It is not irrational for the legislature to set a higher range of penalties for welfare fraud.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER 3 AND 4

By these assignments defense counsel argues that the trial court erred in denying defendants’ Motion to Suppress and Motion to Quash, since the institution of the proceedings against the defendants, and the evidence obtained thereby, was conducted by the Attorney General’s Office in violation of Article 4, Section 8 of the 1974 Louisiana Constitution. Defense counsel submits that the complete investigation of this matter was conducted by the Attorney General’s Office and that the District Attorney’s March 15, 1980, written request to the Attorney General’s Office for assistance as well as his signature on the bill of information were obtained solely as devices to legitimize the participation by the Attorney General’s Office.

The issue has been previously disposed of by this Court in Matter of Morris Thrift Pharmacy, 397 So.2d 1301 (La.1981), in which it was stated:

“Article IV, Section 8, speaks of limitations on the attorney general’s power to initiate, intervene and assist in criminal prosecutions. These sections limit the attorney general’s power to prosecute but not his ability to investigate.” (Footnote omitted).

Therefore, in the present case, the evidence gathered prior to the institution of the prosecution was not obtained pursuant to an illegally authorized investigation. The District Attorney’s letter requesting the assistance of the Attorney General’s Office in prosecuting this matter is a sufficient constitutional predicate for the Attorney General’s Office involvement in the prosecution of the case itself.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NUMBERS 7, 8, 9, 10, AND 13

By these assignments defense counsel argues that the trial court erred in various evidentiary rulings. The rulings pertain to the business record exception to the hearsay rule, the failure to lay a proper foundation for the admission of a letter certifying the permit and license of Gibson Drugs, Inc., the introduction of customers’ information sheets in violation of an alleged pharmacist-customer privilege, the violation of the best evidence rule and the allowance in evidence of defendants’ reputation in their “business community” rather than in their “residential community.” The trial judge’s rulings on these matters were correct and none of the contentions are substantial enough to warrant further discussion.

ASSIGNMENT OF ERROR NUMBER 14

By this assignment of error defendants complain of alleged improper comments made by the prosecutor to the jury. Defendants made no timely objection to the comments nor did they move for a mistrial. The failure to timely object or to move for a mistrial constituted a waiver of the alleged error. State v. Jones, 381 So.2d 416 (La.1980). This alleged error is therefore not properly before us for review on appeal.

ASSIGNMENT OF ERROR NUMBER 11

In this assignment of error defendants argue that the trial judge erred in not granting them a mistrial because of the comments made by the trial judge in the presence of the jury. We find that the trial judge was merely attempting to clarify a previous stipulation, but in any event, the type of comments made by the trial judge can be cured by admonishing the jury which the trial judge did do in this case. Further, the comment on the evidence was not prejudicial to defendants.

ASSIGNMENTS OF ERROR NUMBERS 15 AND 16

In these assignments of error defendants complain of alleged improper charges to the jury. The first complaint is leveled at the jury charge concerning “agent of the accused.” Defendants contend that Computer, Inc. was the agent of Gibson Drugs, Inc. and not the personal agent of the defendants; that Ron McDermitt signed the power of attorney on behalf of Gibson Drugs, Inc. and not as agent for himself; that Leslie McDermitt was merely an employee of Gibson Drugs, Inc.; and that Computer, Inc. was clearly not acting as their personal agent.

Defense counsel’s contention of an insufficient showing of agency to charge the jury on the law concerning “agent of the accused” is meritless. Testimony and exhibits establish that both defendants were pharmacists of Gibson Drugs, Inc., who contracted with Computer, Inc. to process their Medicaid claims for the prescriptions filled on behalf of Medicaid recipients. Under the La.R.S. 14:24 law of principals, both defendants are responsible for the acts performed by Computer, Inc. as agent of Gibson Drugs, Inc.

The second complaint is leveled at the jury charge concerning “other acts” evidence to show knowledge, system, or intent. Defense counsel contends that the trial judge erroneously charged the jury on “other acts” evidence to show knowledge, system, or intent by commenting on the evidence or recapitulating the evidence in violation of La.C.Cr.P. art. 806. The record reveals that no objection was made to this contested charge to the jury nor was the issue raised after the jury deliberated. Since defense counsel did not bring the alleged error to the attention of the trial judge at a time when the trial court could cure the alleged error, the objection is deemed waived as to this issue. State v. Mack, 403 So.2d 8 (La.1981).

ASSIGNMENT OF ERROR NUMBER 17

In this assignment defense counsel argues that the trial court’s refusal to allow both co-counsels to make certain portions of the closing argument to the jury denied defendants of their constitutional right to effective assistance of counsel.

The trial judge was willing to allow each counsel to argue on behalf of his own client, but she would not allow different attorneys to argue different aspects of the case. No prejudice has been shown by defendants and we find no abuse of discretion by the trial court in this ruling.

ASSIGNMENT OF ERROR NUMBER 18

In this assignment of error defendants complain of excessive sentences and of the failure of the court to comply with La.C. Cr.P. art. 894.1.

Each defendant was sentenced to a one year term of imprisonment to be served at the East Carroll Parish Prison Farm. On Count No. 2 each defendant was sentenced to five years at hard labor, running consecutively to the sentence imposed on Count No. 1. However, the sentence was suspended and defendants were placed on probation conditioned in part on community service after they are released from jail. The sentences on the remaining counts ranged from two to five years, all suspended and all running concurrently with the sentences imposed under Counts Nos. 1 and 2. The sentences are well within the statutory limits and we find no abuse of the wide discretion granted to the trial judge in the imposition of sentences. Article 1, Section 20 of the 1974 Louisiana Constitution; State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).

We find that the trial court substantially followed the La.C.Cr.P. art. 894.1 guidelines in sentencing the defendants. Among other factors, the trial court noted that defendants made no effort to make restitution; defendants were in need of correctional treatment; any lesser sentence would deprecate from the seriousness of the offense; the victim (State) was not compensated; the defendants were unlikely to respond solely to probationary treatment; criminal conduct might reoccur; and, although the defendants did not contemplate that their acts would cause serious harm, it did seriously harm the Medicaid program. The record affirmatively shows the trial judge did consider the guidelines and it is not necessary in this instance for the trial judge to articulate every aggravating or mitigating circumstance under La.C.Cr.P. art. 894.1. State v. Gulden, 399 So.2d 194 (La.1981).

Finding no merit in any of defendants’ arguments, the convictions and sentences are affirmed.

       Judges CHIASSON, EDWARDS and LEAR of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice DIXON, Justices MARCUS, BLANCHE and LEMMON.

      . La.R.S. 14:24 provides:
      “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

      . This objection should have been urged in a Motion to Quash under La.C.Cr.P. art. 532.


source: Caselaw Access Project

author: MARCUS, Justice. DENNIS, J.,

license: Public Domain

text:
    TRI-STATE CONCRETE COMPANY, INC. v. Ethel Reed STEPHENS.
    No. 81-C-1091.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      Samuel T. Singer, Winnsboro, for defendant-applicant.
    John B. Benton, Jr. of Kitchens, Benton, Kitchens & Pearce, Minden, for plaintiff-respondent.
   MARCUS, Justice.

Tri-State Concrete Company, Inc., as an owner of an undivided % interest in a 360-acre tract of land and an undivided % interest in a 40-acre tract of land, instituted this action against Ethel Reed Stephens, the owner of the remaining undivided interests in said tracts, seeking a partition by licitation. The 360-acre tract of land is located in Webster Parish while the 40-acre tract of land is located in Bienville Parish.

Mrs. Stephens acquired her interest in the two tracts by inheritance from her father, Robert A. Reed. Mr. Reed never lived on either of these two tracts; rather, the property was used for investment purposes. Mr. Reed raised cattle on the land; he had pecan orchards from which he sold pecans; he had oil wells from which he received royalties; and he sold timber and gravel from the property. Since Mr. Reed’s death, his heirs have continued to receive royalties from producing oil wells located on the Webster Parish property. In November of 1979, Betty Reed Armor, one of the heirs, circulated a letter to her co-heirs concerning the possibility of selling the property. Each of the heirs, including Mrs. Stephens, signed this letter indicating that they would be willing to sell for a fair price. An invitation for sealed bids was sent to 40 or 50 people asking for bids on the 400 acres as a package. Included in this number were Mrs. Stephens’ son and son-in-law. Two bids were received: one from Tri-State for $250,000 and one from Jack D. Tharpe Builders for $150,000. The property had previously been appraised at $450 per acre; the Tri-State bid represented a price of $625 per acre. After the bids were opened, Mrs. Stephens’ son and son-in-law offered $251,000 for the property. Mrs. Armor testified that this offer was rejected because it was not submitted with the other bids. TriState purchased its interests from Mrs. Stephens’ brothers and sisters on January 30, 1980. Mrs. Stephens refused to sell her interest in the property.

In its position, Tri-State alleged that it no longer desired to remain as an owner in indivisión of the two tracts of land and that the property could not be economically divided in kind. Mrs. Stephens answered asserting that the properties were readily susceptible of being partitioned in kind without diminution in value and without loss or inconvenience to any of its owners. The trial judge, finding that the properties could not be divided in kind without loss or inconvenience to the owners, ordered the properties partitioned by licitation. Mrs. Stephens appealed. The court of appeal affirmed, finding that a division in kind of the properties would reduce their value. However, the court amended the judgment of the trial court to set a minimum price of $243,000 at the public sale for the 360-acre tract provided, however, that if the property did not bring the minimum price at the first public sale, it should again be offered at public sale without a minimum price. The court did not set a minimum price for the public sale of the 40-acre tract. On Mrs. Stephens’ application, we granted cer-tiorari to review the correctness of that decision.

The sole issue presented for our determination is whether the properties are susceptible of being partitioned in kind.

No one can be compelled to hold property with another; a division of a thing held in common may be demanded by the action of partition. La.Civ.Code arts. 1289 and 1308. The general rule is that partition in kind is favored over partition by licitation. Unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind. La.Civ.Code art. 1339; La. Code Civ.P. art. 4606. Property cannot be conveniently divided when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it. La.Civ.Code art. 1340. The burden of proof is on the party seeking partition by licitation to prove that the property cannot be divided in kind. Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959); National American Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App. 4th Cir.), writ refused, 276 So.2d 701 (La.1973).

In order to effect a partition in kind, the property must be divided into lots of equal or nearly equal value. It is the function of experts to form the lots which thereafter must be drawn by chance, and not selected, by the co-owners. It is not within the power or province of the judge or the experts to suggest that a certain part or parts of the property be set apart or allocated to one of the co-owners. There must be as many lots as there are shares or roots involved. Pryor v. Desha, 204 La. 575, 15 So.2d 891 (1943); Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652 (1931). See La.Civ.Code arts. 1364 and 1367.

In the instant case, Mrs. Stephens owns an undivided Vs interest in the Webster Parish property and Tri-State owns an undivided % interest. In order to be divided in kind, there must be six lots formed, one to be drawn by Mrs. Stephens and five by Tri-State. With respect to the Bienville Parish property, Mrs. Stevens owns an undivided Vs interest and Tri-State owns an undivided Vs interest. Thus, there must be five lots formed, one to be drawn by Mrs. Stephens and four by Tri-State.

THE 360-ACRE TRACT

The 360-acre tract of land in Webster Parish is irregular in shape. It has 1,980 feet of frontage on a public road along part of its easterly side. There is adequate drainage for the tract except the extreme north section and the southwest 40 acres. The general topography is rolling terrain. Eighty percent of the property is wooded; the remaining twenty percent is cleared pastureland. The wooded portion of the property ranges from good timber, in some areas, to cutover timber. The pastureland, estimated at about 50-60 acres, is located primarily in the north and north central sections of the tract. Mineral rights are not at issue in this partition suit. There are, however, several producing oil wells on the tract and a number of right-of-ways encumbering it.

Considering the variation in topography from one area of the tract to another and the location of the oil wells and various right-of-ways, we conclude that it would be difficult, if not impossible, to divide the property into six tracts of equal value. While the sample plan submitted by Mrs. Stephens’ experts divided the property into six tracts of 60 acres each, the evidence does not show that the tracts are of equal value. It was conceded that a detailed survey taking into account the physical characteristics of the property would have to be made before a final plan could be drawn. The sample plan divided the property into six irregular and unusual tracts due to the irregular shape of the property and its limited amount of frontage on the public road. Several of the tracts consisted of a small frontage on the public road with long narrow corridors rendering them of doubtful desirability or utility. It further appears that one tract was mainly valuable pine-land; one tract was less valuable pastureland; and at least one tract was burdened with an oil well and subject to ingress and egress of the oil producers.

Even assuming that a division into six equal tracts is possible, Tri-State argues that such division would result in a diminution of value and/or loss or inconvenience to the owners. The record contains conflicting evidence as to whether or not a division in kind would result in a reduction in value of the land. We need not rest our decision on this issue since we find that a division in kind would result in loss or inconvenience to Tri-State.

If the property is partitioned in kind, it is highly unlikely that Tri-State will receive a contiguous tract of land. The odds are against it. Still, the lack of contiguity does not per se create inconvenience to the owner. Each case must be examined in light of its own peculiar facts. In the instant case, the record reflects that Tri-State purchased the land for the purpose of mining it for sand and gravel. Tri-State’s expert testified that the highest and best use of the property is for mining sand and gravel. Mrs. Stephens’ experts testified that the highest and best use of the property “would be for a continuation of present and previous uses, including agriculture and sand and gravel production.” Sand and gravel operations have been conducted on three sides of the property as well as on the property itself. Due to the nature of the operations and the use of heavy off-road vehicles, sand and gravel operations require the use of a large tract of land. Considering the nature of the land, the variation in topography from one area to another, the location of the oil wells and various right-of-ways, and the highly irregular shaped tracts which would result from a division in kind, we find that Tri-State would be inconvenienced by a division in kind.

In sum, we conclude that it would be difficult, if not impossible, to divide the property into six tracts of equal value and, even if it could be so divided, we do not consider that it could be accomplished without loss or inconvenience to Tri-State. Accordingly, the court of appeal was correct in affirming the judgment of the trial court ordering partition by licitation.

THE 40-ACRE TRACT

The 40-acre tract of land in Bienville Parish appears to be land-locked with no direct road frontage. There is a railroad right-of-way across the southwest corner of the property. The property consists of 10 acres of pineland and 29 acres of cutover hardwood.

The highest and best use of the property is agriculture or, more particularly, growing timber. Tri-State’s expert, a forester, testified that the property could not be divided into five parts of equal value. His opinion was based on the fact that the pineland, which is more valuable than the hardwood land, was not evenly distributed through the property. Even Mrs. Stephens’ expert testified that if the timber were concentrated in one area of the tract, it would be difficult to divide the tract into five parts of equal value. Under the circumstances, we find that Tri-State has proved by a preponderance of the evidence that the property is not capable of being divided into five tracts of equal value and utility. Hence, the court of appeal was correct in affirming the judgment of the trial court ordering partition by licitation.

Mrs. Stephens further contends that the unequal bidding power of the parties should be considered as a factor in determining the type of partition. We do not agree. The court has discretion to direct the manner and conditions of effecting the partition so that it will be most advantageous and convenient to the parties. La. Civ.Code art. 1336; La.Code Civ.P. art. 4605. Hence, the court of appeal properly resolved the unequal bidding power of the owners in this case by directing the manner and conditions of effecting the partition, that is, setting a minimum price that the 360-acre tract must bring at the public sale, provided, however, that if the property did not sell for the minimum price, it should again be offered at public sale without a minimum price. Considering that there would likely be sufficient competitive bidding to protect each of the owners in the case of the 40-acre tract, the court of appeal found no compelling reason to set a minimum price for the sale of this property. We agree.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

LEMMON, J., concurs.

DIXON, C. J., dissents.

DENNIS, J.,

dissents believing that there was no proof of indivisibility by nature or that partition in kind would result in diminution in value.

      . 395 So.2d 894 (La.App. 2d Cir. 1981).

      . 401 So.2d 355 (La.1981).


author: DOUCET, Justice Ad Hoc.

text:
    STATE of Louisiana v. Gregory K. SNIDER.
    No. 81-KA-0089.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Sonia D. Peters, Dale G. Cox, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert T. Talley, Covington, for defendant-appellant.
   DOUCET, Justice Ad Hoc.

The bill of information in this matter charged the Defendant with the illegal discharge of a weapon, as set forth in La.R.S. 14:94. On October 15, 1980 he pled guilty to the charge and was sentenced to serve two years imprisonment at hard labor. Defendant now appeals on the basis of five assignments of error which are all argued.

STATEMENT OF FACT

Defendant, Gregory K. Snider, was charged by bill of information with the illegal discharge of a weapon, a violation of La. R.S. 14:94. On October 15, 1980, he pled guilty to the charge. Thereafter, the court sentenced him to serve the maximum penalty, two (2) years imprisonment at hard labor.

On the night of March 4, 1980, Gregory Snider and William Gullion went on a drunken shooting spree, indiscriminately firing weapons from an automobile. A security guard at Atlas Refinery was fired at in his pick-up truck as were some of the buildings. There were several reports of residential firings and eyewitness accounts and identifications. The pair stopped at a 7-11 store where they went in waving guns, generally creating terror. On the morning of March 5, 1980, Gullion turned himself in for the shooting spree and gave an inculpa-tory statement implicating Snider in the incident. From this information the police prepared a photographic line-up for the witnesses who identified the two men as the perpetrators. Snider and Gullion were arrested and initially charged with possession of a firearm by a convicted felon (La. R.S. 14:95.1), and illegal discharge of a weapon (La. R.S. 14:94).

Gullion pled guilty to possession of a firearm by a convicted felon on June 6, 1980 and was sentenced to eight years at hard labor, suspended. The judge placed Gullion on probation for five years conditioned on the Defendant successfully completing the Odyssey House program. Since, in 1974, Gullion had been convicted of aggravated robbery in Texas his sentence was ordered served consecutively to any sentence that Texas required him to serve as a parole violator.

On October 15,1981, Snider pled guilty to the illegal discharge of a weapon pursuant to a plea bargain whereby the State dismissed the charge of possession of a firearm by a convicted felon. He had previously been convicted of the unlawful distribution of a controlled dangerous substance in Illinois for which he had already completed probation to his suspended sentence. The judge, in the instant ease, sentenced Snider to two years imprisonment at hard labor.

ASSIGNMENT OF ERROR NUMBERS 1 AND 5:

Defendant contends, by these assignments, that the trial court sentenced him without sufficient articulation of the reasons, as required by La. C.Cr.P. Article 894.1, and that the sentence imposed was excessive.

The requirements of La. C.Cr.P. Article 894.1 are:

A. When a Defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the Defendant will commit another crime;
(2) The Defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the Defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The Defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The Defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The Defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the Defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the Defendant’s criminal conduct induced or facilitated its commission;
(6) The Defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The Defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The Defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the Defendant indicate that he is unlikely to commit another crime;
(10) The Defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the Defendant would entail excessive hardship to himself or his dependents.
C.The Court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

After hearing the argument of counsel and extensively questioning both counsel concerning the facts of the case and the Defendant as to whether the facts as recited were correct and concerning any mitigating circumstances the Defendant might have to offer in his own behalf, the trial court concluded.

We find your criminal conduct is the type that could conceivably reoccur. We do not find your attitude is such that you on your own have sufficient discipline to preclude such conduct recurring. We do not feel that you would likely respond affirmatively to probationary treatment. You were given a prior opportunity.

In support of these conclusions, the trial court found specifically that:

(1) the indiscriminate shooting in residential neighborhoods did threaten serious harm;
(2) defendant had to realize shooting at cars and buildings could cause harm;
(3) there was no provocation for the acts;
(4) defendant’s drunkenness is no defense or excuse for his criminal conduct;
(5) no inducement by the victims of the crime;
(6) defendant has prior criminal activity for which he served probation;
(7) defendant’s conduct could easily reoccur particularly if he continues to drink;
(8) defendant did not respond to prior probation;
(9) defendant has no dependents who would be affected by his imprisonment.

Accordingly, the trial court imposed a maximum sentence of two years imprisonment. The court also specified that defendant would serve his sentence at hard labor. The court obviously made an effort to consider both aggravating and mitigating circumstances. The facts of this case speak strongly for themselves; defendant engaged in a wild, drunken shooting spree that endangered numerous persons. He shot at a pick-up truck at a refinery. Any stray shots at the refinery could have caused a catastrophe, but Defendant obviously had no regard for the possible consequences of his actions. In addition, Defendant terrorized the personnel and patrons of a 7-11 Store, again without regard for the consequences.

Further, Defendant received considerable benefit from the state’s dropping of the much more serious charge under R.S. 14:95.1 (possession of a firearm by a convicted felon).

The sentence imposed was the maximum allowable, however, on the record in this case the sentence is not imposed in an arbitrary manner and is not excessive. The sentence is not grossly disproportionate to Defendant’s conduct nor is it a clear abuse of the trial courts broad sentencing discretion. State v. Bonanno, 384 So.2d 355 (La.1980);

Therefore, the sentence is affirmed.

ASSIGNMENT OF ERROR NUMBER 2:

Defendant contends that sentence was imposed without properly delineating the relative culpability between Defendant and his accomplice.

This argument by Defendant is in reality one of excessive sentencing which was dealt with in Assignment of Error Numbers 1 and 5. There is ample evidence to support the trial court’s imposition of a maximum penalty for the crime charged.

Further, there is no evidence to support Defendant’s argument that he was a minor participant. The record establishes that he not only fired a weapon but drove the vehicle for the escapade. In addition, he was identified, according to the post conviction statement, as one of the persons who fired a weapon at the 7-11 Store.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 3:

Defendant contends that the trial court committed reversible error in basing the sentence upon inadequate and/or hearsay testimony.

Defendant argues that there are discrepancies in the state’s brief in that reference is made both to Defendant “firing in the air” and “in the direction of nearby residences.” Whatever the reason for the discrepancy, the statement of the district attorney filed herein verified that bullets were recovered from various homes. These bullets were identified by the crime lab to have been fired from the guns of two defendants. Witnesses gave statements to the police and identified both men as firing weapons.

The transcript of the sentencing reflects that the judge did question the defendant and his attorney extensively about the incident and the defendant’s criminal record. The judge also gave the defendant a chance to add anything to the testimony but the defendant declined.

Sentencing is based on hearsay testimony. All written documents, pre-sentence reports, prior criminal history, etc., constitute hearsay evidence. The holding by the United States Supreme Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); rejects Defendant’s arguments, saying that a Defendant had no constitutional right to an adversarial sentencing proceeding in which he could cross examine persons who had supplied such information to the court. The Defendant had a chance to cure any real defects at his sentencing. As there are enough facts stated that support his sentence, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 4:

Defendant argues that the trial court committed reversible error in sentencing the Defendant to two years at hard labor without benefit of suspended sentence or probation, thereby creating an unconstitutional disparity of sentences between Defendant and co-defendant, William L. Gullion.

As stated in the sentencing transcript, the Defendant had a prior conviction for unlawful distribution of controlled dangerous substances. It is not contended that this conviction was for anything other than a felony. Hence, under La. C.Cr.P. Article 893 A, the Defendant is not eligible for a suspended sentence and probation.

The Defendant argues the disparity between his sentence and the other principal’s sentence. Defendant’s sentencing must be looked at independently. Since there is evidence to support the maximum of two years at hard labor there is no merit to this argument.

For the reasons assigned, both conviction and sentencing are affirmed.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Justices Calogero, Dennis, and Watson.


text:
    STATE of Louisiana v. Lawrence BOOWELL.
    No. 81-KA-0817.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard Pe-tre, Asst. Dist. Attys., for plaintiff-appellee.
    Howard McCurdy, Dwight Doskey, New Orleans, of Orleans Indigent Defender Program, for defendant-appellant.
   DOUCET, Justice Ad Hoc.

Defendant Lawrence Boowell was charged by bill of information filed January 9, 1981, with two counts of simple burglary of an inhabited dwelling and one count of carrying a concealed weapon by a convicted felon, violations of La.R.S. 14:62.2 and La. R.S. 14:95.1. Defendant was arraigned on January 12, 1981, and entered a plea of not guilty. On January 16,. 1981, defendant filed a motion to suppress items of evidence seized subsequent to his arrest. After the trial court denied the motion to suppress, defendant withdrew his former plea and pled guilty as charged on all counts, reserving his right to appellate review of the trial court’s denial of his motion to suppress. See, State v. Crosby, 338 So.2d 584 (La. 1976). The trial court accepted the plea and sentenced defendant to three years at hard labor without benefit of parole, probation, or suspension of sentence on each count, the sentences to run concurrently.

SYNOPSIS OF FACTS

On December 20, 1980, at approximately 11:00 p. m., Officer Bernard Brady and Officer Chet Ballex of the New Orleans Police Department received a complaint, through the police radio dispatcher, that a suspicious looking two-door blue Pontiac was in the area of 4725 Charlene Drive. When the officers were within three blocks of Charlene Drive, they were stopped by two men in an orange Volkswagen van who identified themselves as Louis Berg, Sr. and Louis Berg, Jr. The men informed the officers that the car they were looking for was a blue Pontiac sedan with one yellow front fender and one red front fender. The officers immediately proceeded toward Read Road with the two citizens following in their van. When they had traveled only a short distance, the citizens flashed their vehicle lights on and off, and pulled up alongside the police unit. The Bergs informed the officers that they had just observed the blue Pontiac going toward Chef Mentuer Highway and they had gotten the license number. The officers radioed this information to headquarters and proceeded toward Chef Mentuer Highway with the Bergs following them. After an unsuccessful search for the vehicle, the Bergs advised the officers that the mailman in the 4500 block of Charlene Drive, Ronald Berry, was familiar with the case.

The officers located Berry and questioned him about the suspicious vehicle. Berry told the officers that he delivered mail in the area every day and for last two or three weeks he had observed a blue two-door Pontiac Lemans, with one red fender and one yellow front fender, in the area on several occasions. He told the officers that on that particular morning he noticed the car moving slowly on Charlene Drive, occupied by three black males. He told the officers that he observed the car stop in front of 4711 Charlene Drive, let one of the passengers out, and drive away. He described the passenger who exited the car as approximately 5'11", 140 pounds, wearing dark trousers, a coat, and a hat. Berry stated that he continued on his route until he stopped to speak with the Bergs about the suspicious character. The Bergs and Berry told the officer that the three of them walked toward 2711 Charlene Drive and approached the man standing in front of the house. They told the officer that the man began running and they chased him into the backyard area, where he disappeared.

The officer testified that another police unit, manned by Sergeant Joseph Giardina of the New Orleans Police Department, radioed that the vehicle in question had been observed on Chef Mentuer Highway near Bundy Road. Officer Brady testified that they immediately proceeded toward the area, and observed Sergeant Giardina pulling over a vehicle which fit the description given to them by the citizens. The officer stated that Sergeant Giardina got out of his marked unit and the three of them approached the defendant who was getting out of his vehicle. Sergeant Giardina approached the defendant and requested his driver’s license and vehicle registration. After defendant stated that he did not have a driver’s license and that the car belonged to one Jimmy Frank, he was placed under arrest for driving without a license. The vehicle registration could not be verified because “the computer system was down”. Officer Ballex searched the defendant’s person and found a .22 caliber revolver. Officer Brady stated that he noticed a camera case lying open, on its side, on the back seat of the vehicle. The camera case contained several rounds of ammunition, several watches, and a couple of rings. A calculator was on the back seat and a camera was lying on the floor. On the basis of Brady’s testimony, the trial court denied the motion to suppress.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the trial court erred in denying the Motion to Suppress Evidence seized from defendant’s person and the vehicle following arrest.

The conduct described to the police officers by the Bergs and Berry was at least suggestive of a “casing” of the neighborhood. It could have been a reconnaissance of the vicinity prior to a burglary of some of its homes. In the past, this court has not required much more of a showing to justify a forcible detention. State v. McGary, 397 So.2d 1305 (La.1981). In McGary, supra, there was a report to the police of suspicious activity of two cars parked at a day care center. The drivers of both cars were questioned at the scene and subsequently contraband was recovered from both cars. This court held in that case that in the circumstances presented there, “. . . the report he [Officer Pierson] had from the manager of the Day Care Center was more than sufficient to justify his stopping McFadden and McGary for questioning.” and that the contraband discovered in plain view after the stop was admissible into evidence. Accordingly, we hold that the stop of Lawrence Boowell’s vehicle was justified, based on the information received by the officers from the Bergs and Berry and that the evidence seized as a result of this investigatory stop was admissible into evidence at trial.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in imposing an illegal sentence for the two counts of simple burglary of an inhabited dwelling.

Defendant was sentenced to serve three years at hard labor without benefit of parole, probation, or suspension of sentence on each count, the sentences to run concurrently-

Defendant’s counsel argues that the trial court should not have included ineligibility for parole, probation or suspension of sentence as a part of the entire sentence imposed for the two counts of simple burglary of an inhabited dwelling. He urges that the sentence imposed was not authorized by La.R.S. 14:62.2 and is therefore illegal. He correctly states that an illegal sentence is an error patent and is subject to amendment at any time. State v. Patterson, 384 So.2d 790 (La.1980); State v. Cain, 382 So.2d 936 (La.1980): If a sentence is illegal, it may be vacated and corrected at anytime. La.C.Cr.P. Article 882; State v. Siegel, 354 So.2d 525 (La.1978).

The determination of whether an illegal sentence was actually imposed, however, requires an interpretation of La.R.S. 14:62.2. The penalty provision of that Article provides:

Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor more than twelve years.

Defense counsel argues that the statute clearly requires that only the minimum sentence include the ineligibility provision. He urges that a legal sentence in this case would have been concurrent terms of three years at hard labor on each count, with the defendant deemed ineligible for parole, probation or suspension of sentence, during the first year.

The trial court interpreted La.R.S. 14:62.2 as requiring that the defendant be sentenced up to twelve years without benefit of parole, probation or suspension of sentence. As written, the sentencing provision of La.R.S. 14:62.2 is ambiguous. Either the interpretation of the trial court or that of defense counsel could be considered reasonable.

It is a fundamental principle of statutory construction that penal provisions are strictly construed in favor of defendant, who must be afforded the benefit of genuine ambiguity. State v. Brown, 378 So.2d 916 (La.1978); State v. Bosworth, 373 So.2d 152 (La.1979); State v. Young, 357 So.2d 503 (La.1978).

This court should strictly construe La.R.S. 14:62.2 in the defendant’s favor. Therefore, we hold that the sentence imposed in this case is illegal and remand the case for resentencing.

AFFIRMED IN PART, REMANDED FOR SENTENCING.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Justices Calogero, Dennis and Watson.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    Bobby R. NALL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 81-C-1335.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      Philip G. Hunter and Leonard Führer, of Führer & Flournoy, Alexandria, for plaintiff-applicant.
    Dewitt T. Methvin, Jr., of Gist, Methvin, Hughes & Munsterman, Grove Stafford, Jr., and Walter E. May, of Stafford, Stewart & Potter, Alexandria, for defendants-respondents.
   MARCUS, Justice.

Bobby R. Nall, individually and as administrator of the estate of his minor son, Ricky Lane Nall, instituted this action against State Farm Mutual Insurance Company (State Farm) and Government Employees Insurance Company (GEICO) to recover damages for injuries sustained by his son.

Prior to trial, the parties stipulated that Ricky Lane' Nall was injured on September 15, 1979, while a guest passenger in an automobile owned by James D. Ruby, Sr. and operated by his son, James D. Ruby, Jr., with his father’s permission. The Ruby vehicle was involved in a collision with another vehicle and the collision was caused by the negligence of Ruby, Jr. At the time of the accident, plaintiff had two family automobile policies with State Farm, each providing uninsured or underinsured motorist coverage in the amount of $5,000 for each person. State Farm had paid $5,000 under the U/M coverage on one of its two policies but had refused to pay any amount under the terms of the other policy. Also, at the time of the accident, GEICO had issued a policy of automobile liability insurance to Ruby, Sr. providing coverage in the amount of $2,000 in medical payments and $10,000 for bodily injury liability for each person. The policy further provided uninsured or underinsured motorist coverage in the amount of $10,000 for each person. GEICO had paid plaintiff $2,000 under its medical payments coverage and $10,000 under its bodily injury liability coverage but had declined to pay any amount under its U/M coverage. It was further stipulated that the injuries to Ricky Lane Nall called for an award of damages in excess of the aggregate of the amounts previously paid to plaintiff by State Farm and GEICO.

The trial judge rendered judgment rejecting plaintiff’s demands against State Farm and GEICO. The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of that decision.

The issues presented for our consideration are (1) whether plaintiff is entitled to recover under the U/M coverages of both policies issued by State Farm and (2) whether plaintiff is entitled to recover under both the liability and U/M coverages of the GEICO policy.

Plaintiff contends he is entitled to “stack” the U/M coverages of both State Farm policies. La.R.S. 22:1406(D)(1)(c), as amended by Act 623 of 1977 (anti-stacking statute), provides:

If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

We recently interpreted this statute in Courville v. State Farm Mut. Auto. Ins. Co., 393 So.2d 703 (La.1981). In that case, plaintiff, while driving his father’s truck, was injured in a collision with another vehicle caused solely by the negligence of the other driver. Plaintiff sought to stack the U/M coverages of two separate automobile liability insurance policies issued to his father, one covering the truck driven by plaintiff and the other covering another vehicle owned by his father. We held that, while the first paragraph of the statute provides the general rule that an insured with insurance available to him under more than one U/M policy may not stack those policies, the second paragraph allows for an exception when: (1) the injured party is occupying an automobile not owned by him; (2) the U/M coverage on the vehicle in which the injured party was an occupant is primary; and (3) should that primary U/M coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other U/M coverage available to him. In Courville, plaintiff fell within the exception; therefore, he was allowed to stack the U/M coverages of both policies.

In the instant case, the second of these requirements is absent, that is, the U/M coverage on the vehicle in which Ricky Lane Nall was an occupant was primary. Here, neither State Farm policy provided U/M coverage on the vehicle in which Ricky Lane Nall was an occupant. Hence, the result in the instant case is controlled by the general rule stated in paragraph (c) quoted above, that an insured who has U/M coverage available to him under more than one policy may not stack.

Plaintiff further contends that State Farm waived the benefit of the anti-stacking statute by issuing two separate policies providing U/M coverages and collecting two separate premiums. La.R.S. 22:1406(D)(1)(c) clearly negates this contention. Finally, plaintiff contends that Endorsement 6273N to the State Farm policies allows him to recover under the U/M coverage of each policy. That endorsement was added to provide “uninsured motorist” coverage. It is not applicable to the question of stacking.

In sum, the court of appeal correctly denied plaintiff the right to stack the U/M coverages of the State Farm policies.

The second issue presented for our consideration is whether a guest passenger is entitled to recover under both the liability and U/M coverages of his host driver’s insurance policy when the negligence of the host driver caused the accident. Plaintiff argues that La.R.S. 22:1406 allows him to recover under the U/M provision of the GEICO policy even though he has recovered under the bodily injury liability provision of the same policy because his damages exceed the amount of liability insurance. The GEICO policy expressly excludes such coverage. Therefore, if coverage exists, it must be because the policy provisions are invalid as being in derogation of the mandatory requirements of the uninsured motorist statute.

Although La.R.S. 22:1406(D)(2)(b) (as amended by Act 154 of 1974) includes within the definition of an uninsured motor vehicle a statutorily defined underinsured motor vehicle, this provision must be read in light of other pertinent provisions of our uninsured motorist statute and cannot be interpreted in isolation. Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979). One such provision is La.R.S. 22:1406(D)(l)(a) which requires insurance companies to offer coverage to their liability policy holders “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles.” (Emphasis added.) In Breaux, in interpreting this provision, we stated:

A person insured under the uninsured motorist provision of a particular policy delivered or issued for delivery in this state with respect to a motor vehicle registered or principally garaged in this state must establish that he is legally entitled to recover damages from the owners or operators of uninsured or underinsured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the “uninsured or underinsured” motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or unde-rinsured motor vehicle.

We consider the intent and effect of La.R.S. 22:1406(D)(l)(a) to be clear. As stated in Breaux, this provision creates distinctions between (1) persons insured under a particular policy affording uninsured motorist coverage and owners or operators of uninsured or underinsured motor vehicles and (2) the motor vehicle with respect to which such insurance is issued and the uninsured and underinsured motor vehicle. It is thus apparent, as held in Breaux, that our uninsured motorist statute does not mandate protection under the host driver’s uninsured motorist coverage when the cause of the accident is the negligence of the host driver. We adhere to this interpretation. Hence, the clause in the GEICO policy which purports to deny uninsured motorist coverage to plaintiff in the instant case is valid and is not in derogation of the mandatory requirements set forth in the uninsured motorist statute. The court of appeal properly concluded that plaintiff was not entitled to recover under both the liability and U/M coverages of the GEICO policy.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, C. J., dissents with reasons.

WATSON, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Two points are clear.

I. If an endorsement to the policy increases or expands the coverage required by the statute, the endorsement controls, not the statutory provisions. By endorsement, an insurer can permit stacking. Nothing prevents it. State Farm Endorsement 6273N in this case probably operates as a waiver of the “anti-stacking” amendment, since it appears on both policies.

II. R.S. 22:1406 clearly contemplates underinsured motorist coverage for an insured who is a passenger in an underinsured vehicle, and is injured by the negligence of the host driver. That part of Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979) to the contrary is wrong. R.S. 22:1406(D)(2)(b) clearly provides for it:

“For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an uninsured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.”

      . 398 So.2d 201 (La.App. 3d Cir. 1981).

      . 400 So.2d 1390 (La.1981).

      . State Farm Endorsement 6273N provides:
      It is agreed that, with respect to Uninsured Motorist Insurance:
      I. (a) The definition of “uninsured motor vehicle” and “uninsured highway vehicle” shall also include an automobile for which the owner or operator has a bodily injury liability bond or insurance policy applicable at the time of the accident but the limits of such bond or policy are insufficient to pay the full amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident;
      (b) in the event the owner or operator has such a bodily injury liability bond or insurance policy applicable to the accident, this insurance shall apply as excess insurance over such liability bond or insurance policy, up to the amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident subject to the limits specified for this insurance.
      2. (a) Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this insurance shall not be reduced by any sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured motor vehicle or uninsured highway vehicle and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under liability coverage;
      (b) that part of the “Limits of Liability” provision pertaining to such a reduction is amended accordingly.
      3. . The company shall not be obligated to make any payment because of bodily injury to which this insurance applies and which arises out of the ownership, maintenance or use of an uninsured motor vehicle or uninsured highway vehicle until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.

      .Part IV of the GEICO insurance policy issued to James D. Ruby, Sr. provides that GEICO will pay all sums which any insured shall be legally entitled to recover as damages from the owner or operator of an “uninsured automobile.” The policy expressly excludes from the definition of an “uninsured automobile” and “insured automobile” (defined as an automobile described in the schedule as an insured automobile to which the bodily injury coverage of the GEICO policy applies).

      . Louisiana’s uninsured motorist statute embodies public policy, thus any conflicting clause in a policy of insurance is invalid. See Breaux v. Gov. Emp. Ins. Co., 369 So.2d 1335 (La.1979); Seaton v. Kelly, 339 So.2d 731 (La.1976); Dean v. McGee, 261 La. 686, 260 So.2d 669 (1972).

      . La.R.S. 22:1406(D)(l)(a) provides in pertinent part:
      No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, .. . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom .... (Emphasis added.)

      . In a review of Breaux in 40 La.L.Rev. 676, the author stated that the decision was “consistent with the express provisions of the insurance policy and based on a reasonable interpretation of the statute.”


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Calvin STRAUGHTER.
    No. 81-KA-0125.
    Supreme Court of Louisiana.
    Nov. 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick C. Leitz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Philip O’Neill, Gretna, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Calvin Straughter, was convicted of attempted second degree murder and sentenced to 35 years at hard labor. On appeal, he urges 10 assignments of error relating to his conviction and sentence. We find no merit to any of the assigned errors, and accordingly, defendant’s conviction and sentence are affirmed.

The facts underlying the defendant’s conviction are as follows: Defendant had previously dated and lived with Jackie Robinson. At the time of this incident, Ms. Robinson was living with the victim, Herbert Cockerham. On the evening of the shooting, defendant Straughter was seen driving past the residence of Ms. Robinson and Mr. Cockerham. Defendant then parked his car behind a nearby gymnasium in Bunche Village. Later that night, Cockerham and Ms. Robinson drove to the gymnasium in the victim’s car. Cockerham parked his vehicle next to that of the defendant and he and Ms. Robinson got out. At trial, Jackie Robinson testified that Straughter began to argue with Cockerham, then jumped onto the hood of the car, pulled out a gun and fired at the victim. After the first shot, Cockerham began running and the defendant chased him, continuing to fire his weapon. When the victim fell to the ground, the defendant returned to his car and drove away. Ms. Robinson denied the defendant’s testimony that she had been quarreling with the victim at the time of the shooting. She testified that she was standing beside Cockerham when the defendant leaped upon the car and began firing. At the first shot she fell to the ground.

The victim also denied that he had quarreled with Ms. Robinson. Herbert Cocker-ham testified that he was shot 7 times and that the defendant tried to run over him with his ear as he left the scene. He stated that he was unarmed throughout the incident.

Calvin Straughter testified that Herbert Cockerham ran toward the trunk of his car as soon as he stepped out of the vehicle. Believing Cockerham was attempting to obtain a weapon, the defendant reached into his own ear for a .25 caliber pistol. Looking back at Cockerham, Straughter saw him struggling on the ground with Ms. Robinson. Straughter stated that he fired his weapon for the first time to force Cocker-ham to release his hold on Jackie Robinson. The defendant testified that he believed Cockerham was armed or was attempting to arm himself as he ran down the street. Straughter continued to fire his pistol as he chased after Cockerham in order to prevent him from obtaining a weapon or stopping to return fire. The defendant denied that he attempted to run over his wounded victim as he fled the scene.

Straughter was subsequently arrested and charged by bill of information with attempted first degree murder. A twelve member jury returned a verdict of guilty of attempted second degree murder. The defendant argues that the following assigned errors on the part of the trial court mandate reversal of his conviction.

Assignment of Error Number 1

By this assignment, the defendant argues that the trial court erred in permitting the state to amend the bill of information. The bill originally charged Calvin Straughter with a violation of “R.S. 14:27:30 in that he did attempt to commit the murder of Herbert Cockerham.” Immediately prior to trial, the state was allowed to amend the bill to read as follows: [One Calvin Straughter] violated R.S. 14:27:30 in that he did attempt to commit the first degree murder of Herbert Cocker-ham.” The trial court did not err in allowing the amendment. The state added clarifying language but did not amend the bill to charge a different offense. There was no amendment of substance and no prejudice to the defendant.

This assignment lacks merit.

Assignment of Error Number 3

By this assignment the defendant urges that the trial court erred in denying defendant’s challenge for cause of prospective juror Lambert. Ms. Lambert was a security officer at D. H. Holmes for three years and was challenged based on her police related employment. The challenge was denied by the trial court and defense counsel then peremptorily excused Ms. Lambert.

This Court has held that service on a criminal jury by one associated with law enforcement must be closely scrutinized and may justify a challenge for cause, although such association does not automatically disqualify a prospective juror. State v. Lewis, 391 So.2d 1156 (La.1980).

In this case, however, defense counsel exercised only 9 of the 12 peremptory challenges. This Court has held that failure to exhaust peremptory challenges prevents a defendant from raising denial of a requested challenge for cause on appeal. State v. Ralph, 336 So.2d 836 (La.1976); State v. Allen, 380 So.2d 28 (La.1980). As defendant failed to exhaust his peremptory challenges, he cannot complain of the court’s denial of the challenge for cause against Ms. Lambert.

This assignment lacks merit.

Assignments of Error Numbers 2, 4, 5 and 6

By these assignments the defendant argues that the trial court erred in improperly curtailing defendant’s voir dire examination of several prospective jurors. Voir dire examination is an important trial right given to both state and defense to aid them in securing an impartial jury and in uncovering predispositions of prospective jurors which might serve as a basis for causal or preemptory challenge. State v. Monroe, 329 S.2d 193 (La.1975). Parties must be afforded wide latitude in the conduction of voir dire; however, the rulings of the trial judge regarding the scope of voir dire examination will not be disturbed absent a clear showing of abuse of discretion. State v. Clark, 325 So.2d 802 (La.1976).

During the course of voir dire examination, the trial court sustained state objections to defense inquiry into the prospective jurors’ understanding of the law relative to character evidence. A review of the record reveals that the trial court fully explained the pertinent law to all prospective jurors and questioned them as to their ability to apply that law as given. Some questioning by the defense counsel as to jurors’ understanding of the rules of character evidence was allowed. Curtailment of further inquiry into that area did not constitute an abuse of discretion.

Defendant was again restricted in his inquiry into the attitudes of prospective jurors regarding the use of force in self defense and in defense of others. As with the rules on character evidence, the trial court had read the applicable law to the jurors and questioned them on their willingness to apply that law. Extensive questioning was allowed in these areas and defense inquiry was only curtailed when the questions became cumulative or improper. We are unable to say that the trial court abused his discretion in refusing to allow further questioning.

These assignments of error lack merit.

Assignment of Error Number 7

By this assignment, the defendant contends that the trial court erred in its denial of a defense motion to dismiss the entire jury panel based on the systematic exclusion of blacks. The defendant claims in brief that five of the prospective jurors excluded by the state were black, and were excluded for that reason only.

In State v. Washington, 375 So.2d 1162 (La.1979) and State v. Brown, 371 So.2d 751 (La.1979), this Court held that a defendant is not denied equal protection by the state’s use of peremptory challenges against blacks unless there has been systematic exclusion of blacks over a period of time. In so holding, this Court has adhered to the principle of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing that peremptory challenges were used to exclude blacks in a particular case did not establish a violation of equal protection, under the Fourteenth Amendment of the United States Constitution.

“. .. Rather, a showing of systematic exclusion over a period of time is required to present a constitutional issue. The burden is on defendant to establish such a prima facie showing of such exclusion.” State v. Allen, 380 So.2d 28 (La.1980).

In the present case, the defendant introduced no evidence to show that exclusion of blacks by peremptory challenges had occurred over a period of time. Therefore, his motion to dismiss the entire jury panel was properly denied.

Assignment of Error Number 8

In this assignment the defendant argues that the trial court erred in admitting in evidence, over a defense objection, exhibits S-2 through S-5. The exhibits in question are two spent .25 caliber casings, one live casing and one spent pellet. The objection asserts an inadequate showing of chain of custody of the exhibit items.

A review of the record indicates that the items were properly admitted in evidence. All exhibits were positively identified and the chain of custody from the time of seizure until introduction at trial was sufficiently established.

This assignment of error lacks merit.

Assignment of Error Number 10

By this assignment the defendant argues that his conviction of attempted second degree murder is based on inadequate evidence and is contrary to law. The present standard by which the sufficiency of the state’s evidence is determined was set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When a convicted defendant challenges the state’s proof of guilt, the reviewing court must ascertain 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 beyond a reasonable doubt.” Jackson v. Virginia, supra; State v. Morgan, 389 So.2d 364 (La.1980).

In the instant case, the defendant admitted the shooting but claimed that his conduct was justified as self defense. Little or no evidence was presented of provocation by Herbert Cockerham. Testifying for the state, Jackie Robinson and Wanda Neal, both witnesses to the incident, stated that the victim was unarmed at the time of the shooting. Both witnesses testified (and Calvin Straughter admitted) that when the defendant first fired at Cockerham, the victim turned and ran. The defendant followed him down the street, continuing to fire his weapon. Construing this evidence in the light most favorable to the prosecution, a reasonable jury could conclude beyond a reasonable doubt that the defendant was guilty of attempted second degree murder.

Assignment of Error Number 9

By this assignment of error, the defendant contends that the trial court erred in imposing an excessive sentence. As stated above, the defendant was found guilty of attempted second degree murder and sentenced to 35 years’ imprisonment. R.S. 14:27 (30.1) provides a maximum sentence of 50 years at hard labor without benefit of parole, probation or suspension of sentence. Thus, the sentence imposed falls within the statutory limits.

A sentence imposed within statutory limits nevertheless may be reviewed for excessiveness. Adequate review mandates that the trial court state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. State v. Sepulvado, 367 So.2d 762 (La.1979). To this end, C.Cr.P. art. 894.1, entitled “Sentencing Guidelines, generally.” lists several factors which should be considered in imposing sentence. While the trial judge need not articulate every aggravating and mitigating circumstance presented in 894.1, the record must reflect that it adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979).

The trial judge gave the following reasons for the sentence imposed in this case:

“The Court will state for the record that the reason that it imposed the sentence that it did is because the Court believes that the defendant is in need of correctional treatment in a custodial environment that can be provided most effectively by a commitment — by his commitment to an institution; that a lesser sentence would deprecate the seriousness of the defendant’s crime, particularly since the victim in this case was paralyzed from the waist down as a result of shots fired by the defendant in this particular case and under the circumstances of the case which this Court heard during the trial of the case, this Court feels that the particular sentence that it has rendered is warranted.”

These reasons articulated by the trial court satisfy the requirements of art. 894.1. The trial court properly stressed the violent nature of the offense and the severe injuries sustained by the victim in imposing sentence on this defendant. Accordingly, the sentence is affirmed.

AFFIRMED.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . C.Cr.P. art. 894.1.
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if: (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation: (1) The defendant’s criminal conduct neither caused nor threatened serious harm; (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm; (3) The defendant acted under strong provocation; (4) There was substantial ground tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; (5) The victim of the defendant’s criminal conduct induced or facilitated its commission; (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained; (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime; (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur; (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime; (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The Court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”