author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Cessen J. JAMES, Defendant-Appellant.
    No. K84-748.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    James D. Davis, Alexandria, for defendant-appellant.
    Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.

      Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Cessen J. James, defendant, was charged by bill of information with armed robbery, in violation of LSA-R.S. 14:64. He was later identified in a one-man lineup by three persons who witnessed the crime. Defendant moved to suppress the evidence of the identification contending it was unduly suggestive and unconstitutional. The trial court denied the motion. We granted defendant’s stay for review of this ruling. We affirm and remand for trial.

FACTS

On December 27, 1983 at approximately 6:35 p.m., the Shipley Donut Shop on Lee Street in Alexandria was robbed. The culprit used a knife to coerce the employees and patrons to comply with his demands. On the same evening at approximately 8:19 p.m., defendant was arrested for shoplifting at Sears, only a few miles from the Shipley Donut Shop. At 8:20 p.m. defendant was placed before each of three ladies who were present at the robbery of Ship-ley’s in a one-on-one lineup. They separately and individually identified the defendant as the one who robbed Shipley’s. Defendant was -the sole person in the lineup behind a two-way mirror where he could not see the persons who identified him.

Defendant moved to suppress the evidence of the lineup identification, alleging its unconstitutionality.

ISSUE

The issue is whether the trial judge properly denied the motion to suppress given the totality of the circumstances surrounding the one-on-one identification.

PRETRIAL LINEUP IDENTIFICATION

The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, the alleged violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Moreover, the central question regarding lineup identifications is whether under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Under this test it becomes our duty to decide whether the identification procedure in this instance posed a substantial likelihood of irreparable mis-identification. We find that the single lineup in this instance was in fact suggestive. However, it may be admissible if the totality of the circumstances demonstrates that the identification was reliable. State v. Nicholas, 397 So.2d 1308 (La.1981). The United States Supreme Court stated in Manson v. Brathwaite, supra:

“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony ...”

The following factors are considered in determining the reliability of the witness:

1) The opportunity of the witness to view the criminal at the time of the crime;
2) The witness’ degree of attention;
3) The accuracy of the witness’ prior description of the criminal;
4) The witness’ level of certainty demonstrated at the confrontation; and,
5) The time between the crime and the confrontation.

These factors are to be weighed against the corrupting effect of the suggestive identification itself. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra, 97 S.Ct. at 2253.

The record indicates that each of the three witnesses positively and independently identified the defendant as “the one.” The deliberations were short, evidencing their positiveness in recognizing the defendant as the robber. The identification confrontation transpired within one hour and forty-five minutes following the crime. We find this time period to be relatively short, leaving no reasonable possibility of memory lapse following such a violent crime. Two of the identifying witnesses were employees of Shipley Donut Shop and victims of the crime. For this reason, we find circumstantially that they had ample opportunity to view the defendant and that their degree of attention was heightened for fear of their lives at knife-point. The record does not contain testimony or evidence of the witnesses’ description of defendant prior to the confrontation. Nevertheless, we find ample evidence in the record, both direct and circumstantial, to negate defendant’s allegations of unreliability and irreparable misidentifieation.

Considering the totality of the circumstances, we find that the trial court’s denial of defendant’s motion to suppress the identification evidence was proper. The case is remanded for further disposition consistent with our views herein.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael SINGLETARY.
    No. CR84-300.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Caliste Beard, Jr., Lafayette, for defendant-appellant.
    J. Nathan Stansbury, Dist. Atty., Michael ■ Harson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

Defendant, Michael Singletary, was charged by indictment with the crime of second degree murder, in violation of La. R.S. 14:30.1. He was found guilty on January 19, 1984 by a 12 person jury. On January 30, 1984, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant has appealed urging two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that he was denied his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1 § 13 and § 16 of the Louisiana Constitution of 1974, in that, the Indigent Defender Board of Lafayette Parish refused his court-appointed attorney’s request for payment for expert services. Defendant contends that he needed the assistance of a psychiatrist, a pathologist and a ballistics expert for the preparation and presentation of his defense. In support of his contention defense counsel attached an affidavit to his appellate brief which states that, in August of 1983, defense counsel met with the administrator of the Indigent Defender Board in Lafayette and requested permission to employ a ballistics expert, a pathologist, and a psychiatrist to testify at defendant’s trial. The affidavit reveals that such request was denied by the Board because of a lack of funds. The record does not reflect that the defendant persevered in his attempt to obtain expert assistance. Specifically, following refusal of his request by the Board, he made no request of the State for such assistance nor did he even make the trial court aware of his previous demand to the Board.

At the outset we observe that the affidavit and its contents cannot be considered by this court on appeal as such affidavit purports to attest to facts outside the record. It is well settled that matters dehors the record cannot be considered on appeal; otherwise the appellate court would be assuming original jurisdiction on appeal. Merchants’ & Farmers’ Bank & Trust Co. v. Hammond Motors Co., Inc., 161 La. 288, 108 So. 485 (1926); Wilson v. Wilson, 219 La. 205, 52 So.2d 716 (1951); Dark v. Brinkman, 136 So.2d 463 (La.App. 3rd Cir.1962).

We are aware of the settled principle that a defendant is entitled to state funding in obtaining evidence crucial to his defense upon a showing of indigency. However, in the instant case, the record does not reflect that defendant requested any assistance from the State or the trial court for funds for the purpose of securing evidence allegedly crucial to his defense, nor does the record demonstrate that defendant established, at the time of trial, a colorable need for the assistance of experts in the formulation of his defense.

The burden is on defendant to show that he is unable to obtain evidence crucial to his defense. State v. Monroe, 397 So.2d 1258 (La.1981), writ denied _ U.S. _, 103 S.Ct. 3571, 77 L.Ed.2d 1411 (1983). It was thus defendant’s burden to request the needed funds' from the trial court. It is well settled that, in order to preserve an issue for appellate review, a party must first direct his request or complaint to the trial court by motion or exception. State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983). There is no duty placed upon a trial court to make inquiry as to whether a defendant is able to obtain necessary financial assistance. There was no refusal by the trial court to provide the funds since defendant never requested any funds from it. Under the circumstances presented, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court erred in allowing the State to impeach his character when he had not placed his character at issue.

La.R.S. 15:481 provides that:
“The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.”

When a defendant chooses to place his character at issue by introducing evidence of his good character, the State is permitted to rebut such evidence either by calling witnesses to testify to the bad character of the defendant, or by impeaching the defense witnesses’ ability to testify to the defendant’s character. State v. Bagley, 378 So.2d 1356 (La.1979). In the present case, the defendant did place his character at issue, thus enabling the State to produce rebuttal evidence concerning the defendant’s bad character.

Upon examining the record, we find that defendant did initially place his character at issue. Counsel for defendant cross-examined defendant’s girlfriend and his roommate, inquiring about defendant’s temper. When defendant took the stand, defense counsel specifically questioned him about his prior criminal record. Defendant admitted that he had been convicted once in Florida for being “overly intoxicated”. A defense witness, Mr. Wyllie Shirey, under direct examination was asked: “And in all your life, have you ever known him (the defendant) to have a reputation for any violence whatsoever personally?” Mr. Shi-rey answered, “No.” On cross-examination the State questioned defendant as follows:

“Q. Isn’t — isn’t it correct that you tend to get somewhat belligerent when you’re drinking?
A. What do you mean by that?
Q. Belligerent, uh, combative, willing to fight, wanting to fight?
A. No, I don’t like to fight.
Q. Isn’t it a fact that you get very angry at anybody who tries to step in and who doesn’t defend or who tries to oppose you, particularly when you’ve been drinking?
A. No, Sir.”

Defendant complains that these questions by the State were in violation of La. R.S. 15:481 since he did not place his character at issue. We find the record clearly shows that defendant placed his character at issue first, therefore, the State’s introduction of rebuttal testimony was proper.

Notwithstanding this finding, since defendant failed to object to the State’s rebuttal testimony, he is precluded from doing so now. La.C.Cr.P. Art. 841. This assignment of error lacks merit.

DECREE

For the above and foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Alfred HENRY, Jr., Defendant-Appellant.
    No. CR84-332.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied March 8, 1985.

      Mark A. Delphin, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Gemine Mailhes, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before FORET and CUTRER, JJ., and CULPEPPER, J. Pro Tern.
   CULPEPPER, Judge.

The defendant, Alfred Henry, Jr., was charged with distribution of marijuana, and after a trial by jury was found guilty of attempted distribution of marijuana. The defendant was given a suspended sentence of 18 months at hard labor and was placed on supervised probation for a period of two years subject to special conditions. Defendant argues on appeal that the trial court erred in failing to grant a mistrial following certain statements by a prosecution witness, and that the evidence presented is insufficient to support the conviction. We affirm.

FACTS

The State’s principal witness was Deputy John Patrick Arceneaux, an undercover agent working for the Calcasieu Parish Sheriff’s Department. Deputy Arceneaux testified that on June 10, 1983, he went to the defendant’s home for the purpose of purchasing a quarter pound of marijuana. The marijuana was delivered to the defendant by a person identified as John Guillory, and the defendant sold Deputy Arceneaux a bag purporting to be a quarter pound for $300. The defendant admits that there were individuals smoking marijuana at his home on the night in question, but he denies having sold any marijuana to Deputy Arceneaux.

Deputy Charles Palombo, who was working with Deputy Arceneaux at this time, testified that he searched Deputy Arcen-eaux and his automobile prior to the drug buy, and he possessed no drugs. After the buy, Deputy Arceneaux turned the marijuana over to Deputy Palombo. The marijuana was identified and presented as evidence at trial.

Defense witnesses who were present in defendant’s home on the night in question testified that they observed no sale of marijuana by the defendant to Deputy Arcen-eaux. Defense witnesses testified further that Deputy Arceneaux smoked marijuana with them at defendant’s home, an assertion denied by Deputy Arceneaux.

MOTION FOR MISTRIAL

Defendant argues that the trial court erred in failing to grant a mistrial following remarks made by Deputy Arceneaux during the State’s rebuttal. The colloquy between the assistant district attorney and Deputy Arceneaux out of which this issue arose appears in the transcript as follows:

“Q. Mr. Arneneaux (sic), this simulated smoking with Mr. Capdeville, where did it occur?
A. In the driveway of my home.
Q. And why was he there?
A. He told me that he had information I was a narcotics agent, and that Alfred Henry said ...
MR. CARTER: Your Honor ...
A. ... he would kill me before going to jail.
MR. CARTER: ... I object.”

The trial judge sustained the defendant’s objection to the testimony on the basis that it was hearsay. Defendant’s motion for mistrial, made out of the hearing of the jury, was denied, and the jury was instructed to disregard the last statement made by Deputy Arceneaux. Defendant argues on appeal that the comment by Deputy Arcen-eaux constitutes inadmissible evidence of prior crimes or acts of misconduct which should entitle him to a mistrial.

We note first that the requirements of LSA-C.Cr.P. art. 770 are not applicable to the comments of Deputy Arceneaux. Article 770 requires a mistrial in the event that a remark referring to another crime committed or alleged to have been committed by the defendant is made within the hearing of the jury by the judge, district attorney or a court official. The Louisiana Supreme Court has held that a policeman is not a court official within the meaning of the article and a mistrial is not required, but that the proper remedy would be an admonition to the jury. State v. Hayes, 414 So.2d 717 (La.1982). When a remark regarding prior crimes is made by someone other than a judge, district attorney or court official, an admonition is required under LSA-C.Cr.P. art. 771; however, in order to trigger the need for such an admonition the remark must be an unambiguous reference to crimes alleged to have been committed by the defendant. State v. Hayes, supra. The remark by Deputy Arceneaux regarding defendant’s hostility toward him does not fit that requirement.

Despite defense argument to the contrary, it does not appear that Deputy Arceneaux’s comment was responsive to the prosecuting attorney’s question, nor was it solicited. The questioning leading to the objectionable comment was designed to rebut defendant’s evidence that Deputy Ar-ceneaux used drugs. The trial judge acted properly in admonishing the jury to disregard the remark and in sustaining defendant’s objection to the evidence on the basis of hearsay. The comment in question was not so prejudicial as to violate defendant’s right to a fair trial.

SUFFICIENCY OF THE EVIDENCE

By this assignment, defendant argues that there was insufficient evidence to support the conviction. It is well settled that a claim of insufficient evidence is judged by considering 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 proved beyond a reasonable doubt. In the case before us it is clear that the trier of fact determined that the State’s witnesses, particularly Deputy Arceneaux, were more credible than those presented by the defense. The question of credibility is within the sound discretion of the trier of fact, and the determinations in that regard will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981).

Deputy Palombo testified that Deputy Arceneaux was searched before the buy was to take place and that he had no drugs on his person or in his vehicle. Deputy Arceneaux testified that he purchased what appeared to be marijuana from the defendant at the defendant’s home. Subsequent analysis of the substance proved it to be marijuana. Deputy Palombo testified further that Deputy Arceneaux handed him the marijuana upon his return from defendant’s residence. At that time Deputy Pa-lombo again searched Deputy Arceneaux and his vehicle and found nothing.

In viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. There is no merit to this assignment of error.

For the above reasons, defendant’s conviction is affirmed.

AFFIRMED.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Robley A. BROUSSARD, Appellant.
    No. CR 84-365.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Paul J. De Mahy, St. Martinville, for appellant.
    J. Phil Haney, Asst. Dist. Atty., New Iberia, for appellee.
    Before FORET, CUTRER and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

The defendant, Robley Broussard, was charged by bill of information with the crime of distribution of a controlled dangerous substance, amphetamine, in violation of LSA-R.S. 40:967(A). On September 27, 1983, a jury of twelve found the defendant guilty of attempted possession of amphetamine in violation of LSA-R.S. 14:27 and 40:967(C). On January 20, 1984, the defendant was sentenced to serve two years at hard labor and to pay a fine of $2,000, or serve six months in the parish jail.

Defendant appeals, urging the following three assignments of error:

(1) The trial court erred in denying Rob-ley Broussard’s motion for a mistrial which was based on the prosecutor’s arguing of other crimes.
(2) The trial court erred by failing to give an admonition to the jury regarding the prosecutor’s argument of other crimes.
(3) The trial court erred by imposing a maximum sentence which was constitutionally excessive.

On April 18, 1982, Louisiana State Police Sergeant Ronald Theriot, received a phone call from a confidential informant, who told him that the defendant had approached him about selling some cocaine to him. Sgt. Theriot made arrangements to accompany the informant to the Wal-Mart parking lot in Breaux Bridge to meet the defendant and purchase the drugs. Sgt. Theriot and the informant met the defendant at the designated meeting place and negotiated the sale of two grams of what was later discovered to be amphetamines, for $90 per gram. Sgt. Theriot paid the defendant by check at the conclusion of the negotiations. The defendant was subsequently arrested and charged with distribution' of amphetamines.

ASSIGNMENTS OF ERRORS NO. 1 AND 2

Defendant contends the trial court erred in denying his motion for a mistrial. More particularly, defendant contends the prosecutor made mention of other crimes in argument which mandates a mistrial under Article 770 of the Code of Criminal Procedure. Alternatively, defendant argues that the trial judge should have given an admonition to the jury.

LSA-C.Cr.P. Article 770 provides:
“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.” (Emphasis added.)

The record reflects that during closing arguments the prosecutor stated:

“... or that the drug dealer, this defendant who makes a living dealing drugs,

At that point, the defense attorney moved for a mistrial urging that this was reference to other crimes. The trial judge denied defense counsel’s motion but sustained the objection.

At the outset, it should be noted that the State presented evidence, without objection, that after the drug purchase took place, the defendant stated that if Sergeant Theriot wanted more drugs, he could get it for him. The State argues that from this unobjected-to testimony, the defendant’s claim, that he could secure more drugs, strongly suggests that defendant was in the business of selling drugs. Therefore, the State merely summed up in closing argument what the evidence they presented inferred. Hence, the State contends that the reference made to drug dealing in closing argument was appropriate.

“Before a reviewing court will overturn a verdict on the basis of an improper rebuttal argument, it must be convinced that the challenged remark influenced the jury and contributed to the verdict. See State v. Vosloh, 387 So.2d 1174 (La.1980).” See also State v. Howard, 449 So.2d 69 (La.App. 4 Cir.1984).

We find that the comment made by the District Attorney was an isolated one, objected to immediately by the defendant’s counsel and .dealt with by the trial judge. The trial judge did in fact admonish each counsel and cautioned them, in the presence of the jury, to keep their arguments within the framework of the evidence. We do not feel that the remark was by its nature a direct or indirect referral to other crimes, which would warrant a mistrial under LSA-C.Cr.P. Art. 770. Further, we are not convinced that the remark influenced the jury and contributed to the verdict, by virtue of the fact that the jury returned a verdict of guilty of the lesser offense. We also find that the trial court’s admonition to the District Attorney and caution to both counsel, while in the jury’s presence, was sufficient admonition for a single isolated remark. Therefore, assignments of error numbers 1 and 2 do not constitute reversible error.

ASSIGNMENT OF ERROR NO. 3

The defendant assigns as error the imposition of a sentence of two years at hard labor and $2,000 fine or six months in parish jail as excessive.

The defendant, as noted by the trial court in its reasons for sentencing, had been convicted of three DWI offenses, the third offense being a felony. The defendant had his prior probation revoked and, due to his third DWI conviction, would not be eligible for a suspended sentence. The trial court felt that the defendant was in need of correctional treatment or the custodial environment provided by a correctional institution, and that to impose a lessor sentence would deprecate the seriousness of his crime.

“It is well settled that the trial judge is given wide discretion in the imposition of sentences and the sentence imposed by him should not be set aside in the absence of abuse of that discretion. State v. Jones, 381 So.2d 416 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979)...”. Also, State v. Bell, 438 So.2d 636 (La.App. 2 Cir.1983).

While the sentence imposed may seem severe, the record reflects that our learned brother below adequately considered the sentencing guidelines in LSA-C.Cr.P. Art. 894.1 in particularizing the sentence to the defendant.

We do not find that the trial court abused its discretion in imposing the sentence complained of. Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Raymond GUIDRY, Appellant.
    No. CR84-380.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Harold Savoie, Lafayette, for appellant.
    J. Nathan Stansbury, Dist. Atty., Donald Landry, Asst. Dist. Atty., Lafayette, for appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Defendant, Raymond Guidry, was indicted by a Lafayette Parish Grand Jury for the crime of aggravated rape in violation of LSA-R.S. 14:42. He was tried before a jury of twelve persons and found guilty as charged. The trial judge sentenced him to life imprisonment.

Defendant appeals his conviction and raises two assignments of error:

(1) The evidence presented at trial was insufficient for a conviction of aggravated rape, and;
(2) The trial court erred in permitting leading questions to be asked by the State of its witnesses.

FACTS

In the early morning hours of Saturday, April 14, 1981, the victim, who was out at a Lafayette night spot, was preparing to go home. She had called a cab but, growing tired of waiting for it to arrive, she asked a female friend for a ride home. This friend and her friend’s boyfriend were preparing to leave with the defendant, Raymond Gui-dry. The friend asked the defendant if he would give the victim a ride home and he agreed.

After dropping off the friend and her companion, the defendant proceeded toward the home of the victim. The defendant, however, drove past the road which went to the victim’s home. When the victim protested and requested that the defendant bring her home, the defendant began driving at a high rate of speed. The victim continued to request that the defendant bring her home, but he ignored these requests. The defendant turned off the road, crossed some railroad tracks, and parked his van in an isolated area. Defendant then demanded that the victim get out of the van so that he could have sex with her. When she refused, defendant threatened to kill her and began pulling her out of the van. In the process, defendant broke the victim’s ankle. Defendant continued to threaten to kill the victim and told her that he had a gun. Defendant had sexual intercourse with the victim all the while continuing to threaten to kill her. After defendant left, the victim crawled to the highway where a passing motorist assisted her.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant claims that the evidence was insufficient for a conviction of aggravated rape. In reviewing sufficiency of the evidence, an appellate court must determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact would have found that every essential element of the crime was proved beyond a reasonable doubt. Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The pertinent part of LSA-R.S. 14:41 provides that:

“Rape is an act of ... vaginal sexual intercourse with a ... female person who is not the spouse of the offender, committed without the person’s lawful consent.”

Viewing the evidence in a light most favorable to the prosecution, we find there is no difficulty in concluding that defendant was guilty of rape. The victim was not his spouse, and he had vaginal intercourse with her against her will. The victim testified to the rape, and laboratory tests were positive for spermatozoan. Although a physician testifying for the State said he could not say for certain from his examination if the victim was raped, such testimony did not contradict that of the victim.

The crime of aggravated rape is defined, in pertinent part, as:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or ...”

The State’s evidence showed that the victim was threatened with great and immediate bodily harm, accompanied by the apparent power of execution. The victim testified that the defendant repeatedly threatened her life while leading her to believe that he was armed. The evidence also demonstrated that the victim resisted to her utmost, but that her resistence was overcome by force. Uncontested evidence showed that the defendant had broken the victim’s ankle while she was struggling with him. The evidence was sufficient for a rational trier of fact to have found that defendant had committed an aggravated rape.

[2] In his brief, defendant argues that the evidence was insufficient to prove that it was him, rather than someone else, who had perpetrated the crime. Under the standard of Jackson v. Virginia, supra, the State is required to negate any reasonable possibility of misidentification. We note that several factors are important in determining the reliability of an identification. They are:

“(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and confrontation. Neil v. Biggens, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).”

With regard to these indicia of reliability, the evidence shows that the victim had a good opportunity to view the criminal. During the time she was riding with him, she had ample opportunity to see him. Due to the nature of the crime, the victim’s degree of attention must have been great at the time of its perpetration. Finally, the victim showed no hesitancy in identifying defendant. In conclusion, we feel that the evidence was sufficient to establish the reliability of the victim’s identification.

In his brief, defendant attacks the victim’s in-court identification of defendant because defendant was the only black person seated at the table of defense counsel. This in-court identification was admitted into evidence without objection by defendant’s counsel. In the absence of a contemporaneous objection, any error related to the admission .of evidence is not reviewable on appeal. LSA-C.Cr.P. Art. 841; State v. Wright, 410 So.2d 1092 (La.1982).

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant argues that the trial court erred in permitting leading questions to be asked by the State of its witnesses. The record, however, fails to show any contemporaneous objection to the questions complained of. Absent a contemporaneous objection, any error related to its admission is not reviewable on appeal. LSA-C.Cr.P. Art. 841; State v. Wright, supra.

In his brief, defendant also complains that certain testimony elicited at trial was hearsay. This complaint of defendant’s, however, was not contained in his assignments of error. Our scope of review is limited to those errors designated in the assignments of error and those discoverable by mere inspection of the pleadings. LSA-C.Cr.P. Art. 920. Accordingly, defendant's objection that certain testimony was hearsay is not properly before this Court and not subject to review. State v. Spell, 399 So.2d 551 (La.1981).

DECREE

For the foregoing reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.


author: CULPEPPER, Judge Pro Tempore.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Herbert J. GUILLORY, Defendant-Appellant.
    No. CR84-424.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Mark Delphin, Frank Granger, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty.,' F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before FORET and CUTRER, JJ., and CULPEPPER, Judge Pro Tempore.
   CULPEPPER, Judge Pro Tempore.

This is an appeal from convictions of theft in violation of LSA-R.S. 14:67 and false imprisonment, offender armed with a dangerous weapon in violation of LSA-R.S. 14:46.1.

Deputy John Patrick Arceneaux was employed as an undercover narcotics agent by the Calcasieu Parish Sheriff’s Office. On July 5, 1983, he had one or two telephone conversations with defendant, Herbert Guillory, arrived at defendant’s home at approximately 10:00 p.m. for the purpose of attempting to purchase drugs, and denied accusations made by defendant and Gerald Comeaux that he was an undercover narcotics agent. When the defendant left the room briefly, Arceneaux ran out of the house. Comeaux, however, tackled him in the front yard. Defendant emerged from the house and removed the gun which Deputy Arceneaux kept under his belt. The three men then entered the house. Deputy Arceneaux testified that Guillory forced him inside at gunpoint. Shortly thereafter, several other persons, including Van Ned, Miles Capdeville, Alfred Henry, Jr., and Emmett Baker, arrived at the defendant’s house. Arceneaux testified that while the defendant pointed the gun at him, the others struck him. The defendant did stop the beating and allowed Arceneaux to leave, but kept the gun. Deputy Arcen-eaux left, returned to the sheriffs office, and was taken to the hospital for treatment of his injuries.

The defendant was charged with aggravated battery, theft, and false imprisonment, offender armed with a dangerous weapon. A jury of six found him guilty of theft of property of $310 in value and guilty of false imprisonment, offender armed with a dangerous weapon. On February 3,1984, the date set for sentencing, the defendant filed a motion to continue sentencing. The trial court denied the motion and sentenced defendant to 18 months imprisonment in the custody of the Department of Corrections on each of the two charges, to run concurrently.

The first assignment of error is that the trial court erred in denying defendant’s motion to continue sentencing.

On appeal, defendant relies on four assignments of error for reversal of his convictions and sentence.

Article 707 of the Louisiana Code of Criminal Procedure reads, in part, as follows:

“A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.”

Defendant’s motion, filed on the date of sentencing, was not in proper form. It was not verified by affidavit and did not specifically allege the grounds on which it was based.

Absent a clear showing of abuse of discretion, the denial of a continuance by the trial judge will not be disturbed. State v. Long, 408 So.2d 1221 (La.1982). There was no abuse of discretion by the trial judge.

The second assignment of error is that the trial court erred when it did not allow the defendant to impeach the character of the State’s witness, Deputy Arceneaux.

The question to which the prosecution objected was, “Now, have you ever been involved in the sale or transfer of narcotics?” The prosecutor objected to the relevancy of this particular question. The objection was apparently sustained after a bench conference. Defendant argues that he was precluded from further questioning Deputy Arceneaux as to the variance in his testimony and his statements on the police report. We disagree. The objection was only to the particular question last asked. The record does not indicate that defense counsel was precluded from impeaching the witness. He was simply not allowed to ask the question quoted above. The defendant argues that he was trying to impeach the witness by his prior inconsistent statements. He did not lay a foundation as required by Article 493 of the Louisiana Code of Criminal Procedure in order to impeach by prior inconsistent statements. Further, there is no showing of any inconsistent statements.

The defense counsel argues that he wanted to introduce evidence bearing on the witness’s ability to perceive, and to show interest or bias on the part of the witness. We fail to see how the question objected to relates to the witness’s ability to perceive. An answer to the question would not show any impairment of the senses at the time of the crimes. We also fail to see how an answer would show that the witness had any bias or prejudice in the case..

The third assignment of error is that the trial court erred when it did not grant a mistrial during the district attorney’s rebuttal argument. In rebuttal, the assistant district attorney made the following remarks:

“MR. FREY: _ If you’re going to put yourself in somebody’s place, put yourself in Patrick Arceneaux’s place. He risked his life. He goes undercover, and risks his family. He tried to do something about the drug situation....
MR. GRAY: Your Honor, I’m going to object. That’s an improper rebuttal.
THE COURT: Approach the bench, gentlemen, please, sir.
(Bench Conference.)
MR. FREY: I’ll continue. He risks his life, and risks his family, by trying to do something about the drug problem in his • parish. It’s not easy.”

The defendant argues that these remarks were improper and that they were designed to divert the jury’s attention from the guilt or innocence of the defendant and focus it on the necessity for rendering a verdict against the defendant and against crime in general.

Article 774 of the Louisiana Code of Criminal Procedure reads:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

A prosecutor should refrain from argument which tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused. State v. Messer, 408 So.2d 1354 (La.1982). The prosecutor’s remarks could be construed as an attempt to divert the jury’s attention from the guilt or innocence of the defendant and focus that attention on the drug problem in the parish and the efforts of one of the State’s witnesses to do something about it.

However, for the verdict to be overturned on the basis of improper argument, this court must be firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Messer, supra. We are not convinced that the remarks contributed to the verdict. The defendant was acquitted of one of the three crimes he was charged with. There was substantial evidence of defendant’s guilt of the two other crimes he was charged with. We will not reverse on the' basis of the improper argument.

The fourth and final assignment of error is that the verdict was contrary to the law and evidence. The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, would have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Williams, 423 So.2d 1048 (La.1982). Accepting the facts in the light most favorable to the prosecution, the jury would find this defendant'guilty of theft and false imprisonment, offender armed with a dangerous weapon, beyond a reasonable doubt. The conviction is based on the direct testimony of Deputy Arceneaux, and other evidence. Other witnesses contradicted Arceneaux. However, when there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981). The jury’s decision to believe Deputy Arceneaux was not clearly contrary to the evidence.

This assignment of error is without merit.

The convictions and sentences of defendant are affirmed.

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael R. FREEMAN, Defendant-Appellant.
    No. CR84-472.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied March 8, 1985.

      Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    Morgan J. Goudeau, III, David Miller, Opelousas, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Convicted by a jury of aggravated rape, LSA-R.S. 14:42, defendant, Michael R. Freeman, was sentenced to life imprisonment at hard labor without the benefit of parole, and he appeals the conviction on the basis of four assignments of error, contending (1) he was denied his right to arraignment, (2) co-counsel was appointed on the day of trial, too late to prepare, (3) the trial jury was selected two weeks before trial, and (4) there was an insufficiency of evidence to support a conviction. Finding no merit to any assignment of error, we affirm the conviction.

FACTS

On June 18, 1982, the victim, Susan K. Backmeier, was living with her boyfriend, Robert Bates, at their residence on Highway 104, just outside of the city of Opelou-sas. Early that morning, after Miss Back-meier’s boyfriend had left for work, she heard a knock on the door. She answered the door, still dressed in her robe and pajamas. There stood the defendant, who told Miss Backmeier that a friend of theirs named Steve was in jail, and they needed to go bail him out. Miss Backmeier went to the bedroom to change. She shut the bedroom door behind her.

After she was fully dressed, wearing a terry cloth top and blue jeans, Miss Back-meier opened the door of the bedroom. The defendant, then naked, walked in, forced her onto the bed, and ripped her clothes off, tearing her leather belt in two at the buckle.

He then straddled her on the bed, pinning down her arms. He grabbed her by the hair of her head and forced her to have oral sex. Next, he grabbed her by the throat and started to strangle her, telling her that if she did not shut up, it would get worse. The victim stated that she fought with the defendant as best she could. The assault lasted about half an hour.

After the assault, the defendant asked Miss Backmeier where her boyfriend’s gun was, telling her not to worry because he only wanted to kill himself. She escaped and ran to a neighbor’s house. When the police arrived and ordered him out of the house, the defendant repeatedly told the two officers to go ahead and shoot him. The officers finally subdued him and transported him to the sheriff’s office.

ASSIGNMENT OF ERROR NO. 1

The record shows that at his first appearance in court following the indictment defendant was called up for arraignment, but he requested that the arraignment be postponed. It was, and thereafter defendant was never formally arraigned.

The defendant contends that his failure to plead invalidates the entire proceeding. This argument is without merit. La.C. Cr.P. art. 555 states:

“Art. 555. Waivers
“Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”

This article was applied in State v. Sears, 298 So.2d 814 (La.1974), where the Louisiana Supreme Court stated:

“It is true that a defendant has a right to be arraigned. C.Cr.P. 551. However, where a defendant enters upon trial without objecting to the defect, he is deemed to have waived his right under C.Cr.P. Art. 555....
“Moreover, the defendant does not contend nor show that any prejudice resulted from the entering of the plea of not guilty. Cf. State v. Franks, 284 So.2d 584 (La.1973).”

In the present case, the defendant was not formally arraigned and did not plead. The minutes reflect several appearances before trial.

On October 25, 1983, the defendant went to trial without objecting to the absence of an arraignment. As a result, the defendant was considered to have entered a plea of not guilty. La.C.Cr.P. Art. 555. Without a showing of prejudice, any irregularity in the arraignment procedure is waived. State v. Sears, supra, at 817. No prejudice has been shown.

Consequently, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

The defendant contends that the court’s appointment of co-counsel on the date of his trial denied him his federal and state constitutional right to have sufficient time to prepare his defense.

He cites the case of State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945), as authority for the assertion that appointment of co-counsel on the day of trial denies a defendant a reasonable opportunity to prepare a defense. Dorsey does not stand for that proposition. Instead, Dorsey held that it was reversible error to deny the defendant the right to see, read, and copy an alleged written confession on the day before trial. Dorsey is inapplicable to the present case.

The record does not reflect when or why a co-counsel was appointed, or when or why co-counsel was replaced. Assuming the correctness of defendant’s brief that a co-counsel had been appointed by the court, and that he was replaced by another co-counsel on the day of trial, the fact remains that defendant’s lead counsel, Patterson F. Willis, had been on the case for several months and that it was he who actually selected the jury, tried the case, and gave the closing argument. Defendant has demonstrated no prejudice resulting from the mere replacement of co-counsel in the case. Defendant’s lead counsel, Willis, represented him through pretrial procedures and was present with him throughout the entire trial. At all stages the defendant was represented by an attorney who had adequate time to prepare a defense.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that because the jury was selected approximately two weeks before trial, and then sent home to await trial, there arose a potentially prejudicial exposure of the jury to improper influence. However, defendant has not demonstrated any actual resulting prejudice. Therefore, all that we can examine is whether this procedure was somehow illegal.

A jury is required to be sequestered only in capital offenses. La.C.Cr.P. Art. 791. In the instant case, the defendant was charged with aggravated rape, a noncapital offense. As a result, the court was not mandatorily bound to sequester the jury after it was selected.

In the recent case of State v. Gallow, 452 So.2d 1288 (La.App. 3rd Cir.1984), this court stated that in order to properly preserve the court’s decision not to sequester jurors as an assignment of error, the record must reflect that the defendant moved for sequestration or objected to the procedure during voir dire.

Furthermore, even where a defendant does move for sequestration, the trial judge in his discretion may deny such motion both as to prospective jurors or selected jurors. State v. McAllister, 253 La. 382, 218 So.2d 305 (1969).

In the present case, the record reflects that the defendant never moved for sequestration or made any objections during voir dire concerning the selection of the jury at that time. As a result, the defendant has not properly preserved this assignment of error.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendant contends that the State did not show beyond a reasonable doubt that the defendant committed the crime of aggravated rape. Specifically, the defendant contends that the evidence presented by the State was not sufficient to prove sexual intercourse was committed without the victim’s lawful consent, a necessary element of the crime of rape. La.R.S. 14:41.

The standard of review as to the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt proof of each element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The Louisiana Supreme Court has held that the testimony of the victim and the investigating officer in a rape case is sufficient to convince a reasonable factfinder beyond a reasonable doubt of defendant’s guilt. State v. Rives, 407 So.2d 1195 (La.1981). In the present case, there was the testimony of the victim, the investigating officer, a nurse, and a doctor. There was also various scientific evidence contained in a sex crime kit which was examined by the Aeadiana Criminalistics Laboratory.

The victim testified that the defendant rode up to her house on a friend’s motorcycle. At the front door, he told her that their friend Steve was in jail and that they needed to bail him out. She was wearing pajamas and a robe when she first answered the door. After talking to the defendant, she returned to her bedroom and shut the door. After she was fully dressed, wearing a red terry cloth top and blue jeans, she walked out of the bedroom. She came face to face with defendant standing-in the door with no clothes on. Miss Back-meier then testified that the defendant pushed her back into the room, proceeded to force her onto the bed and ripped off her clothes, tearing her leather belt in two at the buckle. He straddled her on the bed, pinned her arms down, and hit her repeatedly, while forcing her to engage in oral sex. The defendant then put his hands on her throat and proceeded to strangle her, telling her that if she did not shut up, he would hurt her worse. She then testified that she fought with him the best she could. She said that the defendant penetrated her sexually and that the whole episode lasted approximately a half hour. Miss Backmeier also stated that the defendant asked her to tell him where the gun was and said "... all I want to do is kill myself.”

William Schumacher, a doctor, testified that he treated Miss Backmeier in the emergency room at Opelousas General Hospital immediately following the rape. Schumacher testified that she was very upset and crying. He had to stop the examination several times because she was so upset. Dr. Schumacher also recalled that Miss Backmeier had a bruise on her right cheek and a hemorrhage below the eye. He took swabbings of her vagina and placed them in a rape kit which was turned over to the sheriff’s department.

Karen Reynolds, a nurse, also testified that on June 18, 1982, she saw Miss Back-meier as a patient. Miss Reynolds testified she was present in the emergency room during the examination by Dr. Schumacher. Miss Reynolds recalled that Miss Backmeier had a bruise on one hip, a bruise on one arm, a linear mark on one side of her face, a hemorrhage in one eye, and what appeared to be a hemorrhage or red spot in the other eye. Miss Reynolds also testified she was present at the collection of the samples.

This testimony from the victim, the doctor who examined her, and the nurse present in the emergency room when she was examined, support the finding, that Miss Backmeier did not consent to have sexual intercourse with the defendant, but was prevented from resisting by force and threats of great and immediate bodily harm.

Pat Woodham, a neighbor who lived up the road from Miss Backmeier, also testified at the trial. Mrs. Woodham said that she was at home with her sons when they heard a noise. One of her sons said, “Momma, it’s Sue”, and then Miss Back-meier ran into their house. Mrs. Woodham testified that Miss Backmeier then told her that one of Bobby’s friends had raped her. Mrs. Woodham said she called the police. She testified that Miss Backmeier was shaking all over, and that the victim said her chest and arms were hurting because the defendant had put his knees on them during the rape. Miss Backmeier also told her that she was sick to her stomach. Mrs. Woodham accompanied Miss Backmeier to the police station.

Benny Ardoin, a detective in the sheriff’s office at St. Landry Parish, testified that he and Deputy Sheriff Calvin Moore responded to a call concerning an alleged rape at the residence of Susan-Backmeier. When they arrived at the residence, they got out of the car and ordered the person inside the house to come out. After no initial response, the defendant eventually came out of the house without a shirt or shoes on. He was wearing only his jeans. The defendant refused to put up his hands and repeatedly told the officers to “just go ahead and shoot me, go ahead and shoot me ...”

The officers subdued the defendant and later transported him to the sheriff’s office. They then returned to the house and picked up the rifle and Miss Backmeier’s clothing. Ardoin testified that they found a belt that had been broken off at the buckle.

Kenneth Ray Cockerharm, a forensic chemist at the Aeadiana Criminalistic Laboratory in New Iberia testified that the laboratory received three items, including a sex crime kit under the name of a suspect in a criminal case, Ray Freeman. This kit contained a vaginal smear slide which contained numerous sperm.

In summary, the evidence presented shows that the defendant engaged in acts of sexual intercourse with Miss Back-meier without her consent. During this assault, Miss Backmeier was prevented from resisting by the use of force as she was pinned down and strangled by the defendant. The defendant also threatened to inflict great bodily harm, grabbing her by the throat and telling her he would hurt her worse if she did not shut up.

Viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of the crime of aggravated rape.

This assignment of error has no merit.

For these reasons, the conviction is affirmed.

AFFIRMED.


author: YELYERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lee Allison BIAS, Defendant-Appellant.
    No. CR84-545.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Charles L. Bull, Jr., Welsh, for defendant-appellant.
    W. Gregory Arnette, Dist. Atty., Jennings, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELYERTON, Judge.

Convicted of obscenity, LSA-R.S. 14:106(A)(1), and sentenced to the maximum three years at hard labor, defendant, Lee Allison Bias, appeals arguing four assignments of error, two pertaining to the conviction and two to the sentence. We affirm the conviction but reverse and set aside the sentence, finding that there was such inadequate compliance with C.Cr.P. art. 894.1 that we are unable to exercise our appellate responsibility to review this sentence for its claimed excessiveness, especially considering that the sentence imposed was manifestly a severe one, being the maximum allowable under the law. We will remand the case for resentencing.

FACTS

On a summer Saturday in 1983 at South-side Park, a community recreation facility in Jennings, Jefferson Davis Parish, at a softball game attended by a number of children and grownups, defendant, wearing short cutoffs, was seen on the top bleacher, exposing himself and playing with himself. At the trial, the state’s only eyewitness, Mrs. Etienne, stated that she saw Bias doing these things. She declared that the sight was offensive to her.

The defendant took the stand and admitted that he was there, admitting his dress and the place where he was seated, but he denied that he exposed himself “that day.” Mrs. Etienne and the defendant were the only witnesses who testified as to the events forming the basis for the charge.

CONVICTION ASSIGNMENTS OF ERROR

Both assignments of error # 1 and # 2 deal with the sufficiency of evidence claim, and we will discuss them, together. By these assignments defendant contends that the evidence at trial was not sufficient to sustain his conviction.

Defendant was found guilty of violating R.S. 14:106(A)(1) of the obscenity statute. That part of the statute reads as follows:

“A. The crime of obscenity is the intentional:
“(1) Exposure of the genitals ... in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.”

The elements of the crime required the State to prove (a) the defendant exposed his genitals in public, and (b) the exposure was done either with (1) the intent of arousing sexual desire or (2) it appealed to the prurient interest or (3) it was patently offensive. The trial court made express findings that the exposure was- done in public and that it was patently offensive, thus finding that the State had borne its burden of proof beyond a reasonable doubt of the elements of the offense.

The defendant argues that the evidence was insufficient to prove either element.

Since there were but two witnesses, the defendant and his accuser, each testifying oppositely, the trial judge had to make a credibility determination, and he decided that Mrs. Etienne was telling the truth. She testified, repeatedly, that defendant exposed his genitals from under his short pants on a bleacher in the park, and that while he was doing this he was grinning and playing with himself.

It is well-settled that the evidence is sufficient to support the conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State Ex Rel. Graffagnino v. King, 436 So.2d 559 (La.1983). The credibilities of the witnesses are to be weighed by the fact-finder, and these determinations are not open to a second-guess beyond the sufficiency evaluation under the Jackson standard of review. See State v. Richardson, 425 So.2d 1228 (La.1983).

On the basis of the direct evidence introduced, the judge could have found that the state proved beyond a reasonable doubt all of the essential elements required. The issue of credibility having been resolved by the court in favor of the state’s witness, assignments # 1 and # 2 lack merit.

SENTENCING ASSIGNMENTS OF ERROR

Defendant asserts that the sentence was excessive and that the trial court did not follow the sentencing guidelines of C.Cr.P. art. 894.1. We are unable to determine on the basis of this record whether the sentence was excessive, but we find that the trial judge failed to follow the sentencing guidelines of article 894.1, and we shall set aside the sentence and remand for resen-tencing in accordance with those guidelines.

The maximum allowable imprisonment for the violation of R.S. 14:106(A)(1) is three years at hard labor, and that was the sentence imposed upon defendant.

Maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class. State v. Telsee, 425 So.2d 1251 (La.1983). Just how egregious or blameworthy defendant was, by any relative standard, the record does not reveal. The record contains no information about the defendant’s background, his record of arrests and convictions, if any, or any other facts that might enlighten the sentencing choice. The record does not even tell us his age. Apparently no presentence investigation was made.

All that we know about this defendant (except for the facts of this case) is contained in the following terse remarks by the trial court at sentencing:

“The court knows Mr. Bias well. Mr. Bias has been in this sort of trouble to the extent that he has been in various public places, namely the Courthouse and the Jeff Davis Parish Library, where he has been a problem maker to some extent. Women, particularly women who work in the Courthouse, have been afraid of him. There have been some instances of his behavior being below the norm, and the Court feels that those reasons are sufficient to order the removal of Mr. Bias from the general public and away from the general public for his protection as well as for the protection of others.”

Article 894.1 requires that the sentencing court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. The above quoted sentencing comments are not a sufficient compliance with the sentencing guidelines to permit us to exercise our responsibility for appellate review of excessiveness. This is especially so considering that defendant was given the maximum sentence allowed by law. In such a ease there is a greater chance that the sentence is excessive than there would have been had the defendant been given a sentence in the lower range of the court’s sentencing discretion.

For these reasons, the conviction is affirmed. The sentence of three years of imprisonment at hard labor in the custody of the Louisiana Department of Corrections is reversed and set aside, and the case is remanded for resentencing in accordance with law.

REVERSED AND REMANDED FOR RESENTENCING.


author: GUIDRY, Judge. DOMENGEAUX, Judge, KNOLL, Judge,

text:
    STATE of Louisiana v. Roger Clayton PRICE.
    No. CR84-662 and CR84-663.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Dissenting Opinion Dec. 13, 1984.

      Steven R. Thomas, Mansfield, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

In separate bills of information defendant, Roger Clayton Price, was charged with the crime of armed robbery, in violation of La.R.S. 14:64, our docket number CR84-662, and with the crime of attempted second degree murder, in violation of La.R.S. 14:27 and La.R.S. 14:30.1, our docket number CR84-663. These matters were consolidated at the trial level. We have chosen this case for our opinion in these cases but render a separate judgment in the consolidated matter of State of Louisiana v. Price, 461 So.2d 508 (La.App. 3rd Cir.1984).

At arraignment, defendant pled not guilty to both charges against him. On February 28, 1984, defendant changed his plea of not guilty to guilty to the armed robbery charge. Defendant also pled guilty to the offense of aggravated burglary (La.R.S. 14:60) in response to the charge of attempted second degree murder. At the hearing in which defendant pled guilty, the following transpired between the trial judge, Mr. Thomas (defense counsel) and Mr. Lawson (assistant district attorney):

“THE COURT: Let me say this, State of Louisiana versus Roger Clayton Price and another, there are two charges, one is Docket Number 32,058, which is a charge of Armed Robbery. The other is 32,059, which is a charge of Attempted Second Degree Murder.
MR. THOMAS: That is correct, Your Honor, and in connection with both charges, with the Armed Robbery charge, Mr. Price wishes to withdraw his former plea of Not Guilty and tender a plea of guilty. In connection with the charge of Attempted Second Degree Murder Mr. Price wishes to withdraw his former plea of Not Guilty and tender a plea of guilty to Aggravated Burglary, and that is acceptable with the State of Louisiana.
MR. LAWSON: That is correct, Your Honor.
THE COURT: Those are acceptable to the State.
MR. LAWSON: Yes, sir, and the State has a statement concerning recommendation and an agreement which we will put in the record after his plea is accepted.”

The defendant was thereafter thoroughly Boykinized. The trial court specifically inquired concerning whether the defendant’s guilty pleas tendered were the result of a plea bargain. We quote from the transcript in connection therewith:

“THE COURT: Alright. Has any plea bargain been reached in this ease?
MR. LÁWSON: Yes, sir, Your Honor, the State has informed and agreed with Mr. Price not to file a habitual offdender (sic) bill on him based on his plea of guilty in this, and that this is the agreement with the State.
THE COURT: Alright. Now, you understand, of course, Mr. Price — do you understand what Mr. Lawson is talking about?
THE DEPENDANT: Yes, sir.
THE COURT: And you understand that that would not have any effect on these two sentences?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that?
THE DEFENDANT: Yes, sir.”

At a subsequent sentencing hearing at which defendant was present and represented by counsel, defendant made a motion to withdraw his guilty pleas. He contended that his understanding of the plea bargain was that he was to serve no longer than twenty-five years for the offenses to which he pled guilty. The trial judge denied his motion finding that neither the court nor the State had made any such promise to the defendant. As aforestated, the record reflects the only plea bargain reached was that defendant would not be sentenced as a multiple offender. Defendant’s attorney admitted that he had suggested to the defendant that twenty-five years would possibly be the maximum sentence imposed, based upon his own prior experience with this kind of case.

Defendant was thereupon sentenced to twelve years at hard labor for the offense of aggravated burglary. He was also sentenced to serve forty years at hard labor, without benefit of parole, probation or suspension of sentence on the armed robbery count, the two sentences to run concurrently-

Defendant has filed only one assignment of error which raises as an issue the exces-siveness of his sentences. We do not consider that issue, as, for the reasons which follow, we determine that defendant’s guilty pleas are invalid and that this matter must be reversed and remanded to the trial court for further proceedings.

In reviewing appeals from pleas of guilty, we must notice jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Crosby, 338 So.2d 584 (La.1976). Our review of the record reveals an error patent which renders defendant’s guilty pleas invalid.

In the present case, defendant was charged in separate bills of information, with the crime of armed robbery and with the crime of attempted second degree murder. He pled not guilty to both charges. As a result of a plea bargain he withdrew his pleas of not guilty and pled guilty to the crimes of armed robbery and aggravated burglary. The record reflects that the information charging the defendant with attempted second degree murder was not amended to charge defendant with the crime of aggravated burglary, nor was a new information charging defendant with that crime filed.

A defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. La.C. Cr.P. Art. 558. The lesser included offense must be of the same generic class and must not require proof of an element which is not found in the major crime charged. Official Revision Comment to La.C.Cr.P. Art. 558; State v. Green, 263 La. 837, 269 So.2d 460 (La.1972). In such instances amendment of the indictment or the filing of a new information charging the lesser included offense is not required.

The crime of aggravated burglary is not responsive to the crime of attempted second degree murder. It is not a lesser offense that is included in the offense charged nor is it in the same generic class. La.C.Cr.P. Art. 487 provides that a defendant may enter a plea of guilty to a crime non-responsive to the original indictment when such plea is acceptable to the State, and, in such case, the district attorney is not required to file a new indictment to charge the crime to which the plea is offered. However, this does not dispense with the requirement that the original information or indictment charging the non-responsive crime should be amended. Since the information charging defendant with attempted second degree murder was not amended to charge defendant with aggravated burglary and no new information was filed, it necessarily follows that the trial judge did not have jurisdiction to accept the defendant's guilty plea to this offense.

In a similar case, State v. Cook, 372 So.2d 1202 (La.1979), our Supreme Court stated as follows:

“Since the crime of simple burglary of an inhabited dwelling requires proof of an essential element, i.e., inhabited dwelling, not found in the crime charged (simple burglary), simple burglary of an inhabited dwelling is not a lesser included offense of simple burglary.
La.Code Crim.P. art. 487, dealing with amendments by the state of defective indictments, provides in pertinent part:
B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to eharge the crime to which the plea is offered, (emphasis added)
The aforesaid provision does not prohibit a defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney. In such a case, the district attorney need only amend the indictment; he is not required to file a new indictment to charge the crime to which the plea is offered.
In the instant case, defendant’s guilty plea to simple burglary of an inhabited dwelling was not a lesser included offense of the crime charged (simple burglary). Moreover, it was a plea of guilty to a crime nonresponsive to the original indictment. The district attorney neither amended the information nor filed a new information. Hence, the trial judge did not have jurisdiction to accept the guilty plea to this offense. Accordingly, the guilty plea is invalid and must be set aside.”

Although the jurisdictional defect present in connection with defendant’s guilty plea to the crime of aggravated burglary is not present in defendant’s plea to the crime of armed robbery, the decision of our Supreme Court in Cook requires that defendant’s guilty plea to the information charging him with the crime of armed robbery be likewise held invalid. In Cook, the Supreme Court stated:

“Since this invalid guilty plea was part of a plea bargain in which defendant also pled guilty to aggravated burglary, we must likewise set aside defendant’s plea to that charge. On remand, the district attorney may elect to amend the information for simple burglary (La.R.S. 14:62) to simple burglary of an inhabited dwelling (La.R.S. 14:62.2). Whether he does or not, defendant has the option of either proceeding to trial on the crimes charged or entering guilty pleas thereto. In the event he decides to plead guilty to the crimes charged, he cannot be sentenced to serve more than three years at hard labor for the crimes of aggravated burglary (La.R.S. 14:60) and simple burglary (La.R.S. 14:62) and three years at hard labor, the first year being without benefit of parole, probation or suspension of sentence, for the crime of simple burglary of an inhabited dwelling3 and the sentences must be made to be'served concurrently. This would be in accordance with the original plea bargain as corrected in connection with the sentence imposed for simple burglary of an inhabited dwelling. To do otherwise would penalize defendant for having successfully exercised his right to seek our review.”

We consider our Supreme Court’s decision in State v. Cook, supra, to be disposi-tive of the issue presented by the facts apparent on the face of the record and binding on this court such that defendant’s convictions and the sentences imposed must be reversed and this case remanded to the trial court. On remand, the district attorney may elect to amend the information for attempted second degree murder to aggravated burglary. Whether he does or not, defendant has the option of either proceeding to trial on the crimes charged or entering guilty pleas thereto. In the event that defendant pleads guilty to the crimes charged, he cannot be sentenced to serve more than forty years at hard labor without benefit of probation, parole or suspension of sentence for the crime of armed robbery nor more than twelve years for the crime of aggravated burglary. The two sentences must be made to be served concurrently. Further, in the event of resen-tencing, the State may not bill the defendant as a habitual offender, in accordance with the plea bargain agreement previously entered into between defendant and the State.

DECREE

For the reasons assigned, defendant’s convictions and sentences imposed are reversed and the case is remanded to the district court for proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.

DOMENGEAUX, J., concurs and assigns reásons.

KNOLL, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

concurring.

Cook, supra, leaves us no alternative but to do what we are doing here. I suggest, however, with all due respect, that it mandates an amendment of the indictment in this situation when statutory or constitutional law does not.

The Louisiana Code of Criminal Procedure Article 487(A) refers to the amendment of defective indictments only — specifically as stated therein — to form, miswrit-ing, misspelling, improper English, use of sign, symbol, figure, etc., or because any similar defect, imperfection, omission or uncertainty exists therein.

The second paragraph of 487(A) refers to amendments of defects of substance — but only in connection with a “trial”. (When a defendant pleads guilty before a trial, his action logically precludes the necessity of a trial.)

Section (B) of that Article makes it clear that none of the defects- enumerated in (A) thereof should be construed so as to prohibit a defendant from entering a guilty plea to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney. It goes on to say that: “... in such a case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.”

Nowhere do I see in that Article, directly or by inference, that the district attorney, in a case such as we have here, needs to amend the indictment so as to allow the guilty plea.

The Supreme Court’s pronouncement in Cook, supra, that 487(B) requires an amendment to the indictment, was made without citing any statutory or constitutional authority. I presume that the High Court premised its holding on Article 1, Section 13 of the 1974 Louisiana Constitution which requires that: “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.”

In the instant case the defendant entered his guilty plea as part of a plea bargain. The record clearly reveals that the defendant was painstakingly advised and forewarned of the charges and accusations, against him and the resulting consequences of his guilty plea to the crime of aggravated burglary. The defendant in this case has been adequately apprised of the accusations against him and thus the constitutional requirements of Article 1, Section 13 have been met. Assuming for the sake of argument that Cook is correct, the High Court’s constitutional concerns have been sufficiently dispensed with during the Boykinization process. In a case such as this the added requirement of amending the indictment amounts to no more than a supertechnicality.

I respectfully suggest that our jurisprudential duty emanating from Cook unnecessarily takes up an inordinate amount of judicial time at all levels of the judiciary.

KNOLL, Judge,

dissenting.

The majority opinion followed the decision by our Supreme Court in State v. Cook, 372 So.2d 1202 (1979). I respectfully disagree with the Cook decision. Although the failure to amend a bill or indictment may, under certain circumstances, constitute error, it does not constitute error in this case, and certainly not reversible error.

Article 487, paragraph B of our Code of Criminal Procedure is clear that a defendant may enter a guilty plea to a crime nonresponsive to the original indictment without the necessity of the State filing a new indictment. The only restriction is that the plea must be acceptable to the district attorney. Article 487(B) provides:

“B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be. required to file a new indictment to charge the crime to which the plea is offered.”

There is no constitutional or statutory requirement that the State amend the indictment before a defendant enters a plea to a nonresponsive offense, and for a very specific reason: a plea to a nonrespon-sive verdict is in the best interest of a defendant; and, the Boykinization of defendant insures that the plea is in accord with the standards of criminal justice.

The defendant, a multiple offender, along with a co-defendant, who is also a multiple offender, committed violent and heinous acts upon an 83 year old man who lived alone. The defendants, after gaining entry into the victim’s home, repeatedly beat the victim with their fists and the butt of the victim’s shotgun. After defendant Price severely cut the victim’s throat with a knife, defendants fled stealing the victim’s shotgun and his automobile. They were later located in Texas. While in flight from law enforcement officers, they demolished the victim’s vehicle. As a result of the injuries inflicted upon the victim by the defendants, his medical expenses were approximately $100,000 and the remainder of his life was tragically changed, both medically and physically.

Defendant Price voluntarily and intelligently withdrew his plea of not guilty to attempted second-degree murder and tendered a plea to the reduced charge of aggravated burglary. Before the trial court entertained defendant’s plea to a nonre-sponsive -offense, it wisely ascertained from the State whether defendant’s plea was acceptable to the State. The State acknowledged that defendant’s plea was acceptable; this was also confirmed by defendant through his counsel of record. After this foundation was laid, the trial court conscientiously and thoroughly Boykinized defendant. The record is clear that defendant had full knowledge that he was tendering a plea to the reduced charge of aggravated burglary, and was further fully advised of the law and penalty for this offense. After receipt of a pre-sentence investigation report, the sentencing court handed down written reasons for sentence, which imposed a sentence defendant fully merited.

A reversal of this conviction based on such a complete and sound record on such a minor technicality is a travesty to the criminal justice system. If failure to amend the bill of indictment is deemed error, which I vigorously disagree with, then it is certainly no more than harmless error.

Reversal based on this type of technicality serves only to encourage violent criminal conduct, while furthering deterioration of the criminal justice system in the eyes of victims and society in general. '

For the foregoing reasons, I respectfully dissent.


text:
    STATE of Louisiana v. Roger Clayton PRICE.
    No. Cr84-663.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

For the reasons set forth in the consolidated matter of State of Louisiana v. Price, 461 So.2d 503 (La.App. 3rd Cir.1984), in which a separate decision is being rendered by us this day, the defendant’s conviction and sentence are reversed and the ease is remanded to the district court for proceedings consistent with the views expressed therein.

REVERSED AND REMANDED.

DOMENGEAUX, J., concurs for the reasons assigned in No. Cr. 84-662.

KNOLL, J., dissents and assigns reasons.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    Clarence MINOR, Jr., et al., Plaintiffs-Appellants, v. Leonard ROBERTSON, et al, Defendants-Appellees.
    No. 83-1080.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writ Denied March 15, 1985.

      Gladney & Ponder, Joseph A. Gladney, Baton Rouge, for plaintiffs-appellants.
    Hannah & Kaufman, David M. Kaufman, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

Alice Alexander Robertson died intestate on March 6, 1970. She was survived by her husband, Charlie Robertson; an adopted daughter, Jeannie Mae Robertson Webb; and an acknowledged illegitimate son, Clarence Minor, Jr.

On March 3, 1971, Jeannie Mae Robertson Webb executed a cash sale in which she sold to her adoptive father, Charlie Robertson, all of her “rights, titles, and interest in and to the succession of her deceased adoptive mother, Alice Alexander Robertson.” The act of sale described the property which made up the estate of Alice Robertson and stated that the sale of the succession was for a consideration of $2,750.00. The act of sale was duly recorded in the conveyance records of Iberia Parish.

Charlie Robertson died testate on April 1, 1979, possessing the assets of Alice Robertson’s estate.

Subsequent to Charlie Robertson’s death, succession proceedings were commenced for both his and Alice Robertson’s estates.

On May 27, 1980, Clarence Minor, Jr., individually and as administrator of the estate of Alice Robertson; and Jeannie Mae Robertson Webb filed suit against the legatees and estate of Charlie Robertson. The petition urged that Minor and Webb be recognized as the heirs of Alice Robertson and that they be placed in judicial possession of the assets of her estate. The plaintiffs claim that Clarence Minor, Jr. is the acknowledged illegitimate son of Alice Robertson and thereby entitled to inherit from her estate. The petition further urged that the cash sale of Alice Robertson’s succession be annuled due to fraud and' error.

The defendants answered the lawsuit and filed an exception of no right and no cause of action to the lawsuit of Clarence Minor, Jr.

The plaintiffs’ lawsuit was then consolidated with the succession proceedings of Alice Robertson and Charlie Robertson.

At trial defendants’ counsel stipulated that Clarence Minor, Jr. was the acknowledged illegitimate child of Alice Robertson. Nevertheless, the district court held that Minor was precluded from inheriting from Alice Robertson’s estate and dismissed his claim. The trial court based its decision on Succession of Clivens, 426 So.2d 585 (La.1982), and Succession of Brown, 388 So.2d 1151 (La.1980).

The district court also ruled that the sale of the succession entered into between Jeannie Mae Robertson Webb and her adoptive father, Charlie Robertson, would not be annuled. The trial judge premised his decision upon the plaintiffs failure to prove any facts constituting fraud or error sufficient to vitiate her consent.

The issues presented on this appeal are: (1) Whether the trial court erred in dismissing the claim of the acknowledged illegitimate, Clarence Minor, Jr., by refusing to allow him to inherit from his mother when other lawful descendants survived. (2) Whether the trial court erred in failing to declare the sale executed by Jeannie Mae Robertson Webb and Charlie Robertson an-nuled for lack of consent.

ISSUE I

Plaintiffs allege that the district court was in error for holding that an acknowledged illegitimate child could not inherit from his natural mother when there are other lawful descendants.

Clarence Minor, Jr. is the acknowledged illegitimate son of Alice Robertson. The district judge ruling from the bench assigned oral reasons for dismissing Mr. Minor’s ease. The judge’s remarks were transcribed into the record and although he cited no Civil Code Articles as authority for his decision we gather that the essence of his ruling was that La.C.C. Art. 918 (repealed 1981) governed Clarence Minor, Jr.’s inheritance rights. La.C.C. Art. 918 excluded acknowledged illegitimate children from participating in the succession of their mother when she was survived by legitimate descendants. The trial judge did, however, state that Succession of Brown, supra, and Succession of Clivens, supra, would be of no avail to Minor as Alice Robertson died in 1970, prior to the effective date of those cases.

Mr. Minor argues on appeal that despite the fact that his mother died in 1970 her succession was not opened until May 27, 1980, and therefore the law in effect at the time of the opening of the succession as interpreted by Succession of Brown, supra, and Succession of Clivens, supra, should govern.

At the time of Alice Robertson’s death in 1970, La.C.C. Arts. 918 and 919 were still in effect. Pertinent to this case is La.C.C. Art. 918 which before its repeal in 1981 stated:

“Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred.
In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined by the rules established in the title: of father and child.”

In 1980 the Louisiana Supreme Court in Succession of Brown, supra, held La.C.C. Art. 919 unconstitutional. That Article is similar to the above quoted Article except that in 918 acknowledged illegitimates are excluded from inheriting from their mother when lawful descendants survive, while Article 919 excludes acknowledged illegiti-mates from participating in the succession of their father when he is survived by legitimate descendants, ascendants, collateral relatives, or a surviving spouse.

Succession of Clivens, supra, determined that the holding of Succession of Brown, supra, would have a limited retroactive effect, to-wit: January 1, 1975, the effective date of the 1974 Constitution.

In 1981 the Louisiana Legislature repealed La.C.C. Arts. 918 and 919.

It is important to note at this juncture that Succession of Brown, supra, and Succession of Clivens, supra, deal only with the unconstitutionality of La.C.C. Art. 919. Therefore, the trial judge and plaintiff are in error for using those cases as a premise for their respective positions, inasmuch as this case involves La.C.C. Art. 918.

La.C.C. Art. 918, although repealed, has never been held unconstitutional. That being the case, Art. 918 would govern factual situations which arose before the repeal.

We are not here required to consider the constitutionality of La.C.C. Art. 918, inasmuch as this Article has already been repealed.

Furthermore, simple logic applied to the facts of this case require us to ignore the issue of the constitutionality of La.C.C. Art. 918.

The essential similarities between La. C.C. Art. 918 and La.C.C. Art. 919 lead us to presume that were the Supreme Court called upon to determine the constitutionality of La.C.C. Art. 918 it would do so by incorporating the same rationale used in Succession of Brown, supra, and Succession of Clivens, supra.

In Succession of Clivens, supra, the Louisiana Supreme Court stated that the arbitrary discrimination against illegitimates is constitutionally prohibited by Article 1, Section 3 of the 1974 Louisiana Constitution. The Supreme Court went on to state that such being the case, the effect of any court decision holding an Article or statute unconstitutional on such grounds could only be furthered by a retroactive application of the decision to the effective date of the 1974 Louisiana Constitution. (January 1, 1975).

In other words, the inheritance rights of illegitimates whose ascendants died prior to January 1, 1975, would continue to be controlled by the Louisiana Civil Code Articles then in effect. The rights of those illegiti-mates whose ascendants died after January 1, 1975, would be governed by the Louisiana Civil Code as limited by the 1974 Louisiana Constitution and the holdings of Brown, supra, and Clivens, supra.

Were we to hold Article 918 unconstitutional using the rationale of Brown, supra, the holding and rationale of Clivens, would require a limited retroactive application of our decision to January 1, 1975. Inasmuch as Alice Robertson died in 1970, five years prior to the effective date of the 1974 Louisiana Constitution, one can readily ascertain that in this situation holding La.C.C. Art. 918 unconstitutional would be futile, as the rationale of Clivens, supra, would require that the inheritance rights of her acknowledged illegitimate descendant be governed by the Louisiana Civil Code Articles in effect in 1970.

We hold that the law in effect at the date of the De Cujus’ death governs the inheritance rights of the heirs. See Succession of Clivens, supra.

As Alice Robertson died in 1970, Article 918 dictates the inheritance rights of her acknowledged illegitimate child. A strict codal interpretation of Civil Code Article 918 precludes the acknowledged illegitimate Clarence Minor, Jr. from inheriting from his natural mother because at the time of her death she had a legitimate child, Jeannie Mae Robertson Webb. We affirm the decision of the district judge.

ISSUE 2

Plaintiffs contend that the trial court erred by refusing to annul the sale of Alice Robertson’s succession entered into between Jeannie Mae Robertson Webb and Charlie Robertson. Mrs. Webb alleges that she did not voluntarily consent to the sale because of an alleged fraud perpetrated upon her by her adoptive father and because of error.

The district court judge ruled that the sale would not be annuled as there was insufficient evidence to prove fraud or error adequate to vitiate her consent.

Jeannie Mae Robertson Webb was adopted by Charlie and Alice Robertson on June 30, 1948. She lived with her adoptive parents from the age of 4 or 5 until she left their home at the age of 18.

Subsequent to Alice Robertson’s death Mrs. Webb approached her adoptive father and inquired as to the whereabouts of her adoption papers. Charlie Robertson declared that he did not know where the adoption papers were and that he had not seen them.

Mrs. Webb claims that because of her father’s declaration and her inability to locate her adoption papers she became apprehensive as to her ability to prove her adoptive status and whether she had in fact been adopted. She argues that her sole motivation in confecting the sale was her fear that she could not prove that she was the adopted daughter of Alice Robertson. She claims that the fear resulted from a. fraud perpetrated upon her by her father by his telling her he did not know where the adoption papers were and that he had not seen them. Plaintiff further avers that her inability to find the adoption papers led to error on her part as to her status and her rights as an heir.

The rights, title, and interest to a succession are a proper subject of a sale. La.C.C. Arts. 2448, 2449, 2450, 2451, 2454, and 2513. A sale is a conventional obligation.

One of the requisites for the validity of a conventional obligation is that the parties consent to the terms of the contract. La. C.C. Art. 1779.

“Error and/or fraud in contracts negatives the idea of free consent. Their existence, when timely presented to a court of justice, frees the victim of any obligation incurred by or through their influence.” La.C.C. Arts. 1819, 1821, 1847. Searcy v. Novo, 188 So. 490 (La.App. 2nd Cir.1939)

Whether a contract should be an-nuled because fraud or error vitiates the consent of one of the parties is a factual question to be decided by the district court.

Absent manifest error, the trial court’s determination of factual issues will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), (rehearing denied 1979).

In the instant case, the district judge determined that there was insufficient evidence of fraud or error to vitiate the consent of Jeannie Mae Robertson Webb and therefore the sale was valid.

Evidence adduced at trial shows that Mrs. Webb was 27 years of age when she entered into the sale. She had a high school education and was able to read and write. Mrs. Webb was a married woman who had lived away from the influence of her family for 10 years at the time of the sale.

We cannot hold that the trial judge committed manifest error when he made the factual determination that the apprehensions created in Mrs. Webb’s mind were not the result of fraud. Mrs. Webb was merely told by her father that he did not know where the adoption papers were nor had he seen them. As the trial judge noted, there is no evidence that the papers were not lost or that Mr. Robertson did know where they were. There is simply no evidence in the record from which we can conclude that Charlie Robertson perpetrated a fraud upon his adopted daughter.

Nor is there any evidence that would lead us to hold that the district judge committed manifest error for making a factual determination that no error was present. The plaintiff claims that because she was in error as to her status and rights her signing the act of sale was in error. She claims to have signed the contract thinking the $2,750.00 she received was a “gift” from her father.

Mrs. Webb was of sufficient age and intellect when she signed the sale contract to realize what her actions involved. The contract is replete with the terms: Cash sale, seller, sales, and purchaser. A simple reading of the sale contract would have put her on notice that she was selling her inheritance rights.

A basic precept of contract law is that a party may not avoid the provisions of a contract he signs but fails to read or have explained to him. Louisiana Savings Association v. Trahan, 415 So.2d 592 (La.App. 3rd Cir.1982).

We hold that the decision of the district judge that there was insufficient evidence of fraud or error to vitiate the consent of Jeannie Mae Robertson Webb was not manifestly erroneous and we therefore affirm his decision.

For the above and foregoing reasons the decision of the district court is hereby affirmed. All costs are assessed to plam-tiffs-appellants.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge,

concurring.

I concur in the result. However, applying the rationale of Succession of Brown, 388 So2d 1151 (La.1980), I would declare La.C.C. Art. 918 (repealed by Act 919 of 1981) unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 1 Section 3 of the Louisiana Constitution of 1974. Additionally, applying the rationale of Succession of Clivens, 426 So2d 585 (La.1982), I would limit the effect of this declaration of unconstitutionality to inheritance rights acquired by illegitimates on and after the effective date of the Louisiana Constitution of 1974, i.e., January 1, 1975.

For these reasons, I respectfully concur.

      . Charlie Robertson's legatees were his legitimate children from a previous marriage.

      . The author disagrees with the Brown case. See concurring opinion, Succession of Layssard, 412 So.2d 135 (La.App. 3rd Cir.1982). See also concurring opinion, Succession of Payne v. Payne, 426 So.2d 1355 (La.App. 3rd Cir.1983).