text:
    STATE of Louisiana v. Henry CARTER.
    No. 83 KA 0455.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Ossie Brown, Dist. Atty. by Bob Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Joel B. Dickinson, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Henry Carter, appeals his conviction for forcible rape in violation of L.S.A.-R.S. 14:42.1. On appeal, he contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal: (1) in view of the testimony as to what happened on this occasion; (2) as there was no proof of one essential element of the crime; and (3) as there was no proof that defendant was not the common-law husband of the alleged victim.

This last assignment of error was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4. The remaining assignments of error will be addressed together because both involve the sufficiency of the evidence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Evidence is sufficient to support a conviction when any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State Ex Rel. Graffagnino v. King, consolidated with State of Louisiana v. Graffagnino, 436 So.2d 559 (La.1983). Further, the role of the fact-finder is to weigh the respective credibilities of the witnesses, and appellate courts will not second-guess the fact-finder’s credibility determinations beyond a sufficiency evaluation under the Jackson standard of review. Graffagnino, supra.

L.S.A.-R.S. 14:42.1 defines forcible rape as:

“... a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

The victim testified that on July 5, 1981, Henry Carter and Murphy LeBlanc walked into her house while she was drying her hair by the fan in the front room. She stated that LeBlanc began to fondle her breasts although she told him to leave her alone. He then grabbed her hands and began unbuttoning her blouse. At this point, Carter pulled his and the victim’s jeans and underclothes down and began having sexual intercourse with her. The victim stated that throughout this ordeal, she was hollering and crying while trying to get up.

LeBlanc testified that after he and Carter walked into the victim’s house, they both began to fondle her breasts. Further, he acknowledged that the victim told them to stop. He asserted that Carter told him to hold the victim’s hands and, when he complied, Carter pulled down his and the victim’s pants, and began having sexual intercourse with her. LeBlanc admitted that he held the victim’s hands during the entire time and that she struggled and repeatedly told them to stop.

Emanual Beals, an 11-year old cousin residing in the same house as the victim, testified that he saw LeBlanc holding the victim’s hands and that Carter was on top of her. Further, he recounted that the victim was making a crying noise and was trying to get away. Emanual stated that he told Carter and LeBlanc to stop and, when Lois Bowie called on the phone, he told her that the victim was being raped.

Similarly, Lois Bowie testified that when she phoned the victim that day, Emanual answered, saying the victim was being raped. While Lois and Dorothy Johnese were running down the street toward the victim’s house, they saw Roosevelt Hampton, Jr. After they told him what was happening, he ran ahead and knocked the door in. Lois stated that when she entered the house behind Hampton, Carter was pulling on his pants.

Dorothy Johnese’s testimony is to the same effect. In addition, she testified that the victim was crying and pulling on her pants.

Roosevelt Hampton, Jr. testified that he saw Carter “into” the victim while LeBlanc was holding her down. He further stated that when he hollered, Carter jumped up and pulled his pants up. According to Hampton, the victim was crying and wrestling with Carter and LeBlanc, trying to get loose.

Contrary to the above testimony, the defendant recounted the events of that day as follows. He stated that the victim phoned and invited LeBlanc and him to come over to her house. According to Carter, Le-Blanc went over first and, when Carter got there, the victim and LeBlanc were coming from the back room. He stated that Le-Blanc was buttoning up his clothes. The victim and LeBlanc then sat down on the couch and LeBlanc began to fondle her breasts. When Carter attempted to touch her breasts, the victim told him to stop and he did. As LeBlanc continued to fondle her breasts, Carter once more began to do the same. He stated that LeBlanc then grabbed the victim’s hands and unbuttoned her shirt and pulled down her pants. Carter testified that, at this point, he put his finger into the victim’s vagina but that there was no penile penetration. He stated that he was standing up with his clothes on when Hampton burst through the door. Carter acknowledged that the victim resisted his actions.

From the record, we find that a rational trier of fact could have concluded that Carter did have sexual intercourse with the victim, and that LeBlanc’s physical restraint of the victim prevented her from successfully resisting the attack. As such, the sexual intercourse is deemed to be without her lawful consent. See In Interest of Thomas, 395 So.2d 912 (La.App. 2nd Cir.), writ denied, 399 So.2d 608 (La.1981). Therefore, defendant’s assignments of error are without merit.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . The indictment charged the defendant with committing the offense of "Forcible'Rape" but cited the incorrect statute. However, the record reflects that throughout the trial and on appeal, the defendant was aware of the relevant statute. Since the error in the citation did not mislead the defendant to his prejudice, we find no reversible error. L.S.A.-C.Cr.P. art. 464.

      . Rape is defined, in pertinent part, by L.S.A.R.S. 14:41 as:
      "... the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Otis MOORE.
    No. 83 KA 0460.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie Brown, Dist. Atty. by Robert Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Keith Nordyke, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Defendant, Otis Moore, was charged with one count of attempted first degree murder, in violation of La.R.S. 14:30 and 14:27. He had engaged in a “shoot-out” with police officers. Defendant plead guilty and was sentenced to serve eight years at hard labor, without benefit of probation, parole or suspension of sentence. In addition, he was sentenced to serve a consecutive sentence of two years at hard labor, again without benefit of probation, parole or suspension of sentence, under La.R.S. 14:95.2. He appealed to this court, urging eight assignments of error.

The facts leading to defendant’s arrest are as follows. Defendant and his girl friend were involved in a domestic dispute on April 7, 1982. The girl friend called the police to her apartment, but defendant managed to evade them at that time. Later the same day she again summoned the police because of defendant’s harrassment. This encounter lead to a high-speed chase which ended when defendant’s car ran into a fence. He emerged from the car firing at the police officers. In spite of the many shots fired, no one was injured and defendant finally ceased firing the gun and surrendered to the officers.

Defendant was initially charged with six counts of first degree murder but in exchange for his guilty plea, all but one count were dropped.

Four of the eight assignments of error deal with the excessiveness of the sentence. Defendant contends the sentence was excessive for these reasons: There were certain mitigating circumstances; no one was injured; there was certain evidence admitted at the sanity hearing; and, only five years incarceration are required by La.Code Crim.P. art. 893.1. We find no merit in any of these arguments.

Although there were certain mitigating circumstances, such as the fact this was defendant’s first conviction, and he had two jobs at the time of the incident, we cannot conclude these circumstances require a lesser sentence. As reflected in the presentencing report, defendant had been charged several times before with possession of marijuana with intent to distribute, simple battery and aggravated assault. In all cases charges had been dropped or “nolle prossed.” The fact no one was injured was, as the trial court noted, somewhat of a “miracle” and does not lessen the severity of the offense. The evidence at the sanity hearing showed defendant was under the influence of drugs on the day of the incident but also showed he knew right from wrong at the time of the shooting. Finally, simply because La.Code Crim.P. art. 893.1 calls for a sentence of not less than five years when the offender has used a firearm, it in no way implies a sentence of more than five years is excessive. The maximum sentence for attempted first degree murder is 50 years. [See La.R.S. 14:27 D(l).] The sentence imposed is certainly at the lower range of the possible sentences and we find it in no way excessive. The determination of excessiveness of a sentence turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Pearson, 425 So.2d 704 (La.1982).

In another assignment of error, defendant contends the court erred in imposing enhanced sentences under La.R.S. 14:95.2 and La.Code Crim.P. art. 893.1 when defendant had not been charged by bill of information or indictment with these offenses. In a related assignment, defendant argues the court erred in not requiring the state to pre-warn him of its intent to invoke the mandatory penalty under these articles.

It has been held the state need not separately charge the defendant with violation of La.R.S. 14:95.2. State v. Roussel, 424 So.2d 226 (La.1982), rehearing denied 1983. We see no reason for the establishment of a different rule under La.Code Crim.P. art. 893.1. The question required to be determined under this article is simply a matter of proof and has no relation to the facts which determine guilt or innocence of the basic crime. Using a firearm, in this instance, is not a separate crime and there is no necessity for a separate charge.

As to defendant’s argument the court should have warned him of the intent to impose the enhanced penalty, we find no merit whatsoever. The court gave defendant an opportunity to withdraw his plea when it became apparent the enhanced punishment was to be applied. Defendant and his counsel considered the matter overnight and the next day defendant expressed his desire to “... stay with my guilty plea.” Defendant cannot argue he was not “prewarned.”

In two other assignments of error the defendant argues the court erred in concluding he had used a firearm when no evidence was introduced establishing this fact. He contends further the court should have held an adversary hearing on whether or not a firearm was used in the commission of the offense charged. A sentencing court, as was done here, may draw from extensive sources of information and the traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Washington, 414 So.2d 313 (La.1982). In a multiple offender proceeding the trial court has the right to take judicial notice of any prior proceeding which was a part of the same case it tried previously. See State v. Martin, 400 So.2d 1063 (La.1981), on rehearing. We apply the same rule to the analagous situation of an enhancement proceeding for the use of a firearm. Here, the trial court had presided over a Boykin examination, in which defendant, when asked to what crime was he pleading guilty, answered, “I discharged a firearm and hit a public official.” This evidence makes it abundantly clear defendant discharged a firearm at the time of the incident.

For the reasons, the sentences imposed by the trial court are affirmed.

AFFIRMED.

      . Sec. 30 reads in pertinent part as follows: “First degree murder is the killing of a human being:
      ******
      "(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties; ...”

      . Sec. 27 reads in pertinent part as follows:
      “A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

      . Art. 893.1 reads as follows:
      “When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole." (Footnotes omitted.)

      . Art. 14:95.2:
      “Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      “The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.”


author: WATKINS, Judge.

text:
    STATE of Louisiana In the Interest of Darren J. NELSON.
    No. 83 KJ 0475.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Gordon W. Matheny, Dist. Atty., Hammond, for plaintiff.
    Richard C. Macaluso, Hammond, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is an appeal from a judgment of the City Court of Hammond adjudicating defendant, Darren Jerome Nelson, a juvenile delinquent for having violated LSA-R.S. 14:69, illegal possession of stolen things of a value more than $100.00 but less than $500.00. Defendant was placed in the custody of the Department of Corrections for a period of two (2) years, the maximum sentence for the offense charged. Defendant appeals his sentence and conviction raising three assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2.

In these assignments, defendant contends that the trial court erred in finding him guilty beyond a reasonable doubt of each and every element of the offense charged and in denying the defense motion for a judgment of acquittal. Defendant has combined his arguments on these assignments and we shall do the same.

The proper standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moore, 432 So.2d 209 (La.1983). When the evidence consists only of circumstantial evidence, it must be determined that any rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence was excluded. State v. Washington, 421 So.2d 887 (La.1982). Defendant was charged with violating R.S. 14:69 which provides, in pertinent part:

“A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
B. * * *
(2) When the value of the stolen things is one hundred dollars or more, but less than five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.”

Only general criminal intent is required as an essential element of proof under R.S. 14:69; a defendant could not be convicted under R.S. 14:69 absent evidence that he intentionally possessed, procured, received, or concealed a thing of value which had been the subject of any robbery or theft, under circumstances which indicated that he knew or had good reason to believe that the thing was the subject of one of those offenses. State v. Davis, 371 So.2d 788 (La.1979). Mere possession of stolen property should not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. State v. Walker, 350 So.2d 176 (La.1977). Where the state offers evidence of the original purchase price of the stolen items, but offers no evidence tending to prove that the items had a value as alleged in the charge against a defendant, a judgment of acquittal is required. State v. Peoples, 383 So.2d 1006 (La.1980).

The record reveals that defendant was charged following a confrontation between defendant and his brother and the owner of a bicycle which had been stolen the previous day. The owner identified several accessory items attached to a bicycle defendant’s brother was riding as having come from the stolen bicycle.

Viewing the record and the evidence in the light most favorable to the prosecution, we find that a rational trier of fact would have failed to conclude beyond a reasonable doubt that the defendant knew or had good reason to believe that the bicycle parts had been stolen. Further, we find that a rational trier of fact could not have concluded that every reasonable hypothesis of innocence had been excluded.

The evidence in this case was purely circumstantial, as no direct evidence was presented at trial. Although R.S. 14:69 requires only a showing of general intent to possess the allegedly stolen items, the state offered no proof of defendant’s intent to possess, procure, receive, or conceal the stolen bicycle parts. The testimony of the owner of the stolen bicycle reveals that defendant was not in possession of the stolen bicycle parts when they were recovered but was instead in the company of his brother who was riding a bicycle to which the parts were attached. The owner further testified that when he confronted the defendant’s brother, the brother told him that he had found the parts in the woods aud at that time turned the parts over to the owner. The accessory parts were not offered into evidence at trial nor were they further identified beyond the testimony of the owner. Nor could we find any evidence in the record that tended to show that either the defendant or his brother knew that the items were stolen or their general intent to continue to possess them. Even if we concede that defendant was in possession of the items, this would not create a presumption that defendant received them with knowledge that they were stolen. State v. Walker, supra.

One of the state’s witnesses, a thirteen year old schoolmate of defendant, testified that he saw defendant and his brother riding a bicycle similar to the one stolen. However, the thirteen year old did not know whether that bicycle belonged to the defendant or his brother. Further, the same witness testified that he saw a red bicycle frame in the woods on the day prior to the day the actual theft was reported and, although the frame was stripped of all accessories, he identified it as the one belonging to the son of the owner, who was also a schoolmate. The bicycle frame was recovered, but was never offered into evidence for identification as the stolen bicycle.

There is no evidence in the record to establish the value of the accessory items allegedly received by defendant knowingly as stolen goods. The trial judge elicited testimony to the effect that the original cost of the bicycle was $194.00, however, there was no testimony as to when the bicycle was purchased. It is entirely possible that the value of the stolen accessory items as named in the state’s petition was under $100.00, thus requiring a lesser sentence than that received by defendant if found guilty.

We find that the state has failed to prove the elements necessary to find defendant guilty of illegal possession of stolen things of a value of not less than $100.00 nor more than $500.00. The trial judge erred when he denied the defendant’s motion for acquittal. Consequently, we reverse defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NO. 3.

Defendant contends that the trial court erred in imposing an excessive sentence. Since we have reversed defendant’s conviction and sentence, a discussion of the ex-cessiveness of the sentence is moot.

CONVICTION AND SENTENCE REVERSED.


author: CARTER, Judge:

text:
    Janice STEAGALL v. Ronnie STEAGALL.
    No. 83 CA 0477.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Clinton Hyatt, Jr., Baton Rouge, for plain tiff-appellant defendant-in-rule Janice Walter Steagall (Mooney).
    Brian L. Williams, Baton Rouge, for defendant-appellee plaintiff-in-rule Ronnie Carl Steagall.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This appeal involves a custody proceeding to change custody.

Ronnie Carl Steagall (appellee) and Janice Walter Steagall Mooney (appellant) were married on July 29, 1967. Two children were born of their marriage, namely: Carol Lynn Steagall (now age 15) and Sheryl Renee Steagall (now age 10). The Stea-galls were legally separated by judgment dated June 30, 1976. By stipulation and consent of the parties, Janice Steagall was granted permanent care, custody and control of both minor children. The parties were finally divorced on October 18, 1977.

Shortly thereafter, Ronnie Steagall married Darla Broussard, who had two sons by a previous marriage. She has custody of the two minor children, both of whom reside with Ronnie and Darla Steagall.

Janice Steagall subsequently remarried also. Janice married Ted Mooney, who has two children from his prior marriage. Neither of the Mooney children reside with Ted and Janice Mooney; however, both Carol and Sheryl Steagall resided with the Mooneys.

In July 1982, appellee filed a Rule for Change of Custody alleging the existence of sexual abuse in the custodial household and that the best interest of the children would best be served by awarding custody of the two minor children, Carol and Sheryl, to him.

By judgment dated March 2, 1983, the trial judge ruled that custody of the two minor children should be changed from the mother to the father, subject to reasonable and liberal visitation rights on the part of the mother outside the presence of Ted Mooney.

Appellant perfected this appeal raising the following issues:

(1) Whether the trial judge abused her discretion in ordering a change in custody;
(2) Whether the trial court erred in restricting appellant’s visitation rights outside the presence of Ted Mooney; and
(3) Whether the trial judge erred in not ordering joint custody of the children to Janice Mooney and Ronnie Steagall.

Change of Custody

LSA-C.C. art. 157 provides in pertinent part:

Art. 157. Custody of children; visitation rights of grandparents
“A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.”

LSA-C.C. art. 146 provides in pertinent part:

Art. 146. Custody of children pending the litigation
“A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court, shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. Such plan may include such considerations as the following:
(a) Domiciliary arrangements for the child or children.
(b) Rights of access and communication between the respective parents and the child or children.
(c) Child support, if appropriate to the economic circumstances of the parents.
(d) Any other matter deemed in the best interest of the child or children.
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent’s sex. The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody.” (Emphasis added)

In child custody matters, including those involving a change of custody, the sole criterion applicable is the best interest of the child. Johnston v. McCullough, 410 So.2d 1105 (La.1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Montelbano v. Montelbano, 415 So.2d 303 (La.App. 2d Cir.1982), writ denied, 420 So.2d 163 (La.1982).

In Bordelon, supra, the Supreme Court stated, at page 1329:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.” (Citations omitted).

The order for change of custody was based on evidence which established that sexual misconduct occurred in appellant’s household. The specific acts of sexual misconduct involved appellant’s older child, Carol, and appellant’s husband, Ted Mooney. Carol testified that on numerous occasions she and her stepfather showered together and that during those showers the stepfather would bathe her. This activity had been occurring since Carol was 13 years old. It was also established that Carol had been the object of other sexual advances by her stepfather.

Appellant contends that the trial court erred when it ordered that custody be changed from Janice Mooney to Ronnie Steagall. Appellant specifically alleges that the trial court failed to consider that the Mooney household had provided a stable environment for the past five years. The Supreme Court in Bordelon, supra, at page 1329, set forth the rule of law with reference to stability of environment, in that:

“... even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child.”

Appellant further alleges that the change of custody was made without a showing that the conduct complained of had any detrimental effects on the children. In support of this contention appellant relies on Nale v. Nale, 409 So.2d 1299 (La. App. 2d Cir.1982). The court in Nale, at page 1301, held that:

“In assessing if a parent’s sexual lifestyle is cause for denying custody, the courts have consistently held the ultimate determination must be whether the behavior was damaging to the child.”

While appellant correctly points out that stability and continuity of the environment should be considered in determining whether a change of custody is warranted, her reliance on the jurisprudence establishing the requirement of a detrimental effect, caused by parent’s sexual lifestyle, is misplaced. The cases cited by appellant involved the sexual relationship of the parent with other persons. In the case sub judice, the sexual misconduct involved the child. Clearly, if the child is the object of the sexual misconduct of the parent, the effects are per se damaging.

The court in Theriot v. Huval, 413 So.2d 337, 338 (La.App. 3rd Cir.1982), stated that:

“A determination of the best interest of the children involves a consideration of the totality of the facts and circumstances of the children and the parents in each individual case.” (Citations omitted)

From the facts presented in this case, we find that the trial judge, in considering all relevant facts, was correct in changing custody from the mother to the father because of the activities of the stepfather.

Restriction on Visitation

The trial judge awarded appellant liberal visitation, but restricted any visits with either of the children to outside the presence of her husband, Ted Mooney.

Appellant contends that the trial court abused her discretion in placing such a restriction on appellant’s visitation. Appellant specifically alleges that the limitation places an undue hardship upon her, is injurious to Carol’s welfare, and should not apply to Sheryl, appellant’s younger daughter because no sexual misconduct occurred with Sheryl.

In custody disputes between parents, the paramount concern, as the trial court correctly observed, is the best interest of the child. Visitation is an adjunctive custodial relationship, the control of which lies within the discretion of the trial court. LSA-C.C. art. 157; Bordelon v. Bordelon, supra; Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir.1978), writ refused, 359 So.2d 197 (La.1978). Much discretion is vested in the trial court in determining the times and the conditions under which a parent may have access to his child, and the decision of the trial judge as to visitation privileges will not be disturbed unless there has been an abuse of discretion. Pate v. Pate, 348 So.2d 1338 (La.App. 3rd Cir.1977).

In the instant case, the record clearly supports the trial court’s finding that the limitation on visitation was warranted.

Joint Custody

Appellant contends that the trial court erred in not making an award of joint custody as provided in LSA-C.C. art. 146.

LSA-C.C. art. 146 provides, in pertinent part:

“C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child unless:
(1) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or
(2) The court finds that joint custody would not be in the best interest of the child.”

From the record it is clear that the trial judge found that joint custody was not in the best interest of the child. We agree. The sexual misconduct of the stepfather toward the minor child caused the trial court to change custody, and it is this same sexual misconduct which provided the basis for finding that joint custody was not in the best interest of the children.

For the above reasons, the judgment of the trial court is affirmed. Costs to be assessed against appellant.

AFFIRMED.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Robert HUDSON.
    No. 83 KA 0515.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie B. Brown, Dist. Atty. by Donald R. Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Robert Hudson, appeals his 10-year sentence at hard labor imposed under the habitual offender statute for his conviction of simple burglary of a Baton Rouge dress shop in violation of LSA-R.S. 14:62. He contends that the sentence is excessive. We find no manifest abuse of the trial court’s discretion in imposing this sentence and, therefore, affirm.

Defendant argues that his sentence for this non-violent crime is excessive because first offenders of certain violent crimes could be sentenced to the same confinement period. Further, defendant lists other violent offenses where the maximum possible enhanced penalties are less than the sentence imposed herein.

It is the prerogative of the legislature to determine the length of sentences imposed for crimes classified as felonies. See State v. Prestridge, 399 So.2d 564 (La.1981). Given the statutory limits of the sentence, the trial court has great discretion in the imposition of sentences therein. Accordingly, the sentence imposed by the trial court will not be set aside in the absence of a manifest abuse of discretion. State v. Spencer, 374 So.2d 1195 (La.1979).

For a simple burglary conviction, the legislature has mandated a maximum term of twelve years. Under the habitual offender statute, the permissible range of sentence for this offense is between a four-year minimum sentence and a twenty-four year maximum sentence. The ten-year sentence actually imposed herein is less than one-half the maximum allowable sentence.

In imposing this length of sentence upon the defendant, the trial court stated several factors as the basis for his decision. The trial judge stated that he found no provocation for defendant’s action and, further, that the defendant had to know that his conduct would cause harm to another. The trial judge noted that the defendant had a history of prior arrests and a prior conviction. It was the trial judge’s opinion that defendant’s attitude reflected that he would be likely to commit another crime. In addition, the trial judge stated that there was nothing in defendant’s records to indicate that he had learned anything from his previous probation sentence. The trial judge also felt that any less of a sentence would deprecate the seriousness of the defendant’s conduct.

Based on the above factors, we find no manifest abuse of discretion on the part of the trial court in imposing a ten-year sentence in this matter. Accordingly, we affirm.

AFFIRMED.

      . The sentencing transcript does not reflect that the sentence was imposed at hard labor, although the court specifically remanded defendant to the custody of the Department of Corrections. However, under L.S.A.-R.S. 15:824(C), only individuals actually sentenced to death or confinement at hard labor can be remanded to the Department of Corrections. Further, the minute entry for March 15, 1983 does specify the sentence at hard labor.

      . Upon petition by the State, the trial court found the defendant to be an habitual offender under L.S.A.-R.S. .15:529.1 et seq. based on a 1977 charge for attempted first degree murder to which the defendant pled guilty.


text:
    STATE of Louisiana v. Marvin Earl ALLEN.
    No. 83 KA 0520.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    William E. Woodward and William G. Carmichael, Asst. Dist. Attys., Clinton, for plaintiff-appellee.
    Jimmie R. Major and Clifton O. Bingham, Jr., Baton Rouge, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant was charged with second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was convicted of manslaughter and sentenced to eighteen years at hard labor. La.R.S. 14:31. Defendant appealed assigning two errors.

We affirm.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant’s first assignment of error is the denial of his motion for a post-verdict judgment of acquittal under La.C. Cr.P. art. 821, based on the State’s failure to disprove his plea of self-defense. When a defendant in a homicide prosecution asserts self-defense the State has the affirmative burden to prove beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated in self-defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983).

Review of this issue is governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Savoy, 418 So.2d 547 (La.1982).

An argument between the defendant and the victim, Mack Terrell, in a local club moved outside where Terrell fired two shots toward the defendant at close range. Terrell put his gun in his back pocket or down by his side, turned away from the defendant and started to walk back inside the club. Defendant crept up behind Terrell and grabbed the gun. When Terrell turned around defendant took a swing at him. Defendant had a knife in his hand. A fight ensued and Terrell was fatally stabbed.

The State’s evidence presents a strong showing that defendant’s action of creeping up behind Terrell was not necessary to prevent loss of life or great bodily harm. The victim may have provoked the defendant, but Terrell had put his gun away and his back was turned when the defendant went after him. Under the circumstances, the force used by the defendant was unwarranted by the alleged provocation. We agree that defendant’s actions were not in self-defense within the meaning of La.R.S. 14:20.

Defendant’s first assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant alleges in his second assignment of error that his sentence of eighteen years was cruel, excessive and unusual punishment in violation of the United States and Louisiana Constitutions. Defendant alleges that the trial judge failed to give any reason for the eighteen-year sentence which was completely disproportionate to the offense. The maximum sentence that could have been imposed under La.R.S. 14:31 was twenty-one years.

State v. Sepulvado, 367 So.2d 762 (La.1979), held that a sentence, although within statutory limits, may still violate a defendant’s constitutional right against excessive punishment. La.Const. Art. 1, § 20.

La.C.Cr.P. art. 894.1 provides the sentencing criteria by which to measure whether a sentence within statutory limits is nevertheless excessive. The article requires the trial judge fully to articulate his reasons for imposing sentence, enabling an appellate court competent review.

The trial judge complied with article 894.1 stating for the record the reasons and factual basis for the sentence imposed. The focus of review is whether the trial judge abused his wide discretion, considering the circumstances of the crime, the character of the defendant and the trial court’s reasons for sentencing. State v. Tompkins, 429 So.2d 1385 (La.1983).

In looking at the factors favoring imprisonment, the trial judge noted that, at the time of the offense, defendant was on probation. He believed that if defendant’s sentence were suspended there would be an undue risk that he would commit other crimes. The defendant’s need for correctional treatment or custodial environment was provided most effectively by defendant’s commitment to an institution. A lesser sentence would deprecate the seriousness of the crime of manslaughter.

The judge found that some mitigating factors existed, including possible provocation by the victim. However, the judge noted that defendant had a history of alcohol and drug abuse which resulted in convictions for possession of a controlled dangerous substance, DWI, disturbing the peace, damage to property and the present conviction for manslaughter. Defendant had shown no positive response to probationary treatment and it was not unlikely he would commit another crime.

Under the circumstances and considering the seriousness of the crime, the trial judge believed that an eighteen-year sentence was appropriate. We do not find an abuse of his large discretion.

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

AFFIRMED.

      . La.R.S. 14:31:
      Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm.
      (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
      (b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.
      Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.

      . C.Cr.P. art. 821:
      A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
      B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
      C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
      D. If a post verdict judgment of acquittal is granted or if a verdict is modified, the state may seek review by invoking the supervisory jurisdiction of or by appealing to the appropriate appellate court.
      E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

      . La.R.S. 14:20:
      A homicide is justifiable:
      (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
      (2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
      (3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.

      . La.Const. Art. 1, § 20:
      No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.

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


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Charles WILLIAMS.
    No. 83 KA 0533.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      William M. Quin, Asst. Dist. Atty., Am-ite, for plaintiff-appellee State of La.
    Joseph E. Anzalone, Jr., Richard Schwartz, Amite, John J. Dolan, New Orleans, for defendant-appellant Charles Williams.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Charles Williams, was tried pursuant to an indictment charging him with the crimes of aggravated rape, in violation of LSA-R.S. 14:42, and armed robbery in violation of LSA-R.S. 14:64. The jury found Williams guilty as charged on both counts. The Court imposed on Williams a life sentence without benefit of probation, parole or suspension for the aggravated rape, and a twenty-five year sentence for the armed robbery, the sentences imposed to run concurrently.

Defendant has appealed the convictions and sentences. Williams argues to this Court six assignments of error.

FACTS

On April 23, 1982, at approximately 12:15 p.m., the victim, a part-time instructor at Southeastern Louisiana University, was robbed and raped at knife-point allegedly by Charles Williams. Immediately after the incident, the victim reported it to the academic dean who was located in a nearby building. The dean called campus security and the victim was given medical attention.

Subsequently, the victim gave the police enough identification information for a picture composite to be constructed of the perpetrator of the criminal acts. Thereafter, the defendant was apprehended on the university campus. A line-up was conducted by the city police the evening of the defendant’s apprehension and the victim picked the accused out of the line-up.

The trial of Williams on both counts was held on December 6-9, 1982. A twelve person jury, of both males and females and of both whites and blacks, found the accused guilty of armed robbery and aggra- • vated rape.

ASSIGNMENT OF ERROR 1

The defense first claims that the trial judge erred in denying defendant’s motion to suppress identification because the lineup procedure was allegedly “contrary to guidelines established by current jurisprudence to protect the rights of the accused.” This objection focuses solely on the absence of counsel at the line-up.

An accused’s Sixth Amendment right to the presence of counsel at corporeal line-up is applicable only in cases in which the line-up was conducted “at or after the initiation of adversary judicial criminal proceedings.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The Kirby Court decided that the due process fairness protections were sufficient safeguards for identification procedures conducted prior to formal charging. Exclusion of the line-up identification is not required where the line-up was conducted according to fair standards of police procedure and there was no bad-faith effort to circumvent the accused’s right to counsel following arrest. State v. Thomas, 406 So.2d 1325 (La.1981).

The record before us on appeal reveals that defendant was initially arrested for resisting a police officer and criminal trespassing. Defendant’s arrest took place about one week following the instant robbery and rape, after defendant was seen in the same building and after he ran from police when they attempted to question him. While running from the officers, defendant was seen to be carrying a knife.

Several hours after the arrest, defendant agreed to participate in a line-up, where the victim identified the defendant as her attacker. At that time defendant had not been indicted or otherwise formally charged with any criminal offense. Prior to the line-up, police attempted to call the public defender’s office in order to have an attorney present at the line-up although the defendant had made no such request; however, the police officers were unsuccessful in making contact with any member of the public defender’s office. There was no bad-faith effort to circumvent the accused’s rights to counsel following his arrest. The police officers testified to the fairness of the line-up.

We find that the line-up was conducted fairly and according to standard police procedures at a point in time prior to defendant’s having been indicted or formally charged with any criminal offense. Therefore, defendant’s Sixth Amendment right to counsel was not violated when the trial judge denied defendant’s Motion to Suppress Identification. State v. Thomas.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR 2

Defendant assigns error to the trial court’s denial of the motion for mistrial. During voir dire, the state objected to the defense’s line of questioning of a prospective juror, Gregory Bowman. In making its objection, the state said:

... He [defendant’s counsel] is trying to get jurors to commit in advance, he is trying to plant in them the fact that he [defendant] was not there. Now he says he wasn’t but the Tangipahoa Parish Grand Jury by its indictment says he was. And I object to him getting jurors to commit in advance that he wasn’t there_

Defendant complains that the remarks of the prosecutor made in the presence of the entire jury panel could very well have implanted in the minds of the jurors that “a higher judicial body reviewed the accusations against the accused and pre-deter-mined his guilt.”

In examining the transcript of testimony taken at the voir dire, we observe that the trial judge, out of the hearing of the jurors, heard argument from both counsel, and concluded:

... I think the jury is, these people on this jury are mature enough that they are not going to pay attention to that and when the time comes they are going to take the evidence from the witness chair just like I tell them to do. I don’t think that anybody is prejudicing the jury one way of the other but like I say we are getting rediculous (sic) on both sides with all of the time we are taking to pick the jury ....
... I believe we ought to make an effort, I don’t want to deny anybody’s rights or restrict his right on voir dire .... LSA-C.Cr.P. art. 775 reads, in pertinent part:
A mistrial may be ordered, and in a jury case the jury dismissed, when:
Sj! !⅞! ⅜ ⅜ ⅜ ⅜
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or' outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial. State v. Harris, 383 So.2d 1 (La.1980).

The remark complained of does not fall within LSA-C.Cr.P. Article 770, and defendant did not request an admonition pursuant to LSA-C.Cr.P. Article 771. We have reviewed the voir dire, and find that the remark complained of did not so prejudice defendant that it ^as impossible for him to obtain a fair trial. We find no error in the ruling of the trial judge.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR 3

Defendant complains that the trial judge exceeded his authority under LSA-C.Cr.P. art. 787 when he disqualified a prospective juror, Peter Muse. Defendant argues that the voir dire questioning of Muse did not reflect an illegal impediment or physical impediment that would warrant the judge to take it upon himself to excuse Muse and that, therefore, defendant was deprived of a right to accept this juror.

LSA-C.Cr.P. art. 787, entitled “Disqualification of petit jurors in particular cases”, reads as follows:

The court may disqualify a prospective petit juror from service in a particular case when for any reason doubt exists as to the competency of the prospective jur- or to serve in the case.

The court, on its own motion, may excuse a prospective juror by virtue of the fact that it did not reasonably believe that person qualified as a juror. State v. Richmond, 278 So.2d 17 (La.1973). Absent a clear showing of abuse of discretion, the trial court’s ruling on the qualifications of jurors to serve is not to be disturbed on appeal. State v. Jones, 315 So.2d 650 (La.1975).

The record reveals that the prospective juror, Peter Muse, was related to defendant through the marriage of his cousin to defendant’s sister. On voir dire, Muse expressed the belief that his friendship with his cousin and the defendant’s sister could possibly be adversely affected if he served on this jury. Although counsel for the state further questioned the prospective juror, Muse said that “on second thought, I don’t think so, I hope not” when asked if the jury returned a verdict of guilty, did he think it would affect friendship with his cousin and his cousin’s wife. After a conference with both counsel, the trial judge excused Mr. Muse.

Defendant’s assertion that, by the court’s dismissal on its own motion of a prospective juror, the defendant was deprived of a possible choice of a juror is inadequate to show how defendant was prejudiced and, without more, does not constitute a reason for disturbing the trial judge’s ruling. See State v. Richmond.

We find no abuse of discretion on the part of the trial judge in excusing the prospective juror, Peter Muse.

To address briefly defendant’s objection to the failure of the court to dismiss another prospective juror, Leroy Baham, the record reveals that the defense excused Ba-ham. Further, defendant has not argued or stated any ground for this objection either at the trial or on appeal.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR 4

Defendant urges that the trial court erred when it dismissed defendant’s motion for mistrial on the basis that blacks were being systematically excluded by the state on voir dire by extensive use of peremptory challenges.

In State v. Brown, 371 So.2d 751 (La.1979), the Louisiana Supreme Court stated that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is a systematic exclusion over a period of time. State v. Bias, 354 So.2d 1330 (La.1978). The burden is on the defendant to establish a prima facie showing of such exclusion. The motive for the exercise of a peremptory challenge ordinarily is not subject to judicial review, at least in the absence of evidence of systematic exclusion of black jurors from the justice system over a period of time. State v. Haynes, 339 So.2d 328 (La.1976).

Defendant has not shown any pattern or any systematic exclusion of blacks from the jury. In fact, no effort was made by the defense to establish systematic exclusion or pattern of exclusion of blacks. We have reviewed the entire voir dire and find no abuse, or exclusion of persons on racial grounds. Both blacks and whites served on the jury. We, therefore, find no merit to this assignment of error.

ASSIGNMENT OF ERROR 5

Defendant assigns error to the trial court’s allowing into evidence testimony relating to a urine sample taken from defendant subsequent to his arrest. At trial, defense counsel objected to the introduction of the results of a urine test taken from defendant because the urine sample was obtained upon an ex parte court order rather than an order issued after holding a contradictory hearing. Defendant argues that his rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated.

The record reveals that, at the time the urine test was ordered, defendant was in jail following his arrest. The sample was obtained from defendant over his objection and pursuant to an order signed by the trial judge. At the trial, defense objected (out of the presence of the jury) to the admission of the results of the urine test. However, when the urine test slide was actually offered in evidence, defense counsel said “Your Honor, we have no objection to the introduction of the offering into evidence. ...”

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the issue was a blood sample drawn from defendant over defendant’s objection. The court held that evidence consisting of analysis of blood withdrawn at a hospital by a physician from the accused, over his objection, was neither his testimony nor “evidence relating to some communicative act or writing” and was not inadmissible under theory that it violated defendant’s Fifth Amendment privilege. See also State v. Carthan, 377 So.2d 308 (La.1979). Further, the court in Schmerber found that a physician’s withdrawal of a blood sample at the direction of a police officer and the admission in evidence of the blood analysis did not deny the accused due process of law under the Fourteenth Amendment. The Court found that under the circumstances there was ample justification to draw the sample of blood from defendant even though defendant had not given his consent. Testing of bodily evidence, i.e., blood, urine, breath, violates no privilege against self-incrimination. State v. Carthan; State v. Smith, 359 So.2d 157 (La.1978).

The record reveals that the state was justified in requiring defendant to give a urine sample for medical test purposes to test for trichomonas, which was found on the victim following the rape.

However, since the defendant did in fact allow the urine test slide to be entered into evidence, there is no issue for this court to review on appeal. The defense clearly waived any objection that he might have had in the court below.

This assignment is wholly without merit.

ASSIGNMENT OF ERROR 6

Defendant assigns error to the trial judge’s refusal to order a witness for the defense, Julius O’Brien, to leave with the court a composite drawing of the attacker of the victim. O’Brien had been requested by the defense to draw a composite rendering of the victim’s assailant as described to him by the victim.

The record shows that defense counsel questioned O’Brien about the composite picture. The picture was passed around so the jurors could view it. Defendant’s counsel asked O’Brien if he would leave the drawing with the court. O’Brien replied that he could not do so voluntarily, but would if so ordered by the judge. The trial judge replied, “I am not going to order him to do so.” Defendant did not attempt to enter the composite drawing into evidence and made no objection to the court’s ruling.

Matters pertaining to the conduct of a trial are within the sound discretion of the trial court. LSA-C.Cr.P. art. 17; State v. Reeves, 263 La. 923, 269 So.2d 815 (1972).

We find that the trial judge did not abuse his discretion by refusing to order the composite picture of the defendant be left with the trial court where such picture was not offered as evidence at the trial.

There is no merit to this assignment of error.

DECREE

For all of the foregoing reasons, the convictions and sentences of defendant, Charles Williams, are affirmed.

AFFIRMED.

      . A seventh assignment of error dealt with allowing by the court of the tape/transcript testimony of a witness, Jim Richardson, to be read to the jury. The witness was called by the defense and the defendant has voluntarily abandoned in his brief this assignment of error.


text:
    SUCCESSION OF Eros Crosby CRAIN, Jr.
    No. 83 CA 0630.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Robert A. Anderson, Jr., Covington, for Rebecca Crain Christ.
    Joseph Bishop, Jr., Mandeville, for Sharon Haas Crain.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

A show cause order was issued herein pursuant to appellee’s motion to dismiss this appeal on the grounds that the law permits only a suspensive appeal from the type of judgment appealed herein, and appellant perfected only a devolutive appeal.

Appellant, Rebecca Crain Christ, was dismissed as provisional administratrix of this succession by judgment of court, and appel-lee, Sharon Haas Crain, was instituted as testamentary executrix. Thereafter, appellant made demand on appellee to pay attorney’s fees incurred during the provisional administration in the amount of $22,000. Appellee objected to this claim through a dilatory exception to improper use of summary process and a peremptory exception of no cause of action.

After a hearing, the trial court overruled both of the appellee’s exceptions, and rendered judgment in favor of appellant and against appellee as testamentary executrix in the amount of $6,000 for attorney fees of the attorney for the provisional administra-trix.

The judgment, dated December 13, 1982, from which this appeal is taken is entitled “Judgment on Application to Set Attorney’s Fees”, and orders the testamentary executrix, Sharon Haas Crain, to pay Robert A. Anderson, Jr., the attorney for the provisional administratrix, the sum of $6,000. On December 13, 1982, notices of judgment were mailed by the clerk of court, and on January 12, 1983, appellant filed a “Petition and Order for Appeal” requesting a devolutive appeal; an order to that effect was signed by the trial court on the same date.

Appellee, the testamentary executrix, filed a motion to dismiss this appeal on the grounds that it is a devolutive appeal, whereas LSA-C.C.P. Article 3308 provides that only a suspensive appeal may be taken from the trial court’s judgment. The record reflects that only a devolutive appeal was perfected in this case.

The appellee contends that the judgment of the trial court was one homologating a tableau of distribution and therefore subject to the constraints of LSA-C.C.P. Article 3308. However, it is clear that the judgment to which the appeal refers is one setting attorney’s fees in a contested proceeding. In the case of Succession of Daste, 254 La. 403, 223 So.2d 848 (1969), the court reviewed a similar judgment and concluded that it was a judgment settling the claims of the parties, not a judgment homologating a tableau of distribution. Such a judgment may be appealed devolu-tively. We find that the motion to dismiss the appeal in this case has no merit and it is, therefore, denied.

MOTION TO DISMISS APPEAL DENIED.

      . A judgment homologating a tableau of distri-button is in the record; however, it was not signed until March 3, 1983, or seven weeks after the subject appeal was moved and granted.


author: PONDER, Judge.

text:
    Maxine JEFFERSON v. Sam SARAGUSA, et al.
    No. 83 CA 0834.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Charles B.W. Palmer, Amite, for plaintiff-appellant.
    Fannie Burch, Amite, for defendant-ap-pellee Sam Saragusa.
    L.B. Ponder, Jr., Amite, in pro. per.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Appellees filed a motion to dismiss this appeal on the grounds that it was not timely filed in that appeal costs were not paid within the applicable delay; that the order allowing appellants to appeal in forma pau-peris was signed by a judge without authority; that affidavits of poverty were not attached to the motion; and that appellants have abandoned the appeal. We issued an order to show cause.

We recall the order and deny the motion.

The trial court sustained exceptions of no right and/or no cause of action. A timely motion for a new trial was denied. A timely motion for a devolutive appeal in forma pauperis was granted. After the record was lodged in our court, appellees filed a motion to remand to allow an opportunity to traverse appellants’ right to proceed in forma pauperis. After appellee took no further action in the trial court for nearly three years, appellants moved to assign a hearing on appellees’ rule to traverse. The court maintained appellants’ right to appeal in forma pauperis.

The contention that the appeal was not timely perfected is without merit. Appellants obtained a timely order granting them an appeal in forma pauperis. Also without merit is the contention that the judge signing the order for appeal was without authority. He is a judge of a different division in the same judicial district. Each judicial district constitutes a single court. Piper v. Olinde Hardware & Supply Co., Inc., 288 So.2d 626 (La.1974). The order was properly signed.

The failure to attach affidavits of poverty to the original motion to be allowed to proceed in forma pauperis was a relative nullity which was cured by the filing of the affidavits before the motion to traverse.

A motion to dismiss an appeal on grounds of abandonment should be granted only on strong evidence of an intent to abandon. Perkins v. Coker, 404 So.2d 902 (La.1981). The appellants have not evinced a clear intent to abandon. The evidence is to the contrary.

RULE RECALLED; MOTION TO DISMISS DENIED.


author: EDWARDS, Judge.

text:
    John S. POINSETTE and John Delatte, Jr. v. Mr. and Mrs. Charles LIEUX.
    No. 83-CA-0971.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Joseph B. Dupont, Dupont, Dupont & Dupont, Plaquemine, for plaintiffs-appellants John S. Poinsette, et al.
    Jimmie R. Major, Clifton 0. Bingham, Jr., Baton Rouge, for defendants-appellees Mr. & Mrs. Charles Lieux.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The present appeal was taken from a judgment denying the plaintiffs’ request for injunctive relief, damages and attorney fees. This court, ex proprio motu, issued a rule directed to plaintiffs-appellants, John S. Poinsette and John Delatte, Jr., to show cause why this appeal should not be dismissed as premature. The pertinent dates herein are:

1. May 11, 1983 — case tried and oral reasons announced.
2. May 24, 1983 — appeal order signed.
3. June 1, 1983 — written judgment signed.

La.C.C.P. art. 1911, as amended, provides as follows:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in article 2083, no appeal may be taken from a final judgment until the requirement of this article has been fulfilled.”

Contrary to the provisions of this article, the present appeal was taken before the signing of judgment by the trial judge. Since there was no final judgment from which an appeal could then be taken, the order of appeal is a nullity. Brown v. Brown, 421 So.2d 952 (La.App. 1st Cir. 1982); Painter v. Continental Union Assurance Co., 407 So.2d 500 (La.App. 1st Cir.1981).

Accordingly, for the foregoing reasons, this appeal is dismissed at appellants’ cost.

APPEAL DISMISSED.


text:
    MAYOR’S COURT OF the CITY OF GOLDEN MEADOW v. Grady C. WEEKS.
    No. 83 KA 1004.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    John J. Erny, Jr., Asst. Dist. Atty., Thi-bodaux, for State of La.
    Grady C. Weeks, in pro. per.
    Before COVINGTON, COLE and SA-VOIE, JJ.

      . This appeal comes to us captioned incorrectly. The action is brought properly by the “City of Golden Meadow,” not by the mayor’s court thereof. Criminal violations are against governmental entities (the people), not against the judiciary.

   COLE, Judge.

This court, on its own motion, ordered the parties to show cause why this appeal should not be dismissed because the judgment is non-appealable. The defendant has not responded.

The defendant, Grady C. Weeks, was convicted of speeding and sentenced to pay a fine of $50.00 plus costs by the Mayor s Court of Golden Meadow. Defendant appealed the conviction to the Seventeenth Judicial District Court. After a trial de novo, the district court affirmed the conviction and sentence of the Mayor’s court. The defendant appeals to this court from the judgment rendered against him in the district court.

A criminal case in which the potential punishment is not more than six months imprisonment with or without hard labor, is not triable .by jury. La. Const, art. I, § 17. The maximum punishment for the offense of which the defendant is charged does not exceed six months in prison and therefore is not triable by jury. Only criminal cases triable by jury are appealable to this court. La. Const, art. V, § 10(A)(3). Therefore, this matter is not appealable.

The defendant’s proper remedy is an application for a writ of review. La. Code of Crim.P. art. 912.1(C). In State v. Ritter, 428 So.2d 964 (La.App. 1st Cir.1983), this court held the defendant did not have a right to appeal his conviction because the crime for which he was charged was not triable by jury. The court noted the defendant’s proper remedy was by application for a writ of review.

For these reasons, the appeal is dismissed. Costs are to be paid by appellant.

APPEAL DISMISSED.


text:
    Percy T. THOMAS v. Larry D. KNIGHT.
    No. 83 CA 1045.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Donald Fendlason, Bogalusa, for plaintiff.
    Delos Johnson, Franklinton, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This Court, ex proprio motu, issued a rule to show cause why this suspensive appeal from a judgment of eviction should not be dismissed as untimely filed.

On May 16, 1983, plaintiff, Percy T. Thomas, filed an eviction proceeding against defendant, Larry D. Knight. Defendant did not file an answer to this rule to show cause, but at the hearing held on June 27, 1983, sought to establish an affirmative defense to the eviction proceeding. At the conclusion of the hearing, judgment was rendered ordering the eviction of the defendant, and a judgment of eviction was signed by the trial court on June 29, 1983. It was not until July 7, 1983, that defendant obtained an order for suspensive appeal and posted bond thereon on July 8, 1983.

LSA-C.C.P. art. 4735 provides as follows:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.” (Emphasis added)

It is clear that the applicable time period for taking a suspensive appeal is within twenty-four hours after the rendition of judgment. In the instant case, plaintiffs suspensive appeal was not timely perfected since it was not filed within twenty-four hours of the rendition of the judgment. Therefore, this appeal cannot be maintained as suspensive. LSA-C.C.P. art. 4735. Freemin v. Coglaiti, 411 So.2d 471 (La.App. 1st Cir.1981).

Although an appeal must be dismissed as suspensive, it can be maintained as- devolutive, if taken within the sixty day delay for devolutive appeals provided in LSA-C.C.P. art. 2087. Estate of Boudreaux v. Verdin, 425 So.2d 873 (La.App. 1st Cir.1982); Freemin v. Coglaiti, supra. In the instant case, the appeal was taken within the sixty day period and thus meets the requirements for a devolutive appeal.

Accordingly, the appeal is dismissed as a suspensive appeal, but maintained as a de-volutive appeal.

SUSPENSIVE APPEAL DISMISSED; DEVOLUTIVE APPEAL MAINTAINED.


text:
    STATE of Louisiana v. Douglas C. HOWLAND.
    No. 83 KA 1088.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Paul T. Thompson, Baker, for plaintiff, City of Baker, appellee.
    Rhett Ryland, Baton Rouge, for defendant, Douglas C. Howland, appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This court issued, ex proprio motu, an order to show cause why this appeal should not be dismissed because the judgment herein is not appealable. Undoubtedly, the show cause order was issued because the offense is not triable by jury and, therefore, not appealable to this court.

Defendant, Douglas C. Howland, was charged with disturbing the peace in violation of Baker City Ordinances 14-18 and 14-19(2), (5), and (7). After trial in the Baker City Court, the trial judge found him guilty as charged. Defendant was sentenced to a fine of $100.00, with $50.00 suspended, and court costs of $27.50, for a total of $77.50. He was placed on inactive probation for a period of 90 days, with the condition that he have no further violations during probation.

Defendant filed a written motion for appeal and a prepared order of appeal for the trial judge’s signature, all in one document. The court to which the appeal was being taken was not indicated thereon. The record was eventually lodged with this court.

Under L.S.A.-R.S. 13:1896B, the appeal of this matter properly lies in district court because the offense was not tried under a state statute.

However, under the provisions of La.R.S. 13:4441, this court is authorized to transfer this matter to the court of proper jurisdiction. Accordingly, this matter is transferred to the Nineteenth Judicial District Court for assignment therein in accordance with the district court rules thereof.

For the above and foregoing reasons, the motion to dismiss is denied. The matter is transferred to the Nineteenth Judicial District Court.

MOTION DENIED; MATTER TRANSFERRED TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA.

      . See State v. Ritter, 428 So.2d 964 (La.App. 1st Cir.1983).

      . We note that the return date was over 30 days after the appeal order, which is not proper for an appeal to district court. See R.S. 13:1896 C.

      . La.R.S. 13:4441 reads as follows:
      “When an appeal is taken and perfected to an appellate court having no jurisdiction thereof, the court to which it is taken may transfer it to the court having jurisdiction thereof, instead of dismissing the appeal. The appellate court to which the appeal is transferred shall proceed as if the appeal had been taken to it originally.
      "If an appeal is transferred erroneously to the supreme court, the latter shall retransfer it to the court having appellate jurisdiction thereof. If an appeal is transferred by a district court erroneously to a court of appeal, the latter shall retransfer it to the district court to which it was taken originally, or to the supreme court if the latter has jurisdiction thereof.
      "This section applies to appeals in all cases, civil or criminal, to appeals over which a court of appeal has jurisdiction but which has been taken to the wrong court of appeal, and to all courts having appellate jurisdiction. As amended Acts 1960, No. 38, § 1.”


author: SHORTESS, Judge.

text:
    Elois WESLEY, et al. v. Dr. Richard M. MOON, et al.
    No. 83 CM 0883.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Charles L. Chassaignac, New Orleans, for defendant-appellee Hoffman-LaRoche, Inc.
    Myron A. Walker, Jr., Baton Rouge, for defendant-appellee Dr. Moon.
    T. Kenneth Elbert, Baton Rouge, for plaintiff-appellant Wesley.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

With an opinion designated “Not for Publication,” Docket No. 83CM0419, rendered June 28,1983, entitled “Elois Wesley, et al. vs. Dr. Richard M. Moon, et al.,” we denied a motion to dismiss an unlodged appeal filed by Hoffman-LaRoche, Inc., and Dr. Richard M. Moon. We noted therein that we were denying the motion because there was no documentation that a motion for new trial had not been filed accompanying the motion to dismiss.

An amended and supplemental motion to d'smiss the unlodged appeal has now been filed by Richard M. Moon, M.D., and Hoffman-LaRoche, Inc. Along with the motion is a certificate from the Clerk of Court for the 19th Judicial District Court that no motion for new trial was timely filed.

Documentation of the following dates and facts has been provided by movers:

1. December 3, 1982 — judgment rendered;

2. December 7, 1982 — -judgment signed;

3. March 7, 1983 — motion for appeal filed;

4. March 15, 1983 — motion for appeal signed.

The trial judge did not take the case under advisement and ruled from the bench. No request for notice of judgment was made. No notice of judgment was required to be given. La.C.C.P. art. 1913. The delay for a new trial began to run on the day after the signing of the judgment. La.C.C.P. art. 1974. The delays began on December 8, 1982, and ran seven days, exclusive of holidays, through December 16, 1982.

The time for taking a devolutive appeal under La.C.C.P. art. 2087(1) began to run on December 17, 1982. It expired 60 days later on February 14, 1983, at which time the judgment of the trial court became final.

Defendant’s appeal was filed on March 7, 1982, and was signed on March 15, 1982. Both dates are well after the prescribed time limit set forth in the Code of Civil Procedure. Since the appellant failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal under La.C.C.P. art. 2088. McKean v. Campbell, 392 So.2d 129 (La.App. 1st Cir.1980).

We note, ex proprio motu, that appellant’s counsel gave his address as 1261 Government Street, Baton Rouge, Louisiana 70802, when he filed his untimely appeal. This court’s show cause order mailed to that address was returned by the U.S. postal authority with a forwarding address noted on the envelope. The notice sent to the suggested forwarding address was returned and marked “unclaimed.” Counsel is under an obligation to keep the court informed as to his correct address. La.C. C.P. art. 863; Uniform Rules, Courts of Appeal 2-1.3(7).

The motion to dismiss is granted at appellant’s costs.

APPEAL DISMISSED.


text:
    STATE of Louisiana v. Mark LOUPE.
    No. 83 KW 0878.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Granted Oct. 28, 1983.
    Writ Denied Dec. 16, 1983.
    Alexander L. Doyle, Houma, for plaintiff-respondent.
    Gordon Hackman, Boutte, for defendant-relator.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This application for review was remanded to us “for reconsideration by a panel of three judges, particularly on the issue of probable cause,” citing City of Baton Rouge v. Mitchell, 325 So.2d 588 (La.1976).

We have considered and adhere to our prior decision that there was no error.

Defendant, charged with driving while intoxicated, filed a motion to suppress all evidence against him. When the motion was denied he entered a plea of nolo con-tendere reserving his right to contest the ruling on his motion to suppress.

Defendant was involved in an accident without fault on his part. The investigating state police trooper testified that acting on standard procedure used when there was a fatal accident, he advised plaintiff of his rights and obtained his consent for a blood test, which showed a 0.12% content. The defendant testified he was rendered unconscious and does not remember giving his consent to the blood test. The trial court indicated it believed the trooper’s version and therefore found consent. A voluntary consent renders a search and seizure constitutionally valid. State v. Montgomery, 432 So.2d 340 (La.App. 1st Cir.1983). A trial court’s decision on the validity of consent is entitled to great weight when it turns upon a question of credibility of witnesses. State v. Patterson, 432 So.2d 1021 (La.App. 1st Cir.1983).

Because this case involves actual consent, which the trial court found and we have affirmed, it is unnecessary to apply the tests of reasonable grounds of La.R.S. 32:661(A) discussed in City of Baton Rouge v. Mitchell, supra.

The other grounds urged by defendant were not urged at the trial level or were not relevant at a motion to suppress. See State v. Tanner, 432 So.2d 1186 (La.App. 3d Cir.1983).

For these reasons, we find no error.

WRIT DENIED.


text:
    GULF ENTERPRISES, INC. v. Mrs. H.E. MOORE, Jr.
    No. 83 CW 1125.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    John D. Brady, Baton Rouge, for plaintiff-appellee Gulf Enterprises, Inc.
    W. Arthur Abercrombie, Jr., Baton Rouge, for intervenor-appellant Job Finders, Inc. and defendant-appellee Mrs. H.E. Moore, Jr.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Upon application of Job Finders, Inc., we issued an alternative writ ordering the trial judge to reverse a ruling sustaining plaintiff’s exception of improper cumulation of actions or, in the alternative, for the trial judge or the respondent to show cause why the writ should not be made peremptory. The respondent has filed a brief. The trial judge has advised that he will not.

We make the writ peremptory.

Job Finders, Inc. allegedly rendered services to Gulf Enterprises, Inc. for which it was due $6000.00. Because of cash flow problems Gulf could not pay the fee but agreed through its chief executive officer to allow the trade out of the bill. Mrs. H.E. Moore, Jr., president and principal stockholder of Job Finders, Inc., allowed Gulf Enterprises, Inc. to place carpet and wall covering in her home. Gulf Enterprises, Inc. sued Mrs. Moore on open account for the carpet and wall covering. Job Finders, Inc. attempted to intervene. Gulf Enterprises filed an exception of improper cumulation which was sustained.

Job Finders contends that Gulf Enterprises agreed to provide the merchandise and services to Mrs. Moore as partial satisfaction of the indebtedness due to Job Finders. If that be true, which is a matter of proof at trial, Gulf Enterprises should not be allowed to evade its liabilities under both the original obligation to pay for services rendered to it and the agreement to allow trade out of part of the first obligation by requiring Mrs. Moore to pay for the material and services. Evidently there is an understanding between Job Finders and Mrs. Moore since they are asserting a trade out and compensation not an indebtedness of Gulf Enterprises for the original full amount.

Under these circumstances, we find that Job Finders has a justiciable right related to and connected to the object of the pending suit and therefore should be allowed to intervene.

This result has the effect of promoting efficiency of judicial administration and reducing multiplicity of suits. It may even promote justice. Certainly, we find no prejudice to Gulf Enterprises in requiring it to litigate all issues in one proceeding.

For these reasons, we make the writ peremptory and order the trial court to reverse its ruling of September 7, 1983, sustaining plaintiff’s exception of improper cumulation of actions and dismissing Job Finders’ intervention and to enter a ruling denying the said exception.

WRIT MADE PEREMPTORY.

      . We need not inquire at this time whether there is a stipulation pour autri, an assignment between Job Finders, Inc., and Mrs. Moore or some other legal condition that would allow recovery. That can be developed at trial on the merits. It is sufficient now to find a justiciable right related to and connected to the object of the pending suit. LSA-C.C.P. art. 1091.


text:
    Delores M. MACK v. WINN DIXIE OF LOUISIANA, INC., et al.
    No. 83CA0223.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Larry P. Boudreaux, Thibodaux, for plaintiff-appellee Delores M. Mack.
    Stephen D. Ridley of McCalla, Thompson, Pyburn & Ridley, New Orleans, for defendant-appellant Winn-Dixie of Louisiana, Inc.
    James A.- McGraw, Legal Unit, Office of Employment Security, Baton Rouge, for defendant-appellee Louisiana Dept, of Employment Security.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On October 12, 1981, Delores Mack (plaintiff) quit her job as cashier with Winn Dixie of Louisiana, Inc. (defendant). She gave as her reason for quitting the fact that she was pregnant and suffering from morning sickness. On October 29, 1981, she applied for unemployment security benefits. Her claim was denied on October 31 after an agency determination that she had left her employment because of pregnancy but was not required to leave by her employer. Her leaving was determined to be for personal reasons and not for good cause connected with her employment. On November 6, 1981, plaintiff appealed that disqualification, and a hearing before an appeals referee was scheduled for November 20, 1981. At that time, a hearing was held before the appeals tribunal of the State of Louisiana Office of Employment Security. The agency’s original determination was upheld in writing. That decision was mailed to plaintiff on November 24, 1981. It also informed plaintiff of her appeal rights as follows:

FURTHER APPEALS RIGHTS. THIS DECISION BECOMES FINAL UNLESS AN APPEAL IS FILED WITH THE LOUISIANA BOARD OF REVIEW, P.O. BOX 44094, BATON ROUGE, LA. 70804, OR WITH THE OFFICE SHOWN BELOW, WITHIN 15 DAYS AFTER THE MAILING DATE AS SHOWN BELOW. APPEALS FILED BY MAIL MUST BE RECEIVED WITHIN THE 15 DAY TIME LIMIT.

The fifteen-day period for appeal expired on December 9, 1981. On December 10, the Louisiana Board of Review received plaintiffs appeal and subsequently dismissed same as perempted under the provisions of La.R.S. 23:1630 which reads in part as follows:

The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal tribunal, initiate a review of such decision or allow an appeal to be filed by any party entitled to notice of such decision.

Plaintiff then filed a petition for judicial review with the Seventeenth Judicial District Court, Lafourche Parish, on February 11, 1982. On November 10, 1982, that court reversed the decision of the Board of Review and entered judgment for plaintiff on the merits. Defendant has brought this appeal urging the following assignments of error: (1) the court erred in overturning the decision of the Board of Review that plaintiffs claim had perempted, and (2) the court erred in deciding the merits of plaintiffs claim which had not at first been decided by the Board of Review.

La.R.S. 23:1630 as quoted above clearly provides a fifteen-day period for appealing a decision of an appeals tribunal. This is a period of peremption and its running destroys the claim so completely that any right of action ceases to exist and is lost. Austin v. Administrator, Div. of Emp. Sec., Dept. of Lab., 158 So.2d 74 (La.App. 1st Cir.1963); Sweet v. Brown, 125 So.2d 261 (La.App. 3rd Cir.1960); Delta Air Lines, Inc. v. Brown, 115 So.2d 903 (La.App.Orl.Cir.1959).

Plaintiffs appeal was not received until the sixteenth day following the date of mailing of the appeals referee’s decision. The jurisprudence has been uniformly consistent in this area. After the fifteenth day, any right of action plaintiff had was lost and could not be resurrected. The decision of the district court reversing the Board of Review was erroneous as a matter of law and must be reversed.

For the above reasons, the decision of the trial court is reversed. We have determined that plaintiff’s claim was not pursued frivolously so costs cannot be assessed against her. La.R.S. 23:1692. Costs are taxed to defendant.

REVERSED AND RENDERED.