author: COLE, Judge.

text:
    Wilton COMARDELLE v. JEANDRON CHEVROLET, INC., et al.
    No. 83 CA 0593.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Gordon Hackman, Boutte, for Wilton Co-mardelle.
    Philip J. McMahon of McMahon, McCol-lam & Hargis, Houma, for Jeandron Chevrolet,- Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not plaintiff proved he received “wages in lieu of compensation” so as to interrupt prescription of his workmen’s compensation claim under La.R.S. 23:1209.

The facts are as follows. Plaintiff Wilton Comardelle was employed as a salesman by defendant Jeandron Chevrolet in Lockport, Louisiana. On August 31, 1977 he allegedly suffered a heart attack while at work. He was hospitalized for ten days while being treated for several ailments and returned to work a few weeks later. He continued working until February of 1978 when he was fired. During most of this period he was paid his regular salary of $400 a month “draw against commission.”

In October of 1978, some 14 months after his alleged heart attack, Mr. Comardelle filed suit against Jeandron Chevrolet, alleging he was totally and permanently disabled and therefore entitled to workmen’s compensation benefits. Defendant filed the peremptory exception urging the objection of prescription; a hearing was held and the court sustained the exception. Plaintiff asked for a new trial which was granted. Another hearing was held and the court again rendered judgment sustaining the exception and dismissing plaintiff’s claim. Plaintiff then filed this appeal.

Appellant contends the court erred in ruling his claim had prescribed. La.R.S. 23:1209 governs this matter and reads in pertinent part as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment.”

The first sentence of the statute bars claims unless suit has been filed or the parties have agreed upon the compensation within one year of the accident or death of the employee. The next sentence creates an exception to this rule, i.e., if payments have been made the time period does not expire until one year after the date of the last payment.

In this case the suit was clearly not filed until more than one year after the date of the “accident,” therefore, our only question is whether or not there was an interruption of prescription, in the nature of payments by the employer.

Because the suit was filed more than one year after the accident, plaintiff has the burden of proving his suit has not prescribed. Bell v. Gulf Insurance Company, 313 So.2d 277 (La.App. 3d Cir.1975), writ denied, 317 So.2d 627 (La.1975). He attempts to defeat the prescription claim by arguing that during the period following his alleged heart attack, he was paid “wages in lieu of compensation” and therefore had a year from the last payment (in February of 1978) in which to file suit.

The test for determining if the wages paid were in lieu of compensation is whether or not the wages were actually earned by the employee. Matthews v. New Orleans Public Service, 349 So.2d 408 (La. App. 4th Cir.1977), writ denied, 351 So.2d 170 (La.1977). In making this inquiry we have examined three aspects of Mr. Comar-delle’s job: his duties, his work schedule and his earnings.

The fact that an employee’s duties are similar before and after his accident is a relevant (although not conclusive) factor in determining whether or not his wages paid subsequent to the injury were earned. See Heymann v. Dixie Leasing Corporation, 250 So.2d 118 (La.App. 4th Cir.1971). The sales manager, Edwin Gautreaux, and the other salesmen, George Parr and Irvin Dufrene, testified Mr. Comardelle had the same duties after his alleged heart attack as he had before. The salesmen rotated daily in their positions; one was stationed in the show room, one on the used car lot and one was “on the road” making contacts with potential customers. When Mr. Co-mardelle returned to work he participated in this rotation just as he had prior to his illness.

Mr. Comardelle testified that when he returned to work he worked only part-time until January of 1978; however, he could not be specific as to the hours or the number of days he worked per week. The other employees said he returned to work on a full time basis although he was often absent. Concerning his salary, all who testified stated Mr. Comardelle was paid the same as before: $400 a month draw against commission.

After considering the foregoing evidence the trial court found as follows:

“The Court also finds as a fact from the testimony at the hearing that plaintiff was not paid wages in lieu of compensation from August 31, 1977 to February 10, 1978 when he was discharged but was paid ‘wages’ because he had returned to work after he received hospitalization from his ulcer attack.[] His ‘wages’ were in the nature of a draw against commissions, and because of his lack of production and apparent dereliction of duty he was let go in February, 1978. The Court further recalls that the testimony indicated that his employer was not even aware that he had a workmen (sic) compensation claim until suit was filed in October, 1978, some fourteen (14) months after the alleged injury of August 31, 1977, and that his hospitalization had been handled under a group hospital policy.”

We find no abuse of discretion in the trial court’s findings. Appellant simply failed to prove that his wages were not earned. It was established at trial that his duties were not any different after his illness than before. Although there was some evidence that he was often absent from work, appellant did not show how much work he missed. The absence of this information hinders a determination that the wages were given as a gratuity. .

Further, appellant offered no evidence showing he made fewer sales after the illness than before. Even if he had in fact made fewer sales, this would not necessarily prove he was not earning his salary. The very nature of the draw against commission arrangement makes it difficult to characterize the $400 salary as a gratuity. Under this scheme it is agreed in advance that a salesman is entitled to $400 a month even if he makes no sales.

Another factor, whether or not the employer has lulled the employee into a false sense of security, has been considered by several courts. See Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972), rehearing denied 1972. In Lester v. Rebel Crane & Serv. Co., 394 So.2d 1230 (La.1981), Justice Blanche dissented from the majority opinion as to whether or not plaintiff had proved he was paid wages in lieu of compensation so as to interrupt prescription. The trial court had decided the issue based on a stipulation in the record. Justice Blanche felt it was inappropriate to decide the issue by stipulation and stated as follows on page 1231:

“Whether wages were paid ‘in lieu of compensation’ in a situation where the employee is not working is a factual determination that should be based on whether an employee was led to believe that the wages were actually workmen’s compensation disability benefits or a substitute for such benefits, and whether the employee therefore felt he need not file suit for those benefits.”

In order for this prescriptive exception to apply the employee must establish that some action or inaction by the employer induced him to withhold suit until the claim had prescribed. Dupaquier, supra; Ray v. City of New Orleans, 284 So.2d 83 (La. App. 4th Cir.1973), writ denied, 286 So.2d 661 (La.1973). Not one iota of evidence was offered showing that appellant's employer, either directly or indirectly, did anything to induce him not to file suit.

For these reasons, we find the trial court did not err in sustaining the exception of prescription.

Appellant contends the court erred in two procedural matters. First, he argues that under La.Code Civ.P. art. 934, the court should have ordered the petition amended so as to remove the grounds of the objection.

Code Civ.P. art. 934 reads as follows:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

In the present case the exception was sustained because suit was filed more than one year after the alleged accident, and there was no evidence at the hearing showing any event had occurred to interrupt prescription. Therefore, the grounds of the objection could not possibly have been removed by amending the petition and the court was correct in dismissing the suit.

Second, appellant contends the court erred in failing to compel discovery. In order to discuss this issue it is necessary to set forth the following sequence of events. The first judgment maintaining the objection of prescription was rendered on September 29, 1980. Appellant immediately filed his motion for a new trial and shortly thereafter filed seven interrogatories upon the defendant. Defendant filed an objection to the interrogatories based on the fact that judgment had been rendered dismissing plaintiffs case and as of yet no new trial had been granted. In response, appellant filed a motion to compel discovery which the court said it would not consider until the motion for new trial was argued and decided. On January 30, 1981 the court granted the new trial and set it for May 1, 1981. The court did not act on the motion to compel discovery nor did appellant pursue it. The exception was reheard on May 1, 1981, and the matter left open for certain deposition evidence. There is no showing that appellant filed any further motions to compel discovery or pursued the interrogatories in any way. Judgment was rendered in December of 1981.

Although it is true the court said it would act on the discovery motion when it determined whether or not a rehearing would be granted, we find appellant was not prejudiced in any way. It would be a disservice to the judicial system to reverse a case on this basis. Appellant had ample time to pursue his right to compel during the many months in which suit was ongoing, yet he remained silent until this appeal. More importantly, he had ample opportunity in court to develop the information sought by the interrogatories which was relevant to the question of prescription. Since he has not shown any prejudice and because his own silence contributed to the lack of action by the trial court, we conclude this argument is without merit.

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . Testimony at trial was conflicting on this point. Plaintiff stated he was off work approximately six weeks. Other employees at Jeandron Chevrolet testified plaintiff returned to work within four weeks or sometime in September.

      . Plaintiff testified that beginning in January of 1978 he was paid straight commission only.

      . The trial court found Mr. Comardelle was hospitalized for gastric pain due to a peptic ulcer rather than a heart attack. Because of our conclusion on the prescription issue, we need not discuss this matter.

      . The majority opinion is reported at 393 So.2d 674.


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    Joni L. BROWN and Joan H. Brown Watson v. Thomas P. MORGAN.
    No. 83 CA 0597.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      W. Hugh Sibley, Greensburg, for plaintiff-appellee.
    Wayne T. McGaw, New Orleans, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit in tort for damages against Thomas P. Morgan arising out of an automobile accident by Joni L. Brown for personal injuries and by Joan H. Brown Watson for property damage and related expenses. At the trial, the parties stipulated that the personal injury claim of Brown had been settled, Morgan was at fault in the accident and liable for damages, Watson’s automobile was a total loss as a result of the accident and Watson was entitled to recover a wrecker fee of $52.50. The jury returned a verdict in favor of Watson for $3,500 for the value of her automobile and $2,500 for replacement car rental. The trial court rendered judgment against Morgan for $6,052.50 and assessed a $100 expert witness fee. This suspensive appeal followed. Watson answered the appeal seeking damages for frivolous appeal.

FACTS

On April 17, 1981, at approximately 9:45 p.m., Joni Brown was operating a 1977 Ford LTD owned by her mother, Joan H. Brown Watson, in a northerly direction on U.S. Highway 51 in the City of Amite, Parish of Tangipahoa, Louisiana. Timmy and Tiffany Brown (Watson’s children) were passengers in the vehicle. At this same time and place, Thomas Morgan was operating a 1980 Chevrolet pickup truck owned by him in a northerly direction on U.S. Highway 51 and was following the Watson vehicle. A collision occurred when Brown slowed for a vehicle in front of her which was making a left turn. Morgan failed to slow his vehicle and struck the Watson vehicle in the rear.

EXPERT WITNESS

To prove the property damage claim for her vehicle, Watson offered the testimony of Joseph M. Currier as an expert witness in the field of sales of used automobiles and their repairs. Morgan objected to Currier’s qualification as an expert witness, but the trial court overruled his objection and accepted Currier as such an expert. Morgan now contends that the trial court committed error by accepting Currier as an expert and awarding him an expert witness fee of $100.

A trial judge has much discretion in determining whether to qualify a witness as an expert and his judgment on such matter will not be disturbed by an appellate court unless it is clearly erroneous. Barker v. Loxco, Inc., 432 So.2d 975 (La.App. 1st Cir.1983); Maxwell v. State, Department of Transportation and Development, 391 So.2d 1230 (La.App. 1st Cir. 1980), writ denied, 394 So.2d 281 (La.1980). Currier testified he was not a certified appraiser but had thirty-five years of business experience in repairing wrecked cars and in buying and selling used cars. This court has held that experience alone may be sufficient to qualify a witness as an expert. Maxwell, 391 So.2d at 1233. Currier also appeared in court approximately twenty times and gave testimony about the value of vehicles and the costs of their repair. Based on the above testimony, we cannot say that the trial judge was clearly erroneous in qualifying Currier as an expert witness.

These assignments of error are without merit.

PROPERTY DAMAGE

Morgan contends that the jury committed error by awarding $3,500 for the damages to Watson’s vehicle because it should not have given weight to the testimony of Currier and, therefore, she failed to prove her claim by a preponderance of the evidence. Specifically, Morgan contends that Currier failed to consider what accessories the vehicle had and the value of the accessories, failed to take into consideration the salvage value of the vehicle after the accident, did not know the exact mileage of the vehicle and did not follow the National Automobile Dealer book (NADA book).

It is well settled that when an automobile is a total loss the owner is entitled to recover the market value of the vehicle before the accident less its salvage value, if any. Sibley v. Insured Lloyds, 442 So.2d 627 (La.App. 1st Cir.1983);

Cf. Coleman v. Victor, 326 So.2d 344 (La.1976). Watson had the burden of proving her damages by a preponderance of the evidence. Coleman, 326 So.2d at 348. Because the parties stipulated that Watson’s vehicle was a total loss, her only elements of proof were (1) the market value of the vehicle before the accident and (2) the salvage value of the vehicle, if any.

Currier was the only witness to testify about the market value of Watson’s vehicle prior to the accident. Currier was aware of the condition of the vehicle before the accident because he had worked on it about one month previously. Currier also personally towed the vehicle to his shop after the accident and observed that it was a total loss. Currier consulted the NADA book and found a value for Watson’s vehicle of $2,700. However, Currier testified that the NADA book is only a guide and gives estimated average appraisal values. He further testified that the vehicle had approximately thirty-five to thirty-seven thousand miles on it at the time of the accident. Currier was of the opinion that Watson’s vehicle was worth $3,500 because of the amount of mileage on the vehicle and because it was in excellent shape. Currier conceded he did not consider the accessories on the vehicle when he made his estimate. Watson testified that the vehicle had leather upholstery, air-conditioning, power steering and an AM-PM eight track radio. Watson also testified that the vehicle was in excellent shape and had about thirty-six thousand miles on it at the time of the accident. Morgan presented no evidence to rebut this testimony. This is sufficient evidence to support a finding that the market value of Watson’s vehicle before the accident was $3,500.

The record is devoid of any evidence to establish the salvage value of Watson’s vehicle after the accident. Currier testified that he did not obtain a salvage estimate and did not know what the salvage value was because he was not in the salvage business. Watson testified that she did not determine what the value of the vehicle was after the accident. She also indicated that the damaged vehicle was taken from Currier’s place of business sometime after the accident, but she did not know by whom and did not know what happened to it.

Proof of salvage value is essential to a recovery for total loss of a vehicle. Roy v. Commercial Union Assurance Company, 385 So.2d 1273 (La.App. 3rd Cir.1980); Cheramie v. Jones, 327 So.2d 601 (La.App. 4th Cir.1976); Burton v. Southwestern Gas & Electric Company, 107 So.2d 67 (La.App. 2nd Cir.1958). Watson has failed to prove this element of this portion of her claim. This portion of the cause will be remanded to the trial court to give both sides an opportunity to offer evidence as to the value of the salvage. Cf. Lavallais v. Dairyland Insurance Company, 401 So.2d 559 (La.App. 3rd Cir.1981).

REPLACEMENT RENTAL

At the trial, Watson claimed $6,583.50 for rental of a substitute vehicle, which sum represented $6,270 for 418 days of rental at $15 per day and $313.50 for taxes thereon. The jury awarded Watson $2,500 for this claim (166⅜ days at $15 per day). Morgan contends that the jury verdict is based upon evidence improperly admitted by the trial judge and that the award by the jury is in error because it is for a period of more than sixty days.

Watson testified that about a week or so after the accident she needed an automobile to go to work, to take her children to school and to go to a babysitter. She went to Ross Downing Chevrolet, Inc. (Ross) in Hammond, Louisiana, and rented a substitute vehicle for $15 per day. She retained this vehicle for 418 days. Watson was allowed to give this testimony without objection. Her counsel then attempted to introduce into evidence a copy of her rental agreement with Ross. Counsel for Morgan objected because the copy was not signed and “this is not evidence of the indebtedness at all.” The trial judge conceded that the document was “at best a very poor carbon copy of the original” but allowed the document to be filed in evidence. Counsel for Morgan then further objected asserting that under the best evidence rule the original should be used and not a copy. Subsequently, on cross-examination by counsel for Morgan, Watson again testified that she used the substitute vehicle for 418 days.

Morgan’s contention that only the original rental agreement is admissible is without merit. Where there is a mechanical reproduction of an original document, it is admissible in evidence if the content of the copy accurately reflects that of the original. La.R.S. 15:436; State v. Square, 433 So.2d 104 (La.1983). However, the copy of the car rental agreement in the instant case is not admissible in evidence because it does not bear the signatures of either the lessor or the customer and, therefore, cannot be documentary evidence of the agreement between the parties. Even if this document is offered to show the rental payments due by Watson, it is not admissible. Watson admitted that she has not made any rental payments on the vehicle. Watson did not testify that she prepared the information on the billing contained in the document. Rather, the evidence indicates that the billing information was prepared by Ross. Watson cannot testify to what billing information was given her by Ross because this would be hearsay. Brasseaux v. Stand-By Corporation, 402 So.2d 140 (La.App. 1st Cir.1981), writ denied, 409 So.2d 617 (La.1981); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980). Accordingly, we find that the trial court committed error by allowing the unsigned copy of the car rental agreement to be introduced into evidence.

Although a trial judge commits an error on an evidentiary ruling in a civil jury trial, an appellate court should, if it can, render a judgment on the record if the record is otherwise complete. Cf. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Steinbach v. Barfield, 428 So.2d 915 (La.App. 1st Cir.1983), writ denied, 435 So.2d 431 (La.1983). The record reflects that Watson testified without objection that she rented a substitute vehicle from Ross for 418 days at $15 per day. Since Morgan did not object to this evidence in the trial court, he has waived his right to complain about it on this appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir. 1983). The owner of a vehicle which is a total loss may recover as damages the cost of renting a substitute vehicle but only for a reasonable length of time — the period in which the owner becomes aware of the situation and secures a replacement therefor. Reynaud v. Leonard, 430 So.2d 314 (La.App. 3rd Cir.1983); Meshell v. Insurance Company of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982). The award of rental for 166 days is a clear abuse of the jury’s much discretion. La. C.C. art. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979); Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064 (La.App. 1st Cir.1983), writs denied, 433 So.2d 1056, 1057 (La.1983). Considering all of the facts and circumstances of this case, we believe a reasonable award to be a reimbursement of rental for a period of sixty days. Meshell, 416 So.2d at 1388.

Accordingly, the jury award of $2,500 is reduced to the sum of $900.

FRIVOLOUS APPEAL

Watson answered Morgan’s appeal and sought damages for frivolous appeal contending that the only reason Morgan appealed was to cause delay and inconvenience to her. This appeal was not frivolous because it resulted in a reduction of the award for rental of a replacement vehicle and a reversal and remand of the award for damages to Watson’s vehicle. Board of Commissioners of Port of New Orleans v. Louisiana Commission on Ethics for Public Employees, 416 So.2d 231 (La.App. 1st Cir.1982), writ denied, 421 So.2d 248 (La.1982). Watson’s claim for frivolous appeal damages is without merit.

DECREE

For the foregoing reasons, the judgment of the district court awarding rental for a substitute vehicle is reduced to the sum of $900 and the award of $3,500 for damages to Watson’s vehicle is reversed and this portion of the claim is remanded to the trial court to receive evidence on the issue of salvage value. The claim of Watson for frivolous appeal damages is dismissed. Morgan is to pay all costs of this appeal. Costs in the district court shall be determined in a final judgment on the merits of the claim for property damage.

AMENDED AND AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . Watson remarried on July 29, 1981. This suit was filed on December 28, 1981.

      . Morgan does not contest the reasonableness of the expert witness fee.

      . Specification of Trial Court Errors 3 and 4.

      . Specification of Jury Error 2.

      . Specification of Trial Court Errors 1 and 2 and Specification of Jury Error 1.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Keffal WHITTAKER.
    No. 83-KA-0902.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.
    Ossie B. Brown, Dist. Atty. by Joseph Lotwick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellant Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, LOTTINGER and EDWARDS, JJ.
   EDWARDS, Judge.

Keffal Whittaker, indicted on two counts of first degree murder, was tried before a jury and convicted on both counts of second degree murder in violation of LSA-R.S. 14:30.1 and sentenced on both counts to concurrent terms of mandatory life imprisonment without benefit of probation, parole or suspension of sentence. Alleging twenty assignments of error, defendant appeals his convictions and sentences.

Assignments of error 9, 10 and 18 were not briefed and are considered abandoned. Uniform Rules, Courts of Appeal 2-12.4. However, because we find merit in assignments of error nos. 13 and 14, necessitating reversal, we need not discuss the merits of defendant's other assignments.

On the morning of February 17, 1982, Cynthia Padgett and Patricia Canavan, victims of an apparent robbery from the night before, were found murdered in a utility room in the Supermarket Washateria on 5537 Maplewood Drive in Baton Rouge. The cash register was found open and the cash tray was found missing. The murder weapon was either a .357 or .38 caliber pistol.

Shortly thereafter, Ms. Canavan’s yellow Dodge Aspen, apparently used as the getaway car, was found abandoned in a graveled alley just off Choctaw Drive, about a quarter to a half mile from defendant’s residence. No identifiable fingerprints were found in either the washateria or the car, nor were the murder weapon, the cash tray or the keys to Ms. Canavan’s car ever recovered by the police.

On August 16 a confidential informant tipped the investigating detectives that Melvin Sterling, Darren Kent and Keffal Whittaker, the defendant, were involved in the murders. Sterling was arrested on August 17. See State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.1983), for the facts surrounding his involvement in the crime. An arrest warrant was issued and Whittaker was arrested at his home shortly after midnight on August 18, 1982.

The arresting officers testified at trial that on the night of his arrest Whittaker admitted to being in Canavan’s car on the night of the murders. According to the officers, he said he was walking home from his girlfriend’s house when Kent and Sterling, driving a car matching the description of Canavan’s, stopped to give him a lift home. He said they asked him to drive the car to his house. He said that all he knew about the murders was what he learned from the television reports later.

Darren Kent and Melvin Sterling were granted use and derivative use immunity by the district attorney and the attorney general and were subpoenaed to testify at defendant’s trial. However, when called to the stand, both invoked their privilege against self-incrimination and refused to answer any questions about the murders. Each was held in contempt of court.

In assignments of error nos. 13 and 14, defendant contends the trial judge erred in allowing into evidence an irrelevant, immaterial and highly prejudicial note allegedly written by defendant on January 13, 1983, in one of the holding cells at the courthouse while he was awaiting the hearing on one of the State’s motions to continue the trial.

State’s witness Sergeant Leon Denham, the officer in charge of courtroom security and responsible for transporting prisoners to and from the court’s holding cells during their appearances at court, testified that he retrieved the note, written on a torn piece of newspaper, from prisoner Robert Jones, after observing him put something in his sock. Denham took the note to Bill Sharp, one of the district attorney investigators in defendant’s case. Sharp testified that from photographs of Kent, Sterling and Whittaker, Jones identified Whittaker as the one who had given him the note and Kent as the person to whom he was to deliver it. At trial, however, Jones testified that he was handed the note by a person he knew only as “Nellie Nell” and was told to deliver it to, in his words, some “bright dude,” held in “Line one Downtown.” Jones was unable at trial to make a positive identification of the defendant as “Nellie Nell.”

The note is written in an almost illegible scrawl, but as best as can be transcribed, reads:

Keffal
Say man look here this Nelly Nel. Look be cool man don’t f_ with thim whitefolk. Be you [for?] for real man write man and let me know I know you will hold out but when you go to trial
don’t say inthing [any?] thing about if they ask you till thim you lie ok. We got them bicth [bitch] so will walk. It will just take time Nelly Nel. (punctuation supplied).

Urging the same bases for his objections at trial, defendant argues first that the State failed to establish defendant’s authorship of the note. Second, he argues that the State failed to establish any connection between the court appearance referred to in the note and the instant trial. Third, he contends that the note is irrelevant and therefore inadmissible because the State failed to state what material facts at issue the note tended to prove or disprove. Finally, he argues that any probative value the note may have had is outweighed by the prejudice the note created in the minds of the jury.

The State, on the other hand, argues that the note is relevant to show a eoverup of the defendant’s involvement in the crimes. The State’s interpretation is that the defendant was attempting to coax Kent to lie when called to testify at defendant’s trial.

To be admissible at trial, evidence must be relevant to material facts at issue. LSA-R.S. 15:435. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Even if relevant, the evidence should be excluded if it tends to confuse the jury or excite their emotions to the undue prejudice of the defendant. State v. Ludwig, 423 So.2d 1073, 1078 (La.1982).

The note is simply saddled with too many ambiguities in meaning to support any reasonable inference of any facts tending to establish defendant’s guilt as either a perpetrator or principal in the murders. See LSA-R.S. 14:24; 14:30.1. On its face, the note is susceptible to several interpretations. First, it is not at all clear whose trial the note refers to. It may refer to defendant’s own trial. Or, it may refer to the trial of the intended recipient, in which case the note, rather than incriminating the defendant, would represent merely a friend’s support and possibly ill-advised encouragement of perjury. Moreover, it is not clear whether or not defendant actually authored the note. It appears addressed to him rather than from him, although there was testimony that defendant was nicknamed Nellie Nell. Rather than supporting reasonable inferences of facts tending to establish defendant’s guilt, the note served only to confuse and prejudice the jury against the defendant. The trial judge therefore should have ruled the note inadmissible on the basis of either its irrelevance or its highly prejudicial nature.

At trial, the State strenuously relied upon the note, especially in its closing argument, as an admission of the defendant’s guilt. The State’s only other evidence, wholly circumstantial, tending to establish defendant’s involvement in the murders, is the proximity of the abandoned car to defendant’s residence and defendant’s alleged admission of driving the car on the night of the murders. We think the erroneous admission of this note into evidence substantially contributed to the verdict of guilty and was not, therefore, harmless error under LSA-C.Cr.P. art. 921.

Accordingly, we reverse the defendant’s convictions, vacate his sentences, and remand this case for a new trial.

REVERSED AND REMANDED.

       Another panel of this court remanded Sterling for a reopened hearing on the motion to suppress Sterling’s alleged voluntary confession because the State's evidence on the issue of probable cause to arrest was ambivalent and because the trial court incorrectly ruled a taped statement inadmissible at the hearing.


author: PONDER, Judge.

text:
    CITIZENS, ELECTORS & TAXPAYERS OF TANGIPAHOA PARISH v. Edward LAYRISSON, Sheriff of Tangipahoa, et al.
    No. 83 CA 0966.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 8, 1984.

      Byard Edwards, Jr., Ponchatoula, for plaintiff-appellee.
    Carl Cleveland, New Orleans, for J. Edward Layrisson.
    Gail Sheffield, Amite, for Tangipahoa Parish Police Jury.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, Tangipahoa Parish Sheriff Edward Layrisson, appealed the setting aside of the award of attorney’s fees in a previous judgment. Defendants, Tangipa-hoa Parish Police Jury and its individual members (hereinafter “Parish”), appealed the issuance of a preliminary injunction prohibiting the Parish from executing the provisions of a contract with the State Bond Commission which dedicated a portion of the Parish’s general revenue fund for the next 20 years, to cover the Parish’s share of the costs of construction of a new parish jail.

The issues are: (1) whether the Sheriff is entitled to an award of attorney’s fees; (2) whether the injunction was properly issued; and (3) whether the amount of plaintiffs’ bond was sufficient.

We affirm in part, reverse in part, and remand.

Many parishes of the state have in recent years faced the necessity of complying with Federal constitutional standards for jail facilities at a time when the financial resources were lacking. To help solve this dilemma, the legislature passed Acts 859 and 864 of 1981 and 679 and 707 of 1982, allowing the State to issue general obligation bonds and advance the money to the parishes, thirty percent of which is to be repaid over a period of twenty years. Six and one-half million dollars was allocated to Tangipahoa Parish. On October 12, 1982, the Parish by resolution agreed to set aside annually an amount not to exceed $254,157.00 to repay the Parish’s portion. The Parish signed a contract with the State Bond Commission on May 17, 1983, agreeing to the terms, and received one-half of the amount allocated.

Plaintiffs sued to enjoin the defendants from “dedicating, spending or appropriating any parish funds for the acquisition and construction of a new parish jail facility without the approval of a majority of qualified electors as set forth in LSA-R.S. 39:501, et seq.” and LSA Const. Art. 6, § 26. All defendants filed exceptions of no cause of action. The court sustained the sheriff’s exception but denied the Parish’s. The trial judge also awarded the sheriff $1,000.00 in attorney’s fees, on the stated ground of “abuse of process.” Subsequently, a motion for new trial on the issue of attorney’s fees was granted and the trial judge set aside the award of the fee. The sheriff appealed.

Plaintiffs contend that the issue was never properly raised in the trial court. The sheriff raised the issue in his memorandum supporting the exception of no cause of action and in oral argument but did not file a reconventional demand or a separate suit demanding the attorney’s fee or ask for them in the exception of no cause of action itself. However, plaintiffs did not object to the raising and argument of the issue and we therefore have the matter before us.

As a general rule, attorney’s fees are not allowed as an item of damages or costs except where authorized by statute or called for in a contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (La.1959). However, the common law doctrine of abuse of process has been recognized as an exception to the rule. Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3rd Cir.1980); Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App. 2nd Cir.1978); Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir.1977) writ denied 343 So.2d 201 (La.1977). The essential elements of the tort consist of: (1) an ulterior purpose; and (2) a willful act in use of the process not proper in the regular prosecution of the proceeding. Curtis, supra.

We find the essential elements have been met and an award of attorney’s fees for abuse of process was proper. Plaintiffs’ sole allegation against the sheriff was that the planned dedication of funds was “initiated, proposed and endorsed by Edward Layrisson, Sheriff of Tangipahoa Parish, who used his influence as Sheriff to solicit votes from the Tangipahoa Parish Police Jury for the passage of said dedication .... ” Plaintiffs’ claim rested upon a statute repealed six years previously and the petition failed to allege that' the sheriff’s acts of supporting and endorsing the fund dedication were illegal. Plaintiffs failed to offer any oral argument on the merits of the sheriff’s exception. We amend the judgment to reinstate the attorney’s fee of $1000.00.

The plaintiffs filed two supplemental and amending petitions, adding the allegations that the Parish’s proposed dedication of general revenue funds was a violation of LSA-R.S. 47:1803 and 1804 and “other statutory provisions of the law” and was unauthorized and illegal. After trial on the merits, the trial judge issued the requested preliminary injunction under LSA-R.S. 33:2922, which prohibits dedication of excess general fund revenues, when available, for more than ten years.

Appellants contend first that the trial judge erred in failing to dismiss plaintiffs’ suit on their exception of no cause of action. We have reviewed the pleadings and the trial judge’s opinion and find no merit in this contention.

Appellants contend the trial judge erred in applying LSA-R.S. 33:2922 because the enabling acts providing for the sale of the jail project bonds by the State and the reimbursement in part by the parish governing authorities create an exception to the usual restraints placed by general law.

The trial court found no conflict and we agree. The special enabling acts require the parish to reimburse the state thirty percent of the amounts advanced, by either “a cash match from the proceeds of local bond sales, from local millages, from other sources of cash; or a cash match from the sale of reimbursement bonds appropriated hereunder... Prior to the sale of any such reimbursement bonds, the parish governing authority shall enter into such agreements as required by the Louisiana Commission on Law Enforcement and Administration of Criminal Justice, the Commissioner of Administration, and the State Bond Commission to provide 30% reimbursement of bond debt.”

The language does not support appellants’ contention that it was intended to create an exception to the restraints of R.S. 33:2922. There are no specific words of exception. The act does not specifically grant the State Bond Commission and other authorities the power to force the Parish to finance its share of the project in a manner contrary to general law. The reimbursement contract makes no provision specifically directing the method of financing to be adopted by the Parish. Testimony established that the Commission did not concern itself with the particular method of financing used by the Parish or the source of reimbursement funds. We conclude that the Legislature intended for the parish governing authorities to determine their source of funds for reimbursement by reference to existing laws governing expenditures of public funds.

Appellants contend that if R.S. 33:2922 is applicable, the jail project expenditure should be considered a “statutory charge” or a “necessary and usual charge,” thus granting the expenditure priority in funding.

Appellants base their argument that the dedication is a “statutory charge” under R.S. 33:2922 upon LSA-R.S. 33:4715, which imposes upon parish governing authorities the duty to provide a “good and sufficient” courthouse and jail. They cite Penny v. Bowden, 199 So.2d 345 (La.App. 3rd Cir.1967), in which the court concluded that the duty to appropriate and deposit money into a police pension fund was a “statutory charge” under R.S. 33:2922, which must be budgeted as a yearly expense to be paid as first priority. However, the case can be distinguished in that the statute involved specified a determinable sum to be paid. LSA-R.S. 33:4715 imposes a general statutory duty upon parish authorities to provide a courthouse and jail but does not impose a specific requirement as to how the duty is to be performed. Amiss v. Dumas, 411 So.2d 1137 (La.App. 1st Cir.1982) also is to be distinguished; the holding was that between the Police Jury and the sheriff, the legal responsibility to provide jail facilities for parish prisoners is vested with the Police Jury.

The trial judge concluded that the jail project expenditure was neither a “statutory charge” nor a “necessary and usual charge” under 33:2922; that the expenditure was an attempted dedication of general fund excess revenues, and is illegal because “general revenue funds of a parish may not be obligated by its police jury as proposed in this instance.” We agree.

Under R.S. 33:2922, a proposed dedication of future revenues is invalid if: (1) the dedication of future excess revenues exceeds “the estimated excess of revenues over the statutory, necessary and usual charges of the year in which the contract or obligation is made;” or if (2) the contract or obligation has a term fixed for payment longer than ten years. Neither the reimbursement contract nor the dedication resolution of October 12, 1982, authorizing payment of future revenues due under the contract, state the length of the obligation’s term. However, testimony at trial established the life term of the bonds at twenty years.

The court made the factual finding that the Parish would be able to meet its 1983 budgetary requirements when withheld funds are ultimately received. It did not make an explicit determination whether the Parish would have sufficient excess funds to meet its annual obligation under the reimbursement contract. However, in light of the uncontested testimony that reimbursement would be spread over twenty years, we affirm the trial court’s judgment issuing a preliminary injunction prohibiting the execution of the contract, as planned by the Police Jury.

Appellants complain that the judgment rendered by the trial judge was “beyond the scope of the pleadings” in that the judge enjoined the execution of the contract itself and not just the particular method of financing the Parish’s obligation under the contract chosen by the Police Jury. We are of the opinion that the judgment does not in fact enjoin the Police Jury from fulfilling its reimbursement obligation under the contract, provided it chooses some method other than the planned dedication of future general fund revenues for a period exceeding 10 years.

Finally, appellants contend that the trial judge abused his discretion in fixing the plaintiffs’ bond at only $25,000.00. Security must be provided by an applicant for a preliminary injunction, unless specifically exempted by law. LSA-C.C.P. art. 3610. The purpose of the bond is to protect the defendant against all damages that he or she might sustain because of the injunction. However, the amount of the bond is subject to the court’s discretion. Robinson v. Morris, 272 So.2d 444 (La.App. 2nd Cir. 1973).

The testimony at hearing concerning the threat of losing the second appropriation of three and one-quarter million dollars established that the line of credit providing the amount would expire June 30, 1983, but could easily be made available to the Parish by the legislature in subsequent Capital Outlay Acts. Given the obvious concern of the legislature with helping local governments comply with Federal Court orders concerning jail facilities, the judge’s apparent conclusion that any loss of the future allocation would not be permanent, did not constitute an abuse of discretion.

However, appellants have correctly pointed out that the trial court, in assessing court costs against it, failed to comply with the provisions of LSA-R.S. 13:5112, which requires the court to assess the costs in a dollar amount. We remand to the trial court for setting of the costs and for further proceedings not inconsistent with this opinion.

Appellants’ remaining assertions of error have no merit.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Similar contracts have been signed by about 20 other parishes.

      . LSA-R.S. 39:501 to 504 were repealed by Acts 1977, No. 545, § 5, eff. Jan. 1, 1978.

      .LSA Const. Art. 6, § 26 grants to parish governing authorities the power to levy an annual ad valorem tax for general and specific purposes.

      . LSA-R.S. 47:1803 and 1804, as pertinent, require a parish governing authority to obtain the consent and approval of the State Bond Commission prior to borrowing money, incurring debt, issuing bonds or other evidences of debt, levying taxes or pledging uncollected taxes.

      . LSA-R.S. 33:2922 provides:
      A. The annual revenues of any political subdivision (which term shall mean those units of local government listed in Subsection 2 of Section 44 of Article VI of the Louisiana Constitution of 1974) shall be dedicated as follows: first, all statutory charges shall be paid from the respective funds upon which they are imposed; second, all charges for services rendered annually under time contracts; third, all necessary and usual charges provided for by ordinance or resolution. Any excess of revenue above such statutory, necessary and usual charges may be applied to the payments of amounts due and unpaid out of the revenues of former years. Any parish, municipal corporation, and any other political subdivision having the prior approval of the governing authority which created it may make in any year, contracts or other obligations dedicating in whole or in part the excess of annual revenues of subsequent years above such statutory, necessary and usual charges. No such contract or obligation shall have any longer term fixed for payment than ten years from the date of the contract or obligation. No dedication of future revenues shall be made which, alone or with other prior dedications in force, exceeds the estimated excess of revenues over the statutory, necessary and usual charges of the year in which the contract or obligation is made. This Section shall not be construed to prohibit any political subdivision from providing by ordinance or resolution for the expenditure of funds . derived from miscellaneous or contingent sources actually collected, subject to the dedication of such funds established by law.

      . LSA-R.S. 33:4715 provides:
      The police jury of each parish shall provide a good and sufficient court-house, with rooms for jurors, and a good and sufficient jail, at such place as they may deem most convenient for the parish at large, provided that when the seat of justice is established by law, they shall not have power to remove it.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Robert Lee GASERY.
    No. 83 KA 1052.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Dixie Brown, Asst. Dist. Atty., Houma, for State of La.
    Warren J. Daigle, Jr., Indigent Defenders Board, Houma, for Robert Lee Gasery.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Robert Lee Gasery, was indicted for the second degree murder of Floyd Howard on February 19, 1980, in violation of LSA-R.S. 14:30.1. Defendant pleaded not guilty and, after a jury trial, was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He appeals his conviction, alleging seven assignments of error.

FACTS:

On the evening of February 19, 1980, defendant was in the Coco Cabana Lounge in Gray, Louisiana. While there, defendant argued with the victim’s girlfriend and several other customers. Several patrons in the bar testified that they saw defendant brandishing a knife that night which he would open in the course of his repeated arguments. Following an argument with the bar owner outside the premises, defendant left and started walking down the highway. The victim and his girlfriend were sitting in her ear when defendant passed. When defendant made an insulting remark, the victim got out of the car and told defendant to leave. The men then began to fight. The girlfriend testified she heard a “click” and then saw defendant run away, followed by the victim. The victim was unable to catch defendant and returned to the car. When his girlfriend saw his bloody shirt, the victim stated that he had been stabbed by defendant. The victim, Howard, died that night.

Later that night, police officers arrested defendant at his cousin’s trailer home after she reported he was there. A bloody knife was found in defendant’s jacket.

ASSIGNMENT OF ERROR NUMBERS 1 THROUGH 7:

Defendant contends the trial court erred in overruling defendant’s objection to testimony by seven state witnesses identifying defendant as Robert Gasery. Defendant argues that this testimony was not relevant because it did not show that defendant committed or intended to commit the murder. The State contends the identification was relevant to show that the person named in the indictment was the defendant in this case and to indicate to the jury the person to whom each witness was referring.

All evidence which is relevant to a material issue, necessary to be known to explain a relevant fact, or which supports an inference raised by such a fact, is admissible, except as otherwise provided by the constitutions of the United States and Louisiana, or by law or rule of the Louisiana Supreme Court. See, LSA-R.S. 15:435, 441; State v. Ludwig, 423 So.2d 1073 (La. 1982). Furthermore, the trial court has great discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of discretion. State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983). Since the witnesses were testifying about what they saw before the murder the evidence was relevant and proper to show that the witnesses were talking about defendant, and to show defendant’s violent state of mind on the night the stabbing occurred.

The victim’s girlfriend identified defendant as the man who fought the victim seconds before he was stabbed. No one else was in the vicinity of the fight. In light of her testimony and the overwhelming evidence presented, we find no error.

These assignments of error are without merit.

The conviction and sentence are affirmed.

AFFIRMED.


author: SHORTESS, Judge. LANIER, J.,

text:
    STATE of Louisiana v. James Albert DRYER.
    No. 83 KA 1122.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      William M. Quin, Asst. Dist. Atty., Am-ite, for plaintiff-appellee.
    R. Judge Eames, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

James Albert Dryer (defendant) was charged by bill of information with the armed robbery of Nadine Adams at John’s Curb Market # 2 in Pontchatoula, Louisiana, a violation of La.R.S. 14:64. Defendant pled not guilty. After trial by a twelve-person jury, defendant was found guilty as charged. He was sentenced to serve twenty years with the Department of Corrections without benefit of probation, parole, or suspension of sentence. He has appealed and alleged two assignments of error.

On October 29, 1981, Nadine Adams was working the 11:00 p.m. to 7:00 a.m. shift at John’s Curb Market # 2. At approximately 12:04 a.m. on October 30, Adams was sitting in the office counting money, when she looked up and saw a shotgun come through the door. The assailant placed the gun, which Adams described as a double-barrel shotgun, about five inches from her head. He told her that this was a “stickup” and that he wanted her money. The robber took all the money she had in the office and asked her if there was any more. She indicated that there was some in the cash register. His accomplice, who was never apprehended, opened the cash register and removed the contents. Adams testified that a total of approximately $220.00 was taken, including $100.00 from the cash register. Three rolls of quarters, a roll of nickels and a roll of pennies were taken from the register. Adams testified that the robber wore blue jeans and a white pullover shirt and that she got a good look at him because he had no mask on and the robbery took about five minutes. She identified the defendant in a lineup on October 30, 1981, at the Ponchatoula Police Station. She subsequently identified the defendant in court as the man who robbed her with a shotgun on October 30. A shotgun was introduced by stipulation as a gun found between 1:00 a.m. and 9:00 a.m. on October 30 at the Chicken Shack Bar in Hammond. Adams also identified the shotgun as the gun used by defendant.

ASSIGNMENT OF ERROR NUMBER 1

The trial court erred in sustaining the state’s objection to questions directed to a material witness called to testify at defendant’s hearing on “Motion For New Trial” in relation to prejudicial conduct which occurred in the presence of jurors outside the courtroom which made it impossible for the defendant to obtain a fair trial.

After being found guilty as charged by an 11 to 1 vote of the jury, defendant retained new counsel who initially filed a motion for new trial. In connection therewith, a lengthy new trial hearing was conducted by the trial court over a period of many months. During the course of that hearing, counsel propounded the following question to Glenn Burge, who had served as foreman of the jury which convicted defendant: “Do you recall that two women Jurors became emotionally distraught and began to reveal details of robberies that had victimized members of their family?”

The State objected to the question on the grounds that La.R.S. 15:470 did not permit such an inquiry. The trial judge sustained the objection. Counsel laid absolutely no predicate before asking Burge this question. His whole cross-examination of Burge prior to that time concerned Burge’s acquaintance with John Bohning, the owner of John’s Curb Market, and the events surrounding an alleged incident which occurred at the coffeepot in the Grand Jury room on the morning of the trial after the jury had been selected. Burge testified he had no recollection of defendant entering the room on that morning to get coffee.

Later, during counsel’s examination of Arthur McDonald, the juror who voted not guilty, he was able to develop McDonald’s version of what apparently occurred on the morning when defendant entered the coffee room where several jurors were drinking coffee. McDonald testified that on the second day of the trial and after the jury was selected but before trial began, several jurors were in the Grand Jury room which had a set of double doors, both of which were open. There was a coffeepot on a table in the rear of the room where anyone could get complimentary coffee. McDonald said people were coming and going, getting coffee. He testified that defendant came into the room to get coffee. McDonald then made the following observation:

and I just got the feeling, you know, because I thought to myself that this man ain’t got a chance and the trial hadn’t even started yet, you know, they are just felt like — looked like they had a hostile feeling toward him, you know, they had told one of the bailiffs, what is he doing in here, you know, he is not supposed to be in here, to get him out and the bailiff come got him out.

Using his examination of Burge and McDonald, counsel now argues that La. R.S. 15:470 cannot prohibit him from developing evidence concerning alleged jury misconduct because the conduct complained of violated defendant’s constitutional right to a fair trial by an impartial jury. We disagree and find that the record falls woefully short of presenting a substantial claim that defendant’s rights were violated.

Pursuant to the Louisiana Jury Shield Law, La.R.S. 15:470, no petit juror is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify, or impeach any verdict found by the jury of which he was a member. However, the jury privilege of La. R.S. 15:470 is not absolute and must yield to a substantial showing that the defendant was deprived of a constitutional right, such as a fair trial, due process or cross-examination.- State v. Graham, 422 So.2d 123 (La.1982); State v. Gomez, 433 So.2d 230 (La.App. 1st Cir.1983), writs denied, 440 So.2d 730 (La.1983) and 441 So.2d 747 (La.1983).

The cases cited by defendant in support of this assignment are inapposite factually. In State v. Marchand, 362 So.2d 1090, 1094 (La.1978), the Supreme Court dealt with a bailiff’s communication to the foreman and another member of the jury that defense counsel’s objection prevented the judge from granting their request to have access to an alleged confession during deliberations. The court held that such communication deprived the accused of his constitutional and statutory right to an impartial jury verdict untainted by unauthorized communications received in contravention of statute or influenced by any consideration other than defendant’s innocence or guilt solely on the basis of the evidence properly brought before the jury.

In State v. Wisham, 371 So.2d 1151 (La.1979), the Supreme Court held that two jurors who allegedly viewed the arrest of a defense witness during a recess should have been permitted to testify at a motion for new trial concerning their observations. The trial judge refused to permit the defense to offer evidence to show that the jurors would not only testify that they observed the arrest but also that they told the other jurors and that it was discussed at length during jury deliberations. In remanding the case, the Supreme Court ordered the trial court to hear the evidence relative to viewing the arrest and informing the others of its occurrence. The Supreme Court characterized the conduct as “presumptively prejudicial.”

On remand, the trial judge permitted jurors also to testify that the conduct had no effect on their deliberations. In State v. Wisham, 384 So.2d 385, 387 (La.1980), a majority of the Supreme Court held that such testimony was impermissible, holding:

The State should not have been allowed to examine the jurors as to the effect the extraneous prejudicial information had on the jury deliberations. Testimony of this nature by the jurors would impeach their own verdict within the prohibition of La.R.S. 15:470. The policy behind this statute is to preserve the confidentiality of discussion among jurors in their deliberation, as well as the finality of jury verdicts. State v. Marchand, 362 So.2d 1090 (La.1978); State v. Abney, 347 So.2d 498 (La.1977); State v. Durr, 343 So.2d 1004 (La.1977).

Defense counsel characterizes in brief the coffee incident in the Grand Jury room as demonstrating the jurors’ attitude toward defendant even before trial began as they “immediately began to demonstrate hostility toward the defendant, to denigrate him and to view his presence as offensive and provocative.” We have heretofore quoted juror McDonald’s observations about the incident, and that is the only evidence in the record concerning the coffee incident. There was nothing improper in the jurors’ desire to be separated from defendant. There should be absolutely no opportunity for any sort of social contact between jurors and a defendant during trial. We find that it was proper conduct for the jurors to seek the bailiff’s assistance to have defendant removed from the coffee room prior to commencement of the trial.

Neither does this assignment present a valid due process argument. Defendant’s citation of Durr v. Cook, 589 F.2d 891 (5th Cir.1979), is factually inapposite. Therein, the jury foreman conducted certain extraneous experiments concerning how the alleged crime might have occurred and then reported the results to his fellow jurors. The Fifth Circuit held that Durr had presented a substantia] claim that his rights may have been violated and held that the foreman must be allowed to testify as to the events in question.

Here, defendant has no proof to support his improper jury conduct allegations. Jur- or Burge’s testimony did not help defendant. Juror McDonald gave only his opinion. We also note that Juror Ruby Johnson specifically denied harboring any ill will or bad feelings toward defendant’s wife, notwithstanding defendant’s allegations in his motion for new trial that Johnson had demonstrated hostile feelings toward her in the past.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

“The trial court erred in denying defendant a new trial.”

Defendant bases this assignment on five theories:

(1) the verdict was contrary to the law and the evidence because the State failed to prove he was armed with a dangerous weapon, which is an element of the crime of armed robbery;
(2) the lineup procedure was improperly constituted and highly suggestive;
(3) the jurors chosen testified falsely on voir dire when they swore they were unbiased and would accord defendant the presumption of innocence;
(4) during closing arguments, the prosecutor made a statement asking the jurors to judge the case from the victim’s perspective; and
(5) he had inadequate counsel.

1. State failed to prove defendant was armed with a dangerous weapon.

The applicable standard of review when a defendant argues that the State failed to prove an element of the crime is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proved beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Nadine Adams, when shown the shotgun, recognized it as the gun which was pointed at her head during the robbery. She said she recognized it because it was old, had a double barrel with two triggers, and was dark around the handle. Her testimony could fully support a finding that defendant was armed with a dangerous weapon during the robbery.

2. Unduly suggestive lineup procedure.

In determining the constitutionality of an out-of-court identification, several factors must be considered. In State v. Nathan, 444 So.2d 231, 235-236 (La.App. 1st Cir.1983), this court stated:

In determining the constitutionality of an out-of-court identification, several factors must be considered. First, the suggestiveness of the identification procedure must be evaluated. State v. Guillot, 353 So.2d 1005 (La.1977). A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. State v. Robinson, 386 So.2d 1374 (La.1980). In reviewing the procedure, the trial court must look at the totality of the circumstances surrounding the identification. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).
Even if an identification is suggestive, it will not result in reversal of a conviction if it is demonstrated that the identification was reliable. The factors to be used in determining reliability include (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 her prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra.

Applying the Manson factors to the facts presented here, Adams testified that defendant had no mask on; that she got a good look at his face while he was standing very close to her holding the shotgun within five inches of her head; and that the robbery took about five minutes. The description Adams gave to Officer Michael Barron, Pontchatoula Police Department, shortly after the occurrence was that defendant was 5'9" tall, weighed 155-165 pounds, had short hair, was wearing a white pullover shirt and jeans, and had a skinny face and a mustache. The description given was so good that Barron remembered an incident which occurred earlier that same night when he had stopped to help a similar-looking man who had run out of gas. It was this description plus this earlier meeting which helped the police apprehend defendant so quickly. Additionally, the lineup confrontation occurred the same day as the robbery. Adams, on cross-examination, never waivered from her identification. She was positive that defendant was the robber and said she remembered his eyes. Applying the Manson factors, we find that both the out-of-court and in-court identifications were reliable.

Our examination of the photograph taken of lineup No. 2 convinces us that there was sufficient resemblance between the physical characteristics and features of the persons in the lineup so that Adams’ attention was not focused on defendant. There was some difference in features but no undue suggestion occurred in the lineup.

3. False juror testimony on voir dire.

We have discussed this contention in detail in treating assignment of error number 1.

4. Improper closing argument by the State.

The assistant district attorney made the following observation:

Now, you have to put yourself in the position of these people and if you are the victim of a robbery and someone is holding a gun on you for a period of five minutes, do you not believe that that gun and that that face will indelibly be printed in your mind for many, many, many long times to come.

No objection to this comment was made by defense counsel, and the trial court did not make any admonishments. Closing arguments must be confined to admitted evidence, the lack of evidence and conclusions of fact that may be drawn therefrom, and the law applicable to the case. See La.C. Cr.P. art. 774. The statement made by the State’s attorney was made during his argument on Adams’ credibility. The point he was making was that if a gun is held on someone for five minutes that the face of the person and the gun will be indelibly marked on the victim’s mind. We do not find this statement to be so unduly inflammatory or misleading as to deny defendant a fair trial before an impartial jury. While the statement may have been more artfully phrased, it was not designed to inflame or mislead the jury because Adams testified that defendant held a gun on her for about five minutes and that she was able to identify him and the gun because of the proximity to her and the time interval. Even if we were to consider this as improper argument (which we do not), it is most unlikely that these comments influenced the jury or contributed to its verdict. State v. Carthan, 377 So.2d 308 (La.1979). A resort to personal experience goes beyond the proper scope of argument. See La.C.Cr.P. art. 774. However, before a case will be reversed on the grounds of improper argument, the court must be convinced that the remarks influenced the jury and contributed to the verdict. State v. Barrow, 410 So.2d 1070 (La.1982).

5.Inadequate counsel.

Our careful examination of this entire record shows that defendant was adequately represented at the trial stage. We note that former counsel was interrogated extensively by appellate counsel during the motion for new trial. He answered all questions candidly and completely, and he gave a complete explanation as to all the strategy moves he made during the course of the trial. The right to counsel guaranteed by the U.S. and State constitutions is of course a fundamental right, guaranteeing adequate counsel, not perfect counsel. Hayes v. Maggio, 699 F.2d 198 (5th Cir.1983); State v. Felde, 422 So.2d 370 (La.1982). Defendant had adequate counsel.

This assignment of error is without merit as to any of its five theories.

CONCLUSION

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

AFFIRMED.

LANIER, J.,

concurs, disagreeing with the treatment of assignment of error # 1.


text:
    William M. HATCHETT v. Margarita HATCHETT.
    No. 83 CA 1165.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      William H. Cooper, Baton Rouge, for plaintiff-appellee.
    Frederick A. Duhy, Jr., Baton Rouge, for defendant-appellant.
   WATKINS, Judge.

This is a child custody case. The parents stipulated to joint custody but were unable to agree on a plan of implementation. After a hearing, the trial court ordered joint custody in accordance with a plan of implementation submitted by the father. From this judgment, the mother appeals.

FACTS:

William and Margarita Hatchett were divorced by judgment on July 29, 1982. The judgment of divorce continued in effect the custody portion of the judgment of separation which awarded custody of the two minor children of the marriage, James Eric and Jason Michael (now five and six years of age) to Mrs. Hatchett subject to visitation by Mr. Hatchett.

On February 4, 1983, Mr. Hatchett filed a petition seeking joint custody of the children. Shortly thereafter, Mr. and Mrs. Hatchett submitted a stipulation in which they agreed to joint custody. Pursuant to the stipulation, the trial court ordered the parties to submit a plan of implementation for joint custody through the Family Counseling Service and further ordered that if the parties were unable to agree on a plan of implementation a hearing would be held after which the court would determine the plan. The order further provided that the children were not to be removed from the state without the consent of the court or agreement of the parties in writing.

On April 27, 1983, Mr. Hatchett filed an ex parte motion requesting provisional custody of the children. Attached to the motion was an affidavit of Mr. Hatchett alleging that Mrs. Hatchett intended to remove the children from the state. The court ordered that the children be placed in the custody of Mr. Hatchett and set a hearing on May 5, 1983. On the date set for the hearing, the matter was passed over by joint stipulation of counsel.

The parties' were unable to agree on a plan of implementation of joint custody and each submitted a plan to the trial court. The court ordered a hearing which was held on June 1, 1983. After the hearing, the court ordered joint custody in accordance with the plan submitted by Mr. Hatch-ett. In addition, the court ordered that Mrs. Hatchett not remove the children from the state without the written consent of Mr. Hatchett or the court and that Mrs. Hatchett post a bond in the amount of $5,000.00 to protect Mr. Hatchett in the event of her failure to comply with the joint custody plan.

ISSUES:

In this appeal, Mrs. Hatchett contends that the trial court erred in: (1) entering a joint custody order which in fact gave the father permanent and exclusive custody of the children and deprived her of any meaningful visitation; (2) issuing an ex parte order modifying an existing custody order; (3) denying her visitation rights unless she posted a $5,000.00 bond and (4) issuing a custody order prohibiting her from removing the children from the state.

THE JOINT CUSTODY ORDER:

Mrs. Hatchett contends that the. trial court abused its discretion by entering a joint custody order which in effect gave Mr. Hatchett permanent and exclusive custody of the children and deprived her of any meaningful visitation.

Civil Code Article 157 provides that in all cases of separation and divorce and change of custody after an original award, permanent custody shall be awarded in accordance with Article 146. Under Article 146 the paramount consideration is the best interest of the child. The trial court’s discretion in custody matters is entitled to great weight and should not be disturbed unless it amounts to a clear abuse of discretion. Colley v. Colley, 435 So.2d 1141 (La.App.1st Cir.1983).

Inasmuch as the parties agreed by stipulation to joint custody of the children, the sole issue before the trial court was the plan of implementation of joint custody. Paragraph D. of Article 146 provides that in making an award of joint custody, the court shall consider, among other things, the factors enumerated in Paragraph C.(2). Among the factors listed in Paragraph C.(2) are:

“(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.”

At the hearing on the plan of implementation, Mrs. Phyllis Lefeaux, the counselor with Family Counseling Service who attempted to work with the parties in formulating a plan of implementation testified as the court’s witness. She testified that while Mr. Hatchett showed a willingness to negotiate, Mrs. Hatchett showed great unwillingness to work with Mr. Hatchett in formulating a plan. She further testified that at the counseling sessions, Mrs. Hatch-ett stated that she intended to take the children out of the state in order to deny Mr. Hatchett access to them. This testimony was corroborated by Mrs. Hatchett’s next door neighbor who testified that Mrs. Hatchett expressed the same intentions to her.

The testimony further showed that Mr. Hatchett is now remarried and resides in New Orleans. Mrs. Hatchett has continued to reside in the family home in Baton Rouge. The two children are now five and six years of age and the oldest is attending school.

Although the trial judge did not assign reasons for judgment, he obviously concluded that the best interest of the children would be served by awarding joint custody in accordance with the plan submitted by Mr, Hatchett. In light of the inability of the parties to agree on a plan of implementation, the distance between the residences of the parties, and the ages of the children, we cannot say that the trial court abused its great discretion in ordering joint custody in accordance with the plan submitted by Mr. Hatchett.

We note that, contrary to Mrs. Hatch-ett’s contention, the joint custody order did not give Mr. Hatchett exclusive and permanent custody nor did it deprive her of any meaningful visitation. Paragraph D. of Article 146 provides: “for purposes of this Article, ‘joint custody’ shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage.” (emphasis added) The plan submitted by Mr. Hatchett provided that the children would physically reside with him during the school year and with Mrs. Hatchett during the summer months. The plan further provided that the non-residential parent would have physical access to the children on the first and fourth weekend of each month and that physical custody would be alternated on holidays. Further, the order is not permanent since Paragraph E. of Article 146 authorizes the court, on its own motion or on motion of the parties, to modify or terminate the plan of implementation.

THE EX PARTE ORDER:

Mrs. Hatchett contends that the trial court erred in issuing an ex parte order modifying an existing custody order. The order was signed by the trial court on April 27, 1983 without notice to Mrs. Hatchett or a hearing and was based on the affidavit of Mr. Hatchett in which he alleged that Mrs. Hatchett was about to leave the state with the children. The trial court set a hearing on the matter for May 5, 1983. On the date of the hearing, the matter was reassigned to June 1, 1983, by consent of the parties.

We recognize that an ex parte custody order granted by a trial judge without notice, service of pleadings, and without affording a hearing to the parent having custody of the child is null and without effect. State, In Interest of Thompson, 372 So.2d 1255 (La.App.3d Cir.1979); Saizan v. Saizan, 311 So.2d 281 (La.App.1st Cir.1974). However, the June 1 hearing dealt with the plan of implementation of joint custody. After that hearing the court entered the order which forms the basis of this appeal. We therefore conclude that, because of the subsequent hearing and order, the issue of the validity of the ex parte order was rendered moot.

CONDITIONS ON CUSTODY:

Mrs. Hatchett also contends that the trial court erred in conditioning her joint custody rights on the requirement that she post a bond in the amount of $5,000.00 and refrain from taking the children out of the state without the consent of the court or Mr. Hatchett.

Although restrictions on custody and court supervision of custody should not be employed except in unusual circumstances, the court may order such if the circumstances require them. Le Bouef v. Fontenot, 390 So.2d 266 (La.App.3d Cir.1980). In Griffin v. Griffin, 424 So.2d 1228 (La.App.1st Cir.1982), this court stated:

“A review of the case law reveals the trial court has the discretion to allow or to disallow the child’s removal from the jurisdiction of the court. The standard when making such a decision is the same used in custody matters in general, i.e., ‘the best interest of the child.’ ” (citations omitted) 424 So.2d at 1231

The trial court obviously concluded that, because of Mrs. Hatchett’s threats to remove the children from the state in order to deny Mr. Hatchett visitation, a condition limiting her from removing the children was necessary to insure the success of the joint custody plan. In light of the mandate of Paragraph D. of Article 146 that the physical care and' custody of the children shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parties and the circumstances presented in this ease, we conclude that the trial court did not abuse its discretion in prohibiting Mrs. Hatchett from removing the children from the state without the consent of the court or Mr. Hatchett.

However, we conclude that the trial court did abuse its discretion in ordering that Mrs. Hatchett post a $5,000.00 bond in order to exercise her rights under the joint custody plan. The judgment of the trial court stated that the purpose of the bond was to protect Mr. Hatchett in the event of Mrs. Hatchett’s failure to comply with the joint custody plan. While the condition may accomplish this purpose, we fail to see how the best interest of the children would be served by requiring the mother to post a bond in order to exercise her rights under the joint custody plan.

CONCLUSION:

For the foregoing reasons, the portion of the judgment of the trial court requiring Margarita Hatchett to maintain a bond in the amount of $5,000.00 is reversed. In all other respects the judgment is affirmed. Costs of this appeal are assessed in equal amounts against both parties.

AFFIRMED.


author: CRAIN, Judge.

text:
    Diana McGuinness STEVENS v. Perry L. STEVENS.
    No. 83 CA 1177.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Robert W. Tillery, Hammond, for plaintiff-appellant.
    Ron Macaluso, Hammond, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in Tangipahoa Parish awarding custody of the minor child, Melissa Stevens, to her father, Perry Stevens, and ordering the mother, Diana McGuinness Stevens Wainwright (Diana McGuinness), to pay child support.

FACTS

Diana McGuinness and Perry Stevens were legally divorced by judgment signed May 7, 1982, in a proceeding entitled “Diana M. Stevens v. Perry L. Stevens” in Tangipahoa Parish (Tangipahoa Parish suit). ■ At that time, custody of 6-year-old Melissa Stevens, the only child of the marriage, was granted to the mother, Diana McGuinness.

Diana McGuinness subsequently married David Wainwright and Melissa lived with them for a period of 11 months prior to the filing of these proceedings. During that time, Perry Stevens exercised his visitation rights, as did members of his family, including his mother, Margaret Stevens.

In early April 1983, Margaret Stevens, with whom Melissa had spent the night, noticed signs of sexual abuse of the child while bathing her. Margaret Stevens related her suspicions to a friend who notified the Sheriff’s Office to investigate the possibility of sexual abuse.

On April 11, 1982, a medical examination made by Dr. Merlin Allen supported the allegation of sexual abuse. Custody of the child was then given by the court to Margaret Stevens pending an investigation by the Department of Health and Human Resources (Department). The investigation revealed that the child had been sexually abused by her stepfather, David Wainwright.

LIVINGSTON PARISH JUVENILE PROCEEDING

A 72-hour hearing was held, pursuant to La.C.J.P. art. 38, and Melissa was placed in the custody of the State prior to adjudication. La.R.S. 14:403(G)(7), La.C.J.P. art. 40. The District Attorney in Livingston Parish subsequently filed a petition requesting an adjudication that Melissa was “a child in need of care”. See La.R.S. 14:403(B)(3) and (G)(9), La.C.J.P. arts. 13(14)(a), 45. On May 13, 1983, Diana McGuinness filed a petition for custody in the juvenile proceeding. A hearing was set and held on June 13-14, 1983.

TANGIPAHOA PARISH SUIT

On April 20, 1983, Perry Stevens filed a petition for custody in the Tangipahoa Parish suit. It was stipulated in the Livingston Parish juvenile proceeding that the evidence taken in that hearing would be introduced without objection in the Tangi-pahoa Parish suit and judgment would be rendered in both matters.

JUDGMENTS OF LOWER COURTS

Judgments were rendered in both suits on June 14, 1983. The judgment in the Tangipahoa Parish suit, signed June 24, 1983, granted permanent care, custody and control of the minor child, Melissa, to her father, Perry Stevens. Visitation privileges were granted to Diana McGuinness to be supervised by the Department. Diana McGuinness was further ordered to pay Perry Stevens $120 per month child support.

The judgment of disposition in the Livingston Parish juvenile proceeding, signed July 5, 1983, contained the same provisions as the Tangipahoa Parish judgment and, in addition, contained a provision relieving the Department “of any further obligation and/or responsibility in connection with the protective services and/or foster home care.” We assume from this language and from the fact that Perry Stevens was awarded custody- of the child that the trial judge concluded that Melissa was not a “child in need of care”. See La.C.J.P. arts. 73, 76. We note this fact just for the record and since neither party appeals that determination, we affirm that judgment in 449 So.2d 633.

Diana McGuinness appeals both judgments insofar as each awards sole custody to Perry Stevens. She alleges that the requirements of La.C.C. arts. 146 and 157, in particular, the “best interests of the child” test, were not followed by the trial court. She also argues that the burden of proof required to change custody was not sustained and the presumption in favor of joint custody not rebutted. We consider these questions in this proceeding.

CHANGE OF CUSTODY

The versions of La.C.C. arts. 157 and 146 in effect at the time this custody determination was made, provided in pertinent part as follows:

Art. 157.
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.
Art. 146.
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 non-custodial 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.

The best interest of the child is the sole criterion in determining when a change in custody is appropriate. Johnston v. McCullough, 410 So.2d 1105 (La.1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Faust v. Faust, 421 So.2d 428 (La. App. 1st Cir.1982). The standard of appellate review in child custody cases was stated by the Louisiana Supreme Court in Bordelon, 390 So.2d at 1329, as follows:

[T]he 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”, (citations omitted)

After hearing the testimony in this case and examining the home study reports made by the Department in both the homes of Diana McGuinness and Perry Stevens, the trial judge concluded that it was in the best interest of the child, Melissa, to live with her father, for the following reasons:

It is the opinion of the Court that the welfare of Melissa would best be served by having her live with her father, Perry Stevens. The fact that she would be living in the same apartment she lived in since her birth, and would be staying in the same room that she has lived in since birth, would give her some feeling of security of stability the Court feels that she needs at this time. Furthermore, living with her father may overcome some of the damage done to her psychologically by the step-father.

Also relevant is the fact that Perry Stevens has recently married and appears to be able to provide a secure family unit for Melissa at this time. On the other hand, Diana McGuinness presently lives alone with her youngest child, born of the marriage between her and Wainwright. (Presumably, either Wainwright or his family will be granted visitation rights for this child at some point in the future). Additionally, Diana McGuinness has immediate plans to move to New York should she regain custody.

Our review of the record reveals that the conclusions reached by the trial judge were not clearly wrong. Perry Stevens bore his burden of proof that a change in custody would be in the child’s best interest; and consequently, the trial judge did not abuse his discretion in granting custody to the natural father.

JOINT CUSTODY

Diana McGuinness contends that the trial court erred in not making an award of joint custody as provided for in La.C.C. art. 146.

At the time custody was awarded to Perry Stevens, La.C.C. art. 146 provided, 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.

Obviously, the trial judge felt that joint custody in this case was not in the best interest of the child. While there is a presumption that joint custody is in the best interest of the child, it is a rebuttable presumption that, in our opinion, was overcome in this case. We have previously found sexual abuse of a minor child by the stepfather a sufficient basis for a trial judge’s finding that joint custody was not in the best interest of the child. Steagall v. Steagall, 442 So.2d 732 (La.App. 1st Cir.1983).

For the above reasons, the judgment of the trial court is affirmed. All costs are to be paid by the appellant.

AFFIRMED.

      . It is unclear from the record whether the Wainwright’s actual domicile was in Tangipa-hoa or Livingston Parish. In appellant’s brief, she lists Tangipahoa Parish as their domicile; however, in parts of the record their home address was listed as being in the town of Albany, Livingston Parish.

      . Wainwright eventually admitted to the sexual abuse of Melissa. He pled guilty to indecent behavior with a juvenile and was given a five-year suspended sentence.

      . We assume that Melissa was residing in Livingston Parish along with her mother and stepfather when the sexual abuse occurred, since the juvenile proceeding was brought in that parish. (See footnote 1).


text:
    STATE In the INTEREST OF Melissa STEVENS.
    No. 83 CJ 1148.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Nita R. Gorrell, Hammond, for defendant Diana Wainwright (appellant).
    Ron S. Macaluso, Hammond, for defendant Perry Stevens (appellee).
    Before SHORTESS, CRAIN, JJ. LANIER and
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in Livingston Parish in a juvenile proceeding, which awarded custody of the minor child, Melissa Stevens, to her father, Perry Stevens, and ordered the mother, Diana McGuinness, to pay child support.

A complete factual summary and analysis of this appeal is contained in our opinion in a related suit, Stevens v. Stevens, 449 So.2d 629. For the reasons assigned in that opinion, we affirm the judgment of the trial court in this appeal. All costs are to be paid by the appellant.

AFFIRMED.