author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Charles E. JENKINS.
    No. K83-1163.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      Dennis R. Whalen, Baton Rouge, for defendant-relator.
    Leonard Knapp, Jr., Dist. Atty., Terry J. Manuel, and Gemine Mailhes, Asst. Dist. Attys., Lake Charles, for plaintiff-respondent.
    Before DOMENGEAUX, C.J., and GUI-DRY and DOUCET, JJ.
   GUIDRY, Judge.

The defendant, Charles E. Jenkins, was charged with two counts of possession of marijuana, a violation of LSA-R.S. 40:966(C). On August 23, 1983, the defendant, after “Boykinization”, pled guilty to the charges. The trial court sentenced the defendant to pay a fine of $2,000.00 on each count plus court costs, or in default thereof to serve one year in the parish jail on each count. In addition, the defendant was sentenced to serve thirty days in the parish jail on each count, with the sentences to run consecutively. The defendant filed a motion to correct an illegal sentence. The trial court granted the motion, noting that the fines imposed and the jail sentence in default of payment exceeded the maximum penalty allowed by LSA-R.S. 40:966(D). The trial court resentenced the defendant to pay a fine of $500.00 on each count, or in default thereof to serve fifteen days in the parish jail. The trial court further sentenced the defendant to serve five months in the parish jail on each count, such sentences to run consecutively.

At the resentencing hearing, the defendant objected to the imposition of greater jail terms than those originally imposed. Defendant’s objection was overruled. Defendant thereafter filed a writ application with this court. We granted the writ and issued a stay order on December 23, 1983, ordering the defendant released on his own recognizance until the issue could be properly presented. On January 4, 1984, this court ordered the writ and previously filed appeals (the same grounds were alleged) consolidated.

On appeal, the defendant makes the following assignments of error:

(1) The trial court erred in setting aside the original thirty day jail sentences and imposing sentences of five months on each count.
(2) The trial court erred in considering a prior conviction of possession of marijuana in determining the sentence to be imposed.

CORRECTION OF THE ILLEGAL SENTENCES

The defendant was charged by bills of information with two counts of possession of marijuana, a violation of LSA-R.S. 40:966. The bills did not contain any charge that the defendant had been previously convicted of the offense. Thus the State was prohibited from prosecuting the defendant as a multiple offender. State v. Cannon, 409 So.2d 568 (La.1982). The penalty provision for a first conviction of possession of marijuana is found in LSA-R.S. 40:966(D)(1), which states that upon a first conviction, an offender shall be fined not more than $500.00, and imprisoned in the parish jail for not more than six months, or both. The sentence originally imposed are clearly illegal, as each assessed a fine of $2,000.00.

LSA-C.Cr.P. Art. 882 provides:

“An illegal sentence may be corrected at any time by the court that imposed the sentence.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.”

The trial court correctly set aside the original illegal sentences.

The defendant contends that the trial court erred in setting aside both the jail terms and the fines. He asserts that in correcting an illegal sentence, the trial judge is only authorized to correct that portion of the sentence which exceeds the statutory maximum. He urges that the trial court was authorized to reduce the fine, but that the two thirty-day jail terms, being within the statutory limit, could not be disturbed. This contention is without merit.

A sentence is “... the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt.” LSA-C.Cr.P. Art. 871. The penalties imposed on the defendant herein consisted of a jail term and a fine. The two sanctions comprise a single sentence. In State v. Johnson, 220 La. 64, 55 So.2d 782 (1951), the Supreme Court stated:

“In any criminal case it is the mandatory duty of the district judge upon conviction of a defendant to impose a sentence authorized or directed by law, and, if he does not impose a sentence authorized or directed by law, the sentence is illegal, and the case is in the same condition as if no sentence at all has been imposed, and it must be remanded to the district court so that the judge may impose a legal sentence.”

The foregoing language makes clear that when a sentence is found to be illegal, the entire sentence is vacated. Thus, the trial court was correct in vacating both the jail terms and the fines imposed on original sentencing.

Although the trial court was clearly authorized to set aside both the fines and the jail sentences and to reimpose legal sentences, his discretion in resentencing the defendant is not unbridled. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court considered the constitutional limits on the scope of the authority of a trial court to impose a heavier sentence upon a criminal defendant when an original sentence is set aside.

In Pearce, the court concluded that neither the double jeopardy provision nor the equal protection clause prohibits the trial court from imposing a more severe sentence upon reconviction. However, the court did find that the due process clause protects a criminal defendant from receiving a harsher sentence upon reconviction as a penalty for exercising his right to attack the original conviction. The court stated:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.20
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (footnote omitted)

See also, State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971).

In our view, the foregoing principles have equal application to situations wherein only the original sentence, and not the underlying conviction, is successfully attacked. A defendant clearly has the right to have an illegal sentence set aside. A defendant seeking to exercise his right should not be saddled with apprehension that the new sentence, although within statutory limits, will be more severe.

Having determined that the principles of North Carolina v. Pearce, supra, are applicable to resentencing after an illegal sentence is set aside, we must next determine whether the sentence imposed by the trial judge in the instant case is a harsher penalty than that originally imposed. The original sentences consisted of a thirty day jail term and a $2,000.00 fine on each count, the jail terms to be served consecutively. Thus, the total penalty was sixty days in jail and $4,000.00 in fines. In resentencing the defendant, the trial judge reduced the fine to the statutory maximum of $500.00 on each count, but increased the jail term to five months on each count, such terms to run consecutively. The new sentence therefore represented a reduction in fines from $4,000.00 to $1,000.00 and an increase in jail terms from sixty days to ten months.

We conclude that the penalty imposed by the trial court upon resentencing is more severe than that originally imposed. The reduction in fines to a maximum of $500.00 on each count was mandated by statute. It is nigh impossible to determine with any degree of certainty a period of additional confinement which would offset the decrease in fines, such that the two sentences would be equal in severity. This would involve the arbitrary and purely subjective process of placing a monetary value on the defendant’s deprivation of liberty. Nevertheless, we find that the significant increase in the defendant’s jail terms is far more drastic than the concomitant reduction in fines. The result is a penalty which is harsher than that originally imposed. The record in this matter, and in particular the court’s reasons for imposing sentence, contain no justification for the harsher sentence as required by North Carolina v. Pearce, supra. We therefore conclude that the matter should be remanded for resen-tencing.

In light of our decision to remand this matter for resentencing, it is unnecessary to reach the issue raised by the defendant’s second assignment of error.

For the above and foregoing reasons, the writ heretofore granted is made peremptory, and the sentences imposed are set aside. This matter is remanded to the trial court for resentencing in accordance with the views expressed herein.

WRIT GRANTED AND MADE PEREMPTORY.

SENTENCES VACATED AND MATTER REMANDED FOR RESENTENC-ING.

      . We this day render separate decrees in the consolidated appeals which bear our docket numbers CR83-1067 and CR83-1068. See 451 So.2d 1146.

      . The defendant also makes a third assignment of error urging that the trial court erred in fixing the defendant’s bond pending appeal at an excessive amount. This issue will not be considered. Our order of December 23, 1983, ordering the defendant released on his own recognizance pending appeal, has rendered this issue moot.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Charles E. JENKINS.
    Nos. CR83-1067, CR83-1068.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.
    Dennis R. Whalen, Baton Rouge, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty. and Ger-nine Mailhes, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, C.J., and GUI-DRY and DOUCET, JJ.
   GUIDRY, Judge.

For the reasons assigned in the matter entitled State of Louisiana v. Jenkins, 451 So.2d 1142 (La.App. 3rd Cir.1984), our docket number K83-1163, the sentence imposed is vacated and this matter is remanded to the trial court for resentencing in accordance with the views expressed.

SENTENCE VACATED AND MATTER REMANDED FOR RESENTENCING.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Alvin PERKINS.
    No. KA-0619.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 1984.

      Dwight Doskey, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., Allison Gosse-lin, Law Clerk, New Orleans, for appellee.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

A unanimous twelve person jury found defendant guilty as charged of armed robbery, a violation of La.R.S. 14:64. Defendant now appeals his conviction specifying one assignment of error, viz: “The trial court erred in denying the motion to suppress the evidence and the alleged oral confession.”

We reviewed the record to determine the merits of defendant’s assignment of error. In accordance with Art. 1 Sec. 19 of the Louisiana Constitution of 1974 and La.C. Cr.P. Art. 920(2), we also reviewed the record for any errors discoverable by a mere inspection of the pleadings and proceedings. Additionally, we reviewed the trial record to determine the sufficiency of the evidence.

We found no error warranting reversal of defendant’s conviction. We, therefore, affirm defendant’s conviction and sentence.

ERRORS PATENT

We reviewed the record for any errors discoverable by an inspection of the pleadings and proceedings and found one. The trial judge did not state for the record that defendant’s sentence must be served without benefit of parole, probation or suspension of sentence. See La.R.S. 14:64. We, therefore, amend defendant’s sentence to conform with La.R.S. 14:64. See: State v. Telsee, 425 So.2d 1251 (La.1983), and State v. McCoy, 450 So.2d 690, No. KA-1632 (La.App. 4th Cir. May 10, 1984), footnote one.

SUFFICIENCY OF THE EVIDENCE

Armed robbery is defined as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64.

The trial evidence established that the defendant, accompanied by a co-perpetrator, stole jewelry and money from three employees of a Zales Jewelry store through the use of threats and intimidation while armed with handguns. All three employees positively identified defendant as one of the robbers. No evidence contradicted the testimony of the employees, or successfully challenged their ability to positively identify the robbers, particularly defendant. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

After viewing the evidence in this case in the light most favorable to the prosecution, we find that any rational trier of fact could have found that every element of armed robbery was proven beyond a reasonable doubt. This being the standard for determining the sufficiency of the evidence, we find the evidence in this ease sufficient to sustain defendant’s conviction. Cf. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred by denying his motion to suppress evidence and alleged inculpatory statement. Police seized the evidence, without benefit of a warrant, when they arrested defendant and his co-perpetrator at his co-perpetrator’s apartment. Subsequent to his arrest, defendant made a statement to the arresting officers in their office at Police Headquarters prior to their transporting defendant to Central Lockup for booking.

Generally, a warrantless, non-consensual entry into a private residence in order to effect an arrest in constitutionally impermissible. United, States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Brown, 387 So.2d 567 (La.1980). The entry and subsequent arrest will be upheld, however, if the police officers have probable cause to arrest an occupant of the residence and entry into the protected area can be justified under one of the narrow exceptions to the warrant requirement. State v. Hathaway, 411 So.2d 1074 (La.1982); State v. Smith, 392 So.2d 454 (La.1980), State v. Abadie, 390 So.2d 517 (La.1980) Police entry into a residence under “exigent circumstances” is one exception to the warrant requirement. State v. Franklin, 353 So.2d 1315 (La.1977). Intrusion into a protected area is justified, therefore, if there is probable cause to arrest and there are exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La.1979). Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, supra; State v. Rudolph, supra; State v. Abadie, supra.

Probable cause for an arrest exists when facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Hathaway, supra. Prior to defendant’s arrest, the victims in two New Orleans area jewelry store armed robberies had identified defendant as the robber. The victims of the Zales robbery had not identified defendant prior to his arrest, but they had supplied police with a detailed description of the robbers. At the time of defendant’s arrest, police recognized him as having been identified as the perpetrator of two armed robberies and as fitting the description of one of the robbers of the Zales Jewelry Store. The officers had probable cause to arrest defendant.

Defendant was arrested at the residence of his co-perpetrator in the Zales robbery, Beverly Childs. When police arrived at the residence, they knocked on the door and identified themselves as police. After a couple of minutes Ms. Childs answered the door. Ms. Childs was arrested because police recognized her as having been identified by the victims as one of the robbers of the Zales store.

When Ms. Childs opened the door, the police observed the defendant, whom the police recognized, run from the room down a hallway. The officers rushed into the apartment to apprehend defendant. They also opened the apartment’s rear door to admit other officers who could assist in the arrest. Defendant’s flight when he saw the officers created exigencies upon which the officers were justified in acting to prevent defendant’s escape, to avoid a possibly violent confrontation and to prevent destruction of evidence.

Defendant’s arrest was valid because police had probable cause to arrest and were confronted with exigent circumstances which justified their entry into Ms. Childs’s apartment.

A confidential informant supplied police with the location of Ms. Childs’s apartment and information that defendant and Ms. Childs could be found there. Defendant argues that his arrest was illegal because the State did not prove the reliability and credibility of the informant and his information. In this case the information supplied by the informant had no effect upon the determinations of probable cause and exigent circumstances. Nothing in our law would prevent the police in this case from knocking on Ms. Childs’s door. Defendant’s argument is without merit.

Searches and seizures of evidence without a warrant are per se unreasonable unless justified under one of the narrow exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hernandez, 410 So.2d 1381 (La.1982). Once a defendant makes an initial showing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions. State v. Hernandez, supra.

The State argues that the search and the seizure of the evidence in this case were justified under the “plain view” exception. In order for a warrantless seizure to come under the plain view rule, three conditions must be satisfied: (1) There must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is inadvertently discovered, (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Hernandez, supra.

We held, above, that the police were justified in entering Ms. Childs’s apartment. The officers testified to discovering, while effecting the arrests, jewelry and a gun in the bathroom, more jewelry in a pile on the bed in the bedroom, and two more guns under the mattress of the bed. All of these items were immediately recognizable without close inspection as evidence in an investigation involving armed robberies of jewelry stores. Requirements (1) and (3) of the plain view rule were satisfied.

The jewelry and the gun found in the bathroom were inadvertently discovered when the officers apprehended the defendant. The jewelry found in the bedroom was inadvertently discovered in a pile on the bed when the officers entered to escort out of the bedroom another occupant of the apartment whose unsupervised presence presented potential serious danger to the arresting officers. As to these items all three requirements of the plain view rule were satisfied. We find, therefore, that as to these items defendant’s motion to suppress was properly denied.

As to the other two guns, however, we find that the trial court did err in not suppressing this evidence. These guns were not found inadvertently, but were found only after the police returned to the bedroom and searched under the mattress. At that point the police had secured the apartment and its occupants. If they thought they had probable cause to search the apartment for additional evidence, they should have maintained their security and applied to a magistrate for a warrant to search.

Seizure of this evidence is likewise not justifiable as a search incident to a lawful arrest. At the time the officers returned to the bedroom, the area was no longer within the immediate control of any of the occupants of the apartment. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Commodore, 418 So.2d 1330 (La.1982).

Introduction of this evidence at trial, however, even though erroneous, does not warrant reversal of defendant’s conviction. The victims were unable to identify either of the guns found in the bedroom as having been used by the robbers. The gun found in the bathroom was identified as having been used by defendant during the robbery. As to the weapon used by Ms. Childs, the only testimony the witnesses could give was that “it looked very large” and that “it had a black barrel.”

Our Supreme Court in State v. Gibson, 391 So.2d 421 (La.1980), articulated the proper standard to be applied by appellate courts to determine if the trial court’s erroneous admission of illegally seized evidence warrants reversal of a defendant’s conviction. Applying this standard in connection with the illegally seized evidence in this case, we find that there is no reasonable possibility that the guns might have contributed to the convictions, and that admission of the guns into evidence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, supra.

Defendant’s assignment of error as to his motion to suppress the physical evidence does not merit reversal of his conviction.

As to defendant’s assignment of error because the trial court did not suppress evidence concerning statements he made, we note that defendant did not move the court to suppress the statements. Consequently, there was no hearing on the issue, and, obviously, the trial court did not render a ruling.

Prior to trial the State gave defendant notice of its intention to use evidence of the statements at trial, and at trial laid the proper predicate for introduction of the statements. Defendant’s counsel cross-examined one officer on the predicate, but no objection was raised to the introduction of the statements. Defense counsel’s only objection was that the court would not let him cross-examine the second officer on the predicate. That issue (limited denial of cross-examination) has not been raised on appeal, and, therefore, cannot be considered. La.C.Cr.P. Art. 920. The issue concerning whether defendant’s rights connected with making statements were constitutionally safeguarded was never presented to the trial judge, leaving no ruling for this court to review.

We, nevertheless, have reviewed all of the evidence concerning defendant’s statements. We find that the evidence establishes beyond a reasonable doubt that the statements were given by defendant freely, voluntarily, and intelligently, after he had been advised of his rights concerning the making of statements and interrogation by police, and after he had indicated that he understood these rights. This portion of defendant’s assignment of error is without merit.

CONCLUSION

Having found no error which warrants reversal of defendant’s conviction, we affirm. Further, we amend and recast defendant’s sentence to provide that it shall be served without benefit of parole, probation or suspension of sentence. As amended, defendant’s sentence is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant has not appealed his sentence. Having found no error which would require resentencing, and having affirmed his conviction, for completeness we also affirm his sentence.

      . Defendant was apprehended in the bathroom where he had apparently attempted to dispose of some jewelry by throwing it into the toilet. A gun was also found near the defendant on the bathroom floor.

      . Because this evidence was erroneously admitted, we did not consider it when we conducted our review to determine the sufficiency of the evidence.


author: DOUCET, Judge.

text:
    Gladys Brown THOMAS, et al., Plaintiffs-Appellants, v. MISSOURI-PACIFIC RAILROAD CO., et al., Defendants-Appellees.
    No. 83-532.
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 1984.

      David W. Robertson and Susan Theisen, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, F. Rae Swent, LeDoux R. Provosty, Jr. and Ronald J. Fiorenzi, Alexandria, Robert L. Oliver, Baton Rouge, Michael Davis, Alexandria, for defendants-appellees.
    C. James Hicks, Alexandria, Charles F. Wagner, Pineville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

On June 24, 1981, a train-auto collision occurred which resulted in the death of the driver and one passenger and seriously injured another passenger. In bifurcated and consolidated actions , the jury returned a verdict in favor of defendant, Missouri-Pacific Railroad Co. (Mo-Pac), and the trial judge rendered judgment in favor of defendant, State of Louisiana.

The findings exonerating defendants Mo-Pac and the State are appealed. In addition to other procedural issues presented on appeal, the plaintiffs question the propriety of the trial judge’s revocation of his prior grant of a new trial with regard to defendant Mo-Pac.

The facts and issues are as follows:

At approximately 10:00 P.M. on June 24, 1981, Herman Thomas was driving a 1975 Cadillac on Sugarhouse Road in Alexandria, Louisiana. Thomas, accompanied by two women, Sandra Mock and Florine Beard, en route to dinner at a nearby restaurant, had the car windows up, the air conditioner on, and the tape player was playing gospel music. As the Thomas vehicle approached the railroad crossing, a Missouri-Pacific train was coming down the track from his left at approximately 35 m.p.h. At the same time, two boys on bicycles passed across the railroad tracks whereupon the engineer, Billy Adams, began blowing the whistle. As the boys cleared the crossing, the Thompson vehicle came into view when the train was approximately 250 feet away. The engineer testified he had no reason to believe the car would not stop as he continued to blow the whistle, however, when the car passed the cross-arms at a slow rate of speed, the engineer put the train into emergency. The automobile was struck by the freight train and carried 1,500 feet down the track, killing the driver and Mock passenger and seriously injuring the Beard passenger.

The intersection of Sugarhouse Road and the Missouri-Pacific tracks is located within the City of Alexandria and within the Missouri-Pacific railroad yard. Sugarhouse Road runs generally east-west at that point, and the railroad tracks run generally north-south. The automobile was westbound, and the train was north-bound. Sugarhouse Road crosses three separate tracks at that crossing. The crossing is controlled only by a stationary cross-arm sign; there are no signal lights, bells, or barricades. Lighting clearly illuminated the intersection.

Located at the southeast quadrant of the intersection, i.e., on the motorist’s left and the trainmen’s right as each approached the crossing — there is located a windowless metal storage building, 90 feet long by 24 feet wide. This building was owned by the State of Louisiana. Its position somewhat impaired the view of west-bound motorists and north-bound trains of each other.

The railroad’s rules call for a maximum speed of 20 m.p.h. at the location in question, however, it appears the train was proceeding at a speed of approximately 35 m.p.h. Appellants contend that if the train had been proceeding at 20 m.p.h. or slower, and/or had the metal storage building not obstructed visibility, the accident could have been avoided. Appellees maintain the accident was the sole fault of Thomas in failing to notice the oncoming train.

The driver of the automobile, Herman Thomas, and the rear-seat passenger, Sandra Mock, were killed. The front-seat passenger, Florine Beard, was severely injured. Three tort actions were brought in the district court and these actions were subsequently consolidated for trial.

Florine Beard sued the railroad, the engineer, Billy R. Adams, the State of Louisiana, and the unopened succession of Herman Thomas. Prior to trial, Beard settled with Mo-Pac, Adams, and Thomas, leaving for trial only the action against the State. The State filed a third-party demand against Mo-Pac. In addition, the State filed a third party demand against Manuel and Bonnie Henry and John and Judy Hall, hereinafter referred to as the “Henry defendants” alleging that they had erected the metal storage building and that they, and not the State, owned it at the time of the accident.

Herman Thomas was survived by his widow and four adult daughters. The Thomas plaintiffs sued Mo-Pac, the State, the City of Alexandria, and the Henry defendants. Prior to trial the action against the City of Alexandria was dismissed without prejudice. The State filed third-party demands against Mo-Pac and the Henry defendants. The Henry defendants filed a third-party demand against Mo-Pac.

Sandra Mock was survived by four minor children. Through their provisional tutrix, the Mock children sued Mo-Pac and the State. Prior to trial the Mocks settled with Mo-Pac. The State filed third-party demands against Mo-Pac and the Henry defendants.

Mo-Pac demanded a jury trial of all the actions against it. No other party sought a jury trial. Thus, the case that went to trial consisted of a combined jury trial wherein the Thomas’ claim against Mo-Pac was tried, and a bench trial wherein all plaintiffs’ claims against the State, and Thomas’ claims against the Henry defendants, was tried. The trial judge originally decided to hear the cases against the defendants other than Mo-Pac in the jury’s presence, but changed his mind about the procedure midway through the trial. The result was that the jury heard some but not all of the evidence presented by counsel for the Beard and Mock plaintiffs, and some but not all of the defensive evidence presented by the State and the Henry defendants. Plaintiffs contend that the procedure employed constitutes reversible error.

The trial judge ruled that the State, and not the Henry defendants, was owner and custodian of the metal storage building that blocked the view at the crossing in question, and subsequently granted judgment exonerating the Henry defendants. No appeal has been taken from that judgment.

The jury returned a verdict in favor of Mo-Pac. Subsequently, the trial judge found the operator of the vehicle was solely at fault and accordingly rendered judgment exonerating the State.

Subsequently all plaintiffs moved for a new trial against the State, and the Thomas plaintiffs moved for a new trial against Mo-Pac. On January 4, 1983, the trial judge issued reasons for judgment granting the Thomas plaintiffs a new trial , against Mo-Pac and denying all plaintiffs a new trial against the State. Nevertheless, on January 31, 1983, the trial judge, in response to a request for rehearing of the judgment granting a new trial against Mo-Pac, revoked his prior order, finding the jury instructions complained of by movants constituted harmless error.

When the trial judge revoked his judgment granting the Thomas plaintiffs a new trial against Mo-Pac, the Thomas plaintiffs sought writ of review from this Court, contending that there was no compliance with any procedure whereby the trial judge could revoke or recall a judgment granting a new trial, and that the denial of the new trial on “judicial economy” grounds violated this Court’s pronouncements against denying new trials on such grounds. This court denied the Thomas plaintiffs’ writ application on the basis that the trial court had never signed a final judgment granting plaintiffs the new trial against Mo-Pac. The controversy over the finality of the motion for new trial centers on the trial judge’s language in his reasons for judgment of January 4, 1983, wherein he stated that “the Thomas motion for a new trial as to Missouri-Pacific is granted”. Also, the Minute Entry for January 4, 1983 states “For written reasons this day assigned, judgment is rendered granting the Thomas motion for a new trial as to the Missouri-Pacific. ...” Furthermore, the court’s oral reasons for judgment denying the new trial were premised, inter alia, upon “judicial economy” grounds. The Thomas plaintiffs contend that final judgment was indeed rendered granting them a new trial against Mo-Pac, and re-urge their contentions that the trial judge’s action in revoking the judgment granting a new trial was improper and without authority.

The Thomas plaintiffs have appealed from the judgment on the jury’s verdict exonerating Mo-Pac and from the trial court’s judgment denying their motion for a new trial against Mo-Pac. All plaintiffs have appealed from the trial judge’s judgment exonerating the State and from the judgment denying plaintiffs’ new trial motion against the State.

With respect to the action against Mo-Pac, the issues are the correctness of the jury’s determination that Mo-Pac was free of fault, the correctness of the procedures employed by the trial court whereby the jury heard only portions of the evidence (having been excluded from hearing certain testimony against the State), the correctness of the trial court’s jury instructions, and the correctness of the trial judge’s action in revoking or recalling his judgment granting plaintiffs a new trial.

With respect to the actions against the State, the issues are the correctness of the trial judge’s determination that the State was free of liability in maintaining the storage building which limited visibility and the correctness of the trial judge’s decision denying plaintiffs a new trial.

Appellants have specified the following Assignments of Error:

1. The trial court erred in adjudging the defendant railroad free from fault, when the evidence clearly established that the railroad was in violation of its own 20 m.p.h. speed limit by traveling at a speed of at least 35 m.p.h., and when the evidence also clearly established that a warehouse constituted a serious obstruction to visibility at the grade crossing in question.

2. The trial judge erred in removing the jury from the courtroom during critical testimony of key liability witnesses.

3. The trial judge erred in charging the jury, in effect, that the motorist, rather than the railroad, has the principal responsibility for avoiding a grade crossing collision.

4. The trial judge erred in revoking or recalling his judgment granting plaintiffs a new trial against the railroad.

5. The trial judge erred in holding that the fault of the motorist barred recovery on behalf of the motorist’s survivor’s as “fault of the victim” under La.C.C. art. 2317, and in holding that the motorist’s fault barred recovery on behalf of the automobile passengers as “fault of a third person” under La.C.C. art. 2317.

The evidence established that the engineer was exceeding the speed imposed by the railroad itself (20 m.p.h.) and appellants contend this violation of the self-imposed regulation constitutes negligence per se. Appellants also point to Mo-Pac’s knowledge of the presence of the metal building and its obstruction to visibility in arguing the jury was clearly wrong in finding Mo-Pac was free of fault.

Appellants cite Illinois Central R.R. Co. v. Cullen, 235 So.2d 154 (La.App. 4th Cir. 1970), writ ref., 256 La. 789, 239 So.2d 172 (1970), which states in part:

“... a safety regulation of the Railroad designed for its own operation may be adopted by the Court as the standard of care to measure the conduct of the Railroad in determining whether or not the Railroad was guilty of negligence ...” (emphasis added)

The purpose of Mo-Pac’s 20 m.p.h. speed limit was to protect railroad employees and equipment and “safety as all are involved”.

However, it is clear from the emphasized language from Cullen, that violation of one’s own regulation is only one factor a court may, in its discretion, consider in determining whether a party is at fault. It should be noted that the train was not exceeding the 45 m.p.h. municipal speed limit imposed by the City of Alexandria.

The record reveals that had the train been traveling at its self-imposed speed of 20 m.p.h., instead of 35 m.p.h., only three additional seconds would have elapsed before impact. Given the slow speed at which the Thomas vehicle was crossing the tracks, the collision would have occurred regardless of the train’s speed.

Appellants also cite Fisher v. Walters, 428 So.2d 431 (La.1983) as supportive of their position. In Fisher, a train was traveling above its own speed regulation in a rural area where there was no legal speed limit when it collided with a car stalled on the tracks. The evidence revealed that the railroad crew failed to maintain a proper lookout and operated the train without a functioning speedometer. In addition, there was evidence that the crew was following a policy of not braking or slowing freight trains at the first sight of a vehicle on the tracks to protect the life of persons stalled on the track. The evidence indicated the train was approximately 2,000 feet from the intersection when the car moved onto the track. Under all these circumstances, the trial court found the railroad company was negligent and the Supreme Court affirmed its decision, finding it was not clearly wrong. We find Fisher distinguishable on its facts from the present case.

La.R.S. 45:563, prior to its repeal, Acts 1982, No. 669 § 3, mandated that motorists stop at all railroad crossings. The law now provides in pertinent part that a driver shall stop "... within fifty feet but not less than fifteen feet from the nearest rail of such railroad ... when ... a railroad train approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with R.S. 32:168, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard.” La.R.S. 32:171 A(3). The Thomas vehicle came into sight when the train was approximately 250 feet from the crossing. The train was only three seconds away when the car fouled the tracks. There is little or no dispute but that the engineer emitted a warning signal as required by La.R.S. 32:168.

Generally, a motorist must use his sense of sight and hearing for a possible oncoming train before traversing the crossing, and that even if his view is obstructed to such an extent as to prevent him from being able to see all the way down the track, then the law requires that he exercise a high degree of caution to ascertain that there is no train in the vicinity. Kavanaugh v. Travelers Insurance Co., 203 So.2d 780 (La.App. 2nd Cir.1967); Bertrand v. Missouri-Pacific Railroad Company, 160 So.2d 19 (La.App. 3rd Cir. 1964), writ ref. 245 La. 1075, 162 So.2d 571; Breaux v. Texas & Pacific Railroad Company, 176 So.2d 640 (La.App. 1st Cir.1965); Hymel v. Texas & New Orleans Railroad Company, 145 So.2d 138 at 140 (La.App. 4th Cir.1962). When a motorist’s view of the railroad right-of-way is obstructed, he must exercise a higher degree of caution. Kavanaugh v. Travelers Ins. Co., supra: Hymel v. Texas & New Orleans Railroad, supra.

The record supports the jury’s finding that Thomas placed himself in a position of peril by proceeding across the tracks, without ascertaining the safety of doing so and in disregard of the warning signal being given by the oncoming train. There was nothing unusual about the speed of the Thomas vehicle to indicate it would not stop. A train crew can assume that drivers will bring their vehicles to a stop unless the car’s approach is so unusual as to place an ordinarily prudent man on notice that the automobile cannot be brought to a stop in time to avoid collision. Thibodeaux v. Carlock, 392 So.2d 1084 (La.App. 3rd Cir.1980); Bordenave v. Texas & N.O.R. Co., 46 So.2d 525 (La.App.Orl.1950).

By the time the engineer realized the driver’s peril, there were no efforts to be taken which could have avoided the accident. Accord: Gibson v. Kansas City Southern Railroad Co., 233 So.2d 26 (La. App. 4th Cir.1970), writ denied 256 La. 254, 236 So.2d 31. Troxlair v. Illinois Central R. Co., 291 So.2d 797 (La.App. 4th Cir. 1974), writ denied 294 So.2d 834 (La.1974); Scott v. Louisiana Midland Ry. Co., 204 So.2d 597 (La.App. 3rd Cir.1967), writ denied 251 La. 750, 206 So.2d 96 (1968); Carlin v. Illinois Central R. Co., 210 So.2d 95 (La.App. 1st Cir.1968), writ denied 252 La. 831, 214 So.2d 160 (1968).

Appellants contend that it is impossible, under the pure comparative negligence law of our state for the jury to have found the railroad totally free of fault. La.C.C. art. 2323. We disagree. Whether a fact-finder determines a party to be one percent at fault, totally at fault, or somewhere in between, we believe the manifest error rule applies. Accord: Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3rd Cir.1984), handed down this term; McKinley v. Bekins Moving & Storage Co., 449 So.2d 705 (La.App. 5th Cir. 1984); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984). The fact finder’s decision is to weigh the credibility of witnesses, resolve conflicts and inconsistencies in testimony and, absent a showing of manifest error, this court will not disturb that decision. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Abraham v. Hanover Ins. Co., 420 So.2d 526 (La.App. 2nd Cir.1982); Sampy v. Roy Young, Inc., 425 So.2d 284 (La.App. 3rd Cir.1982). See also: Johnson, Comparative Negligence and the Duty Risk Analysis, 40 LA.L.REV. 319. We cannot say the triers of fact clearly wrong in their apportionment of fault for the accident.

Appellants also contend that the complex procedure of a bifurcated trial in a comparative negligence case prevented the jury from reaching a reasoned and just result. On the eve of the trial, the Beard and Mock plaintiffs settled with Mo-Pac, the only party requesting a jury trial. Thus, the case went to trial with a jury trial involving the Thomas plaintiffs’ claim against Mo-Pac and a bench trial with all plaintiffs aligned against the State and the Thomas plaintiffs claims against the Henry defendants. In particular, appellants complain of the lack of any statutory guidance as to whether the jury should assign a percentage of fault to alleged tortfeasors not before the jury. The trial judge decided that he would allow the jury to assess the degree of the State’s fault if he found liability existed per La.R.S. 13:5105. In accordance with this decision, the trial judge allowed the jury to hear only portions of the testimony against the State.

Appellants contend that the procedure employed deprived the jurors of critical testimony of key liability witnesses. However, our review of the record convinces us that if the jury was indeed deprived of any “critical evidence”, it was because the plaintiffs either failed to call certain witnesses and/or they failed to solicit the testimony desired during their own examination of each witness. As aforementioned, the claim against the State was premised upon its ownership of a storage building which allegedly obstructed the view of both motorists and engineers. The trial judge found the building situated in the south-east quadrant of the intersection was not a contributing factor, rather, the accident was caused solely by Thomas’ inattentiveness.

The appellant’s own expert, Professor Andrew J. McPhate, testified that when the Thomas vehicle was 55 feet from the easternmost track, the driver of the vehicle could have seen at least 200 feet down the track and that at this point a vehicle traveling 15 miles per hour could have easily stopped at least 18 feet from this track. All of Professor McPhate’s testimony indicates that when the motorist was 55 feet from the easternmost track, that if he would have been paying attention, he could have seen this train at a sufficient enough distance from the track to have stopped his vehicle at least 18 feet from the nearest track. Professor McPhate’s calculations were based upon a prudent driver under similar circumstances in which the deceased found himself in, while driving 15 miles per hour. However, there was considerable testimony that Thomas was driving only 5 miles per hour, which would have allowed him to stop at a distance much further from the track than the 18 feet which Professor McPhate testified to.

Another expert, Mr. John Bentley, an engineer who was qualified to testify in the field of accident reconstruction, testified that at 55 feet from the track, the deceased could have seen at least 200 feet down the track. This testimony was corroborated by the testimony of Dr. Olin Dart, a professor of civil engineering at LSU School of Engineering in Baton Rouge, Louisiana. Dr. Dart was qualified as an expert in civil engineering and testified that on the night of the accident, if the deceased would have been traveling 15 miles per hour, he would have had sufficient time to see this train and could have stopped at 27.2 feet from the easternmost track. Dr. Dart also stated that according to his calculations and measurements, at 30 feet from the track, if Thomas had been going 10 miles per hour, he would have had unlimited sight distance and if he had looked to see the oncoming train, he could have stopped his vehicle 14 feet from the track. Dr. Dart ended his testimony by stating that if the deceased was traveling 5 miles per hour, as was testified to, when he was 30 feet from the track he would have had unlimited sight distance and could have stopped his vehicle at least 23 feet from the track.

Plaintiffs complain the jury was prevented from hearing testimony from brakeman Charles Buquoi regarding his knowledge of the building and its effect on visibility. However, Mr. Buquoi was questioned both in the absence of the jury and again in their presence. The same is true of the testimony of Mo-Pae fireman Charles Bennett. Both Buquoi and Bennett were of the belief that the building was not a factor in the accident. In each case, if the plaintiffs failed to elicit crucial testimony, it was due to their own failure.

The testimony of Messrs. McPhate, Bentley, Dart, Buquoi and Bennett, which indicated the accident was caused by the fault of Thomas and not the railroad, was corroborated by engineer Billy Adams who stated that upon noticing the vehicle, he could not have taken any action to stop the train sooner. Investigating Officer Rodney Peazell opined that there were no obstructions interfering with visibility. In fact, this was the only train-car accident at this intersection he was aware of.

Furthermore, Ms. Beard, the only surviv- or in the Thomas vehicle stated that the last thing she remembered before the collision was the conversation engaged in and the party’s attention toward the automobile clock.

Next, appellants contend that the manifest error rule is inapplicable because of procedural errors, including erroneous charges given the jury. There is no dispute but that La.R.S. 45:563, supra at footnote 2, had been tacitly repealed by the passage of La.R.S. 32:171. Watson v. Illinois Central Gulf R.R., 355 So.2d 1366 (La.App. 1st Cir.1978) writ ref. 357 So.2d 1168 (La.1978). The former statute required a motorist to stop at all railroad crossings whereas the subsequent legislation imposes a conditioned duty to stop. A reading of La.R.S. 32:171 A(3) & (4) indicates the Thomas vehicle was required to stop "... within fifty feet but not less than fifteen feet from the nearest rail ...” as the engineer was sounding his horn for a distance of about 1,500 feet prior to the intersection and the train was plainly visible when Thomas began to proceed across the well-lighted intersection. Furthermore, Thomas was obligated to stop under Alexandria City Ordinance 25-99 which parallels the language of La.R.S. 32:171 A(4). Hence, any error committed by the reading of La.R.S. 45:563 was harmless.

Considering the format of the verdict form presented the jury, they were never required to determine any negligence on the part of Thomas as the first question asked concerned whether Mo-Pac was at fault regarding the collision. That question was answered in the negative, thus there was no need to address the motorist’s failure to stop. The jury had no reason to be influenced by the complained-of reference to La.R.S. 45:563. Accord; Williams v. Griffin, 422 So.2d 199 (La.App. 4th Cir. 1982), writ denied 423 So.2d 1182 (La.1982).

In addition to their objection to the reading of La.R.S. 45:563, appellants contend the trial court erred in reading the Alexandria City Ordinance Section 25-59 without mentioning that any fault on the part of Thomas depended upon all of the circumstances. Also, plaintiffs complain of the charges informing the jury of a motorist’s duty to use his senses of sight and sound before crossing a railroad track and the engineer’s right to assume that a vehicle approaching a crossing will stop in time to avoid a collision. Our review of the record convinces us that, overall, the instructions were pertinent and accurate. Adequate instructions are those which fairly and reasonably point out the issues presented by the pleadings and evidence and provide correct principles of the law for the jury’s consideration. Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La.App. 3rd Cir.1981) writ denied, 401 So.2d 358 (La.1981); McElroy v. Vest, 407 So.2d 25 (La.App. 3rd Cir.1981) writ denied 412 So.2d 83 (La.1982). Even if errors are made in jury charges, appellate courts have a duty to review the facts in the record and affirm the verdict if consistent with the evidence. Andry v. Kinberger, 364 So.2d 613 (La.App. 4th Cir.1978). We find that the instructions adequately explained the law to the jury.

Plaintiffs have also appealed the judgment of the trial judge revoking, upon rehearing, his prior grant of a Motion for New Trial. In support thereof appellants contend the Written Reasons, issued on January 4, 1983, for the grant of plaintiffs request for a new trial against Mo-Pac served as a final judgment, thus the decision on rehearing was invalid for failure to comply with La.C.C.P. arts. 1951, 1971-1979.

La.C.C.P. art. 1918 provides that a final judgment shall be identified as such in appropriate language and, where written reasons for judgment are assigned, they shall be set out in an opinion separate from the judgment. The record discloses no such separate judgment, only written reasons as to why the trial judge believed the Motion for New Trial had merit. Furthermore, we agree with the decision of the trial judge, on rehearing, that the inclusion of La.R.S. 45:563 in jury instructions constituted harmless error, for reasons assigned here-inabove.

Where there are only written reasons assigned and no separate signed judgment, there is not a final judgment. Pearce v. Johnson, 250 So.2d 567 (La.App. 3rd Cir.1971). The assignment of reasons, dated January 4, 1983, was merely an interlocutory ruling in the absence of formal judgment. Prior to the signing of final judgment, a trial judge may, at his discretion, change the substance or result of interlocutory rulings. Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3rd Cir.1980). In the present case, there was a contradictory hearing held on January 31, 1983, in response to a request for rehearing. Thereafter, the trial judge assigned reasons denying applicants a new trial and a judgment was signed accordingly. We find the trial court acted within its authority in setting aside the previous grant of a new trial upon appellee’s request for a rehearing prior to the signing of final judgment.

Lastly, appellants contend that the trial judge erred in holding that fault of the driver barred recovery from the State on behalf of the passengers. However, for reasons set forth hereinabove, we cannot conclude the finders of fact were clearly wrong in finding the storage building neither presented an unreasonable risk of harm nor that the damage resulted from the location of the building. La.C.C. art. 2317.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . Two other cases were consolidated: Florine Beard v. Missouri-Pacific Railroad Co., et al., 451 So.2d 1161, and Darrill Dewayne Mock, et al. v. Missouri-Pacific Railroad Co., et al., 451 So.2d 1162. These two cases are considered herein, but separate judgments are rendered.

      . La.R.S. 13:5105 prohibited the jury from determining the liability of the State.

      . LSA-R.S. 45:563 provided:
      "No person shall drive or propel any automobile or other motor driven vehicle upon the intersection of a railroad track and a public highway or municipal street at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for approaching trains.
      “In the trial of all actions to recover personal injury or property damages sustained by any driver of such motor driven vehicle by collision of his vehicle and a train in which action it may appear that the driver violated this Section, the question of whether the violation was the sole or proximate cause of the accident and injury is for the jury to determine regardless of the penalizing feature of R.S. 45:564. That the violation of this Section shall not affect recovery for damages and the question of negligence or violation shall be left to the jury. Furthermore, the contributory negligence statutes of Louisiana shall apply in these cases as in other cases of negligence.
      "This Section shall not apply to automobiles or other motor driven vehicles of any municipality, when responding to fire alarm, or to the automobiles or other motor driven vehicles of the police department of any municipality when responding to an emergency call, or to motor driven ambulances when responding to an emergency call. Nor shall this Section apply where crossings are provided with a flagman, and the signal to proceed has been given by the flagman, or where gates are provided and the gates are open.”

      . § 171. Obedience to signal indicating approach to train
      A.Whenever any person driving a motor vehicle approaches a railroad grade crossing under any of the circumstances stated in this Section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
      (1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train.
      (2) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train.
      (3) A railroad train approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with R.S. 32:168, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard.
      (4)An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
      B. No person shall stop a motor vehicle upon any railroad crossing.
      C. No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed when an approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
      D. No person shall drive any vehicle across any railroad crossing while the signal devices are flashing when an approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
      Amended by Acts 1982, No. 669, § 1.


text:
    Florine BEARD, Plaintiff-Appellant, v. MISSOURI-PACIFIC RAILROAD COMPANY, et al., Defendants-Appellees.
    No. 83-533.
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 1984.

      Provosty, Sadler & deLaunay, F. Rae Swent, LeDoux R. Provosty, Jr. and Ronald J. Fiorenzi, Alexandria, Robert L. Oliver, Baton Rouge, Michael Davis, Alexandria, for defendants-appellees.
    C. James Hicks, Alexandria, Charles F. Wagner, Pineville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the consolidated case of Gladys Brown Thomas v. Missouri-Pacific Railroad Co., et al, 451 So.2d 1152 (La.App. 3rd Cir.1984) rendered this day, the judgment appealed is AFFIRMED in accordance with the views expressed in the companion case.


text:
    Darrill Dewayne MOCK, et al., Plaintiffs-Appellants, v. MISSOURI-PACIFIC RAILROAD COMPANY, et al., Defendants-Appellees.
    No. 83-534.
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 1984.
    David W. Robertson and Susan Theisen, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, F. Rae Swent, LeDoux R. Provosty, Jr. and Ronald J. Fiorenzi, Alexandria, Robert L. Oliver, Baton Rouge, Michael Davis, Alexandria, for defendants-appellees.
    C. James Hicks, Alexandria, Charles F. Wagner, Pineville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the consolidated case of Gladys Brown Thomas v. Missouri-Pacific Railroad Co., et al, 451 So.2d 1152 (La.App. 3rd Cir.1984) rendered this day, the judgment appealed is AFFIRMED in accordance with the views expressed in the companion case.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Rickie M. JONES.
    No. KA-1225.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Walter L. Sentenn, Jr., Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   LOBRANO, Judge.

On July 15, 1982, appellant was charged by bill of information with three counts of armed robbery in violation of R.S. 14:64. He was arraigned on July 20,1982 and pled not guilty.

On March 16, 1983, following the denial of various motions, including motions to suppress his confession and identification, appellant pled guilty as charged to all three counts, reserving his right to appeal his conviction on the basis of the denial of his pretrial motions as per State v. Crosby, 338 So.2d 584 (La.1976).

On April 5, 1983, appellant was adjudged to be a multiple offender and was sentenced to serve thirty-three years at hard labor on each count, said sentence was to run concurrently.

Appellant has briefed no specific assignments of error as to the denial of pretrial motions. Assignments of error neither briefed nor argued are deemed waived on appeal. State v. Kenner, 384 So.2d 413 (La.1980). Appellant has requested the court review the record only for errors patent as required by La.C.Cr.P. Art. 920(2).

The bill of information was in proper form and signed by the district attorney. The trial court acted appropriately in that appellant was present and represented by counsel at his arraignment, at the time he entered his plea of guilty and at his sentencing.

The record reveals that the trial judge erred in his sentencing of appellant. R.S. 14:64 provides for a penalty of not less than five nor more than ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. At the time of sentencing, no prohibition against parole, probation, or suspension of sentence was made by the trial court. This is an error patent that is not favorable to the defendant. In State v. Napoli, 437 So.2d 868 (La.1983), the Louisiana Supreme Court held that a reviewing court should review only those issues raised by the defendant and any errors patent favorable to the defendant.

However, in State v. Telsee, 425 So.2d 1251 (La.1983), the Supreme Court was specifically asked to review the defendant’s sentence for forcible rape. While finding that the number of years imposed was excessive, the Court also noted that the sentence was “unlawfully lenient” because the trial court did not specify that any part of the sentence was to be without benefit of parole, probation or suspension of sentence. The forcible rape statute required that at least two years of the sentence be served without benefit of parole, probation or suspension of sentence.

The language of C.Cr.P. Art. 882 indicates that the trial court on its own motion can correct an illegal sentence at anytime and indicates that either the State or the defendant may question the legality of a sentence by appeal or by writ. The language clearly does not limit the correction of sentencing errors only to those adverse to the defendant.

In addition, Art. 920 of the Code of Criminal Procedure dictates the scope of appellate review in criminal appeals and does not restrict the recognition of patent error only to that which is adverse to the defendant.

By reading Articles 882 and 920 together it appears that sentencing errors adverse to either the state or the defendant can be recognized by the appellate court on its own motion. However, in State v. Speed, 335 So.2d 28 (La.1976), the Supreme Court held that the State’s contention could not be dealt with by the court upon defendant’s appeal for review of sentence. The defendant was sentenced to life imprisonment after a conviction for aggravated rape. Answering defendant’s appeal, the state pointed out that the mandatory statutory penalty at that time for aggravated rape was a death sentence. The State was required to bring its request for review of sentence by means of a State appeal (writ) following La.C.Cr.P. Art. 882.

Later, in State v. Telsee, supra, the Supreme Court held that defendant’s sentence, because it failed to specify that any part would be without parole, probation, or suspension, was “unlawfully lenient”. The sentence was amended to withdraw the benefits of parole, probation and suspension for two years as mandated by the forcible rape statute, R.S. 14:42.1.

Shortly thereafter, the Supreme Court contradicated Telsee in State v. Napoli, supra, but did not expressly overrule Tel-see. In Napoli, supra, the high court set aside the more severe sentence imposed by the First Circuit and reinstated the original sentence of the trial court. In its per curiam decision of September 2, 1983, the Supreme Court explained:

“When the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect in defendant’s exercise of his right to appeal.”

Although this Court has addressed this problem in recent cases, State v. McCoy, 450 So.2d 690, handed down May 10, 1984 resolved the conflicting views of the different members of this Court. By an en banc vote this Court has agreed to following the holdings of State v. Telsee, supra, until such time as our Supreme Court expressly overrules that decision.

Accordingly we find patent error and amend appellant’s sentence to read that it shall be served without benefit of parole, probation or suspension of sentence. We find no other errors patent and affirm the rest of appellant’s sentence.

CONVICTION AFFIRMED, SENTENCE AMENDED AND AS AMENDED AFFIRMED.

      . R.S. 14:64
      (A) Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      (B) Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

      . There is no review for sufficiency of evidence as appellant pled guilty.

      . Art. 882 Correction of illegal sentence, review of illegal sentence.
      An illegal sentence may be corrected at any time by the court that imposed the sentence. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
      (1) In an appealable case by appeal; or
      (2) In an appealable case by writs of certiorari and prohibition.

      . Art. 920 Scope of appellate review.
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

        . State v. Lee, 445 So.2d 54 and State v. Barber, 445 So.2d 463 both handed down on January 12, 1984 presented the opposing views of different panels of this Court. The Barber panel followed Napoli, supra, while the Lee panel followed Tel-see, supra.

      . In State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983) our brothers of the First Circuit decided to follow the Telsee jurisprudence. As of this writing, that case has been submitted to the Supreme Court for decision.


text:
    STATE of Louisiana v. Troy J. MILLER.
    No. K-1949.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1984.
    Clyde D. Merritt, Dwight Doskey, New Orleans, for relator.

      Harry F. Connick, Dist. Atty., New Orleans, for respondent.
    Before AUGUSTINE, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

The relator, Troy J. Miller, was indicted, with co-defendant, Edward Williams, for first degree murder. La.R.S. 14:30. According to the indictment, on August 10, 1983, Miller and Williams “committed first degree murder of one Wayne C. Breland, while in the perpetration or attempted perpetration of a simple robbery.” The relator, Miller, filed a motion for a bill of particulars wherein he requested certain factual information concerning the charges against him. The State refused to provide the requested information and the district court found the refusal to be proper. Additionally, relator filed a motion to suppress the identification. The district court found that a cause of action was not stated by the motion to suppress the identification and therefore the district court summarily dismissed the defendant’s motion. We granted certiorari in this case to review the correctness of the trial court’s rulings on these preliminary motions. The record was ordered from the district court, all parties were afforded an opportunity to file briefs and to argue this matter before this Court. After review of this case we reverse in part and affirm in part the judgments of the district court on these issues of discovery.

Bill of Particulars

In his request for a bill of particulars, the relator asked the state to disclose the following: (1) the time and location of the offense [#35] (2) the aggravating circumstances upon which the state would rely should the ease proceed to sentencing hearing [# 33] (3) the name of the robbery victim [# 34] (4) the facts out of which the homicide arose [# 36] (5) the object of the robbery [# 38] and the manner used for the robbery [# 39].

A bill of particulars may not be used to discover the details of evidence with which the state intends to prove its ease, however the state shall provide such information as to the nature and cause of the accusations as is required in order to allow the defendant to properly prepare a defense. La. Const. Art. 1, Sec. 13. State v. Atkins, 360 So.2d 1341 (La., 1978), cert. den. 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402, reh. den. 442 U.S. 935, 99 S.Ct. 2871, 61 L.Ed.2d 305.

In the instant case there are multiple defendants and the state is required to prove the commission of two offenses in order to sustain a conviction for first degree murder. Under these circumstances and in order to properly prepare a defense to the charges the relator is entitled to certain of the discovery information he has requested.

That is, he is entitled to be provided the information requested regarding the. time and location of the offense [# 35], the name of the robbery victim [# 34], and the object of the robbery [# 38]. He is also entitled to know the aggravating circumstances which will be used by the state at the sentencing hearing, in sufficient time to prepare for the same. State v. Sonnier, 379 So.2d 1336 (La., 1979). The defendant is however not entitled to the facts out of which the homicide arose [# 36] nor the manner used for accomplishing the robbery [# 39] as this information constitutes details of the evidence of the state’s case.

Accordingly, for these reasons the judgment of the district court sustaining the state’s refusal to provide the information requested by the relator in his bill of particulars Nos. 33-35 and 38 is reversed and its judgment sustaining the state’s refusal to provide the information in items No. 36 and 39 of the relators bill of particulars is affirmed.

Motion to suppress the Identification

The relator moved to suppress the identification made of himself, after his arrest, on the basis that the identification resulted from procedures which were unduly suggestive and unreliable. In his motion to suppress the identification the relator contends that the state alleged that he “was identified after the police gave details to the newspaper indicating that the defendant had been arrested for murder, identified by other people and had given a statement to the police.” The trial judge found that such a statement in the motion did not provide a basis for granting the defendant a hearing upon his motion.

A motion to suppress will require an evidentiary hearing only when the defendant alleges facts that would require the granting of relief. C.Cr.P. Art. 703(E). Where the identification procedure is suggestive and it results in misidentification, this will constitute a grounds for reversal of a conviction. See: State v. Nicholas, 397 So.2d 1308 (La., 1981).

Although the defendant’s written motion is not precise in illustrating the exact basis for seeking to suppress the identification, it does meet the minimum requirements for granting a hearing to determine the motion to suppress. The argument made by the relator before the district court further illustrates this fact. That is, the relator contends that the police provided the local newspaper with information that they had arrested Edward Williams, the co-defendant, and he had confessed to the murder and implicated the relator. This story was published in the local newspaper with a picture of the relator and after this time the relator was identified. Accordingly, a sufficient basis exist for granting a hearing on the motion to suppress the identification. For this reason the judgment of the district court denying a hearing on the motion to suppress the identification is reversed and the matter is remanded to the district court for further proceedings consistent herewith.

For these reasons this writ is granted in part and denied in part.

WRIT GRANTED IN PART AND DENIED IN PART.

      . The State elected not to file a response to the defendant's application. The defendant relied upon his application for writs and oral argument.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Alvin ELZY.
    No. KA-1158.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Harry E. Cantrell, Jr., New Orleans, for defendant-appellant.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant Alvin Elzy is appealing his conviction of attempted aggravated rape in violation of La.R.S. 14:27 (attempt). See La.R.S. 14:42 (aggravated rape). Defendant was arraigned on a charge of attempted aggravated rape. After a trial by a twelve person jury, he was found guilty as charged. A sentencing hearing was held, and defendant was sentenced to serve 25 years at hard labor.

FACTS

At trial, the state adduced the following facts:

On September 10, 1982, the victim was awakened in the early morning hours by defendant who told her that he wanted to “make love to her.” He said that he did not want to hurt her, although he held a knife to her throat and threatened to use it if she screamed. He unsuccessfully attempted to rape her. Someone knocked on the door, and the victim heard her mother get up to answer the door. Defendant said that he would take her with him, but she screamed and the victim’s mother and brother ran into the room. A struggle ensued during which the victim grabbed defendant, and he cut her hand with the knife. The defendant then fled.

Defendant was a friend of the victim’s brother. The victim, the victim's mother, and the victim’s brother all identified defendant as the man who had been in their home that evening. The victim’s mother testified that her son had knocked on the door at the time that the attempted rape was occurring, and as she let him in she heard her daughter scream that defendant was trying to rape her. The victim’s brother’s testimony is identical. The brother chased defendant out of the house and down the street, until he lost track of him.

The police were called to the scene. It appeared that the house had been broken into through a back window. The police arrested defendant at his home, and took him to the victim’s home, where he was positively identified. There were no fingerprints on the knife handle, because the surface could not hold prints. Fingerprints were found, however, on a piece of box top that was dropped in the victim’s house. The prints belonged to defendant.

At trial, the defense offered an alibi witness, Willie Washington. He stated that both he and defendant had been drinking that evening. They were in the area near the victim’s home and that defendant had been in the alley in the back of victim’s home for about ten minutes. He testified that they both began running when they heard someone yell rape.

Defendant testified at trial on his own behalf and substantiated witness Washington’s story that they had been drinking the night in question. He testified that he and Washington had gone to the victim’s house to see the victim’s mother. He stated that the victim’s brother was sitting on the front porch, and the defendant asked to use the bathroom. Because the brother told him that the house was locked and he could not enter, defendant went into the alley behind the side of the house to relieve himself. It was at this time that defendant heard a noise coming from the house. Because he was on probation, defendant became frightened and ran. The victim’s brother chased him and defendant hid in some bushes in order to avoid detection. Defendant denied that he went inside the house that night as well as denying attacking the victim. He claimed that the box top with his fingerprints on it was planted in the house to frame him.

Defendant assigns three errors committed in the trial court as a basis for reversal of his sentence and conviction: (1) lack of sufficient evidence to support a conviction for attempted aggravated rape; (2) failure of the trial court to grant a mistrial based on improper remarks made by the prosecution during closing arguments; and (3) the imposition of an excessive sentence.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant asserts that the trial court was in error in denying a request for a new trial based upon insufficiency of the evidence. His argument is that the state failed to prove that the victim resisted to the utmost. La.R.S. 14:42 provides:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

In reviewing a conviction in order to determine whether sufficient evidence was presented in the trial below, the evidence must be viewed in the light most favorable to the prosecution, and it must be determined that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

In the instant case, there is evidence in the record to support a finding that the defendant was armed with a knife which he held to the victim’s throat and threatened to harm her with if she did not comply with his wishes. Although the victim did state that defendant told her that he “did not want to hurt her,” his actions would cause any reasonable person to be in fear of imminent harm. The victim testified that she did not attempt to struggle because of the knife.

Based on the evidence presented at trial, the state proved beyond a reasonable doubt that the victim was prevented from resisting by the threat of great and immediate bodily harm as well as because the defendant was armed with a dangerous weapon.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant assigns as the second error, the trial court’s denial of a motion for mistrial on the basis of an improper remark made by the prosecution during closing argument.

The remark to which defendant objects is:

“Please remember what she has had to go through and when you go to the jury room to deliberate, send a message to the community that we will not allow people like this...”

At this point, the defense objected and moved for mistrial, which was denied. Defendant contends that this statement was improper in that it went beyond the evidence admitted at trial and was an indirect appeal to prejudice.

Article 774 of Louisiana Code of Criminal Procedure sets forth the scope of closing arguments:

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

Although a remark may go beyond the scope set forth in the above article, it is considered to be harmless error, unless this court is convinced that the remark influenced the jury so that it contributed to the verdict. State v. Moore, 432 So.2d 209 (La.1983); State v. Messer, 408 So.2d 1354 (La.1982); State v. Lee, 364 So.2d 1024 (La.1978). In the instant case, there was ample evidence presented at trial to find defendant guilty of the crime with which he was charged. Based upon the evidence presented at trial, we need not determine whether the remark made in the closing argument was in violation of Louisiana Code of Criminal Procedure article 774, because we find that even had it been improper, it would not have contributed to the verdict.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant argues that the trial court imposed an excessive sentence. He alleges that the trial court failed to particularize the sentence to fit the crime and his background as required by Louisiana Code of Criminal Procedure Article 894.1. He was sentenced to serve 25 years at hard labor; the maximum possible sentence which he could have received would have been 50 years.

The imposition of excessive punishment is prohibited by Article 1, Section 20 of the Louisiana Constitution of 1974. In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court held for the first time that a sentence may be excessive although it is within statutory limits. A sentence is constitutionally excessive if it is “grossly out of proportion to the severity of the crime, or is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355 (La.1980).

In sentencing a defendant, the trial court uses the guidelines set forth in Louisiana Code of Criminal Procedure article 894.1 to individualize the punishment. The court need not articulate each of the aggravating and mitigating circumstances contained in that article, but the record should reflect that these guidelines were taken into consideration in the defendant’s sentencing. State v. Johnson, 443 So.2d 744, (La.App. 4th Cir.1983).

In the case before us, it is clear that the trial court took into consideration the guidelines before sentencing defendant. At the sentencing hearing, after defendant testified on his own behalf, the trial court made a note that defendant had previous convictions for simple battery and for aggravated battery, and was on probation at the time of the offense. The trial judge also held that because of the facts presented by this case, defendant’s record, and the contents of the pre-investigation report, the sentence was warranted.

After it is apparent that the trial court has taken the guidelines in consideration when handing down a defendant’s sentence, that sentence must be reviewed for excessiveness. A sentence imposed by the trial court should not be disturbed absent a manifest abuse of discretion. State v. Johnson, supra; State v. Pearson, 425 So.2d 704 (La.1982) and cases cited therein.

The evidence contained in the record shows that the defendant attempted to commit a serious and violent crime against the victim. Not only does this type of crime require a severe sentence, the defendant’s own criminal background indicates the need for incarceration. We note that this sentence is not out of line with other sentences given in this state and upheld by the appellate courts in similar instances. See e.g., State v. Lewis, 414 So.2d 703 (La.1982).

This assignment of error is without merit.

For the foregoing reasons the conviction and sentence of defendant is AFFIRMED.

AFFIRMED.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Johnny SAGONA.
    No. 83 KA 1243.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 14, 1984.

      Richard S. Hoover, Lafayette, for defendant-appellant.
    Joseph W. Cole, Jr., Asst. Dist. Atty., Ventress, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for plain tiff-ap-pellee.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant was charged by bill of information with the crime of theft of approximately 6,000 gallons of gasoline having a value in excess of $500.00 in violation of LSA-R.S. 14:67. Following a trial by a six-person jury, the defendant was found guilty as charged. He was sentenced by the court to pay a fine of $2,000.00 and court costs or to serve ninety (90) days in the parish jail, and, in addition, was sentenced to confinement at hard labor for a period of seven (7) years. Defendant now appeals his conviction and sentence, alleging two assignments of error, viz:

1. The trial court erred when it overruled defendant’s motion for a new trial based on the grounds that the state failed to prove an essential element, that the value of the property taken was over $500.00, by evidence beyond a reasonable doubt.

2. The trial court erred when it overruled defendant’s motion for a new trial on the grounds that the state failed to respond to defendant’s timely filed motion for discovery requesting a portion of the seized substance for analysis by defendant.

FACTS:

Defendant was arrested at approximately 2:15 a.m. on March 2, 1982, while attempting to release his tractor-trailer tank truck which had become stuck in the muddy area adjacent to the bank of the Intra-coastal Canal at the stubout of Louisiana Highway 415 in West Baton Rouge Parish. A highway patrolman had noticed the activity on the secluded part of the highway about two miles west of Port Allen, Louisiana, and upon investigation discovered the tank truck together with defendant, a wrecker and a helper. Defendant admitted to the officer that the truck was his and that it contained “waste” or slop gasoline. When the officer noticed some thick black liquid at the rear of the truck, he became suspicious that hazardous material was being illegally disposed of. He called the Louisiana State Police Hazardous Materials Section which, in turn, dispatched a trooper.

When the trooper arrived at the scene, he inspected the truck and its contents. The state trooper found several violations of the hazardous materials regulations and/or the Highway Regulatory Act and arrested defendant and impounded his trailer truck, securing it in a wrecker yard in West Baton Rouge Parish. The trooper then notified the criminal investigation bureau, which took samples from each of the four sections of defendant’s tank truck. The contents of the samples were tested by an independent laboratory and found to be clean gasoline, both leaded and unleaded, rather than the residue from the clean gasoline which collects in what is termed “slop tanks” on the shipping barges. As a result of the investigation, defendant was arrested; also a tug boat, the Zephyr, was searched and the captain and the crew members of the Zephyr were arrested.

At the instant trial two of the crew members testified that on the night in question they had shipped gasoline belonging to Amoco from Texas City, Texas to the Port Allen Amoco docks, controlling two barges with ten gasoline tanks and two slop tanks on each barge, each holding about 2,000 gallons of fuel. They further testified that on the night in question the crew had offloaded the gasoline tanks of both barges at the Amoco dock, then traveled some distance up the Intracoastal Canal and pumped fuel from the slop tanks into defendant’s truck. One crew member testified he had received $1,700.00 cash money from the captain of the tug in payment for this transaction. The second crew member testified he had received $300.00 from the tug captain for the same transaction.

During the time the truck was impounded, the troopers noticed a liquid was leaking from the truck. The manager of the wrecking yard called the troopers, who came out and washed down the area to minimize any danger of fire. After about three days, the troopers returned the gasoline to Amoco, as the situation had become very dangerous because of the loaded truck sitting idle in the wreck yard.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that his conviction should be set aside as the state failed to respond to his request for discovery, arguing that failure to furnish Brady (infra) material to defendant upon his request denied to defendant his constitutional right to a fair trial. Defendant bases his argument in brief on the holding in Brady v. Maryland, 373 U.S. 83, 93 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the disclosure of evidence favorable to an accused upon request where such evidence is material either to the guilt or to the punishment of defendant.

The record shows that defendant filed a motion for discovery on June 16, 1982, following his arrest in March of 1982. On March 22,1983, defendant filed a motion to dismiss on the grounds that the state had failed to respond to defendant’s motion for discovery; this motion to dismiss was denied. Defendant then applied for writs to the Supreme Court, arguing that he was denied his right to a fair trial when the state returned the allegedly stolen gasoline to its owner, Amoco, thus denying defendant access to evidence that was possibly exculpatory. Writs were denied on the ground that defendant had adequate remedy on appeal.

The right to be protected against the prosecutor’s failure to reveal its possession of exculpatory evidence is founded on the due process clause of the U.S. Constitution and is designed to assure a fair trial. Brady v. Maryland, supra. In this case, the defendant’s motion for discovery was a “general request” and falls within the third category of evidence to which the Brady rules apply as set forth by the Supreme Court in U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). If a general request is made for exculpatory materials, a conviction will only be overturned if the omitted evidence creates a reasonable doubt about the guilt of defendant that did not otherwise exist. State v. Prudholm, 446 So.2d 729 (La.1984).

Discovery in criminal cases is regulated by the Louisiana Code of Criminal Procedure. LSA-C.Cr.P. 718 provides that, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to. inspect, copy, examine, test scientifically, or photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies of portions thereof, which are within the possession, custody or control of the state, and which are favorable to the defendant and which are material and relevant to the issue of guilt or punishment or are intended for use by the state as evidence at trial. However, the prosecutor has no constitutional duty to make a complete and detailed accounting of all police investigative works on a case to defense counsel. U.S. v. Brown, 628 F.2d 471 (5th Cir.1980), rehearing denied, 633 F.2d 582 (1980). Failure of the state to comply with discovery procedures does not automatically require reversal; the court will examine the circumstances to determine whether defendant was actually prejudiced by the non-disclosure. State v. Vacarro, 411 So.2d 415 (La.1982).

Even assuming there was a violation of LSA-C.Cr.P. article 718, when the state failed to respond to defendant’s motion for discovery, the record shows that defendant did not avail himself of the sanctions set forth in LSA-C.Cr.P. 729.5. He did not object to the admission into evidence of the results of scientific tests performed by the state on the samples of gasoline, nor did defendant request a mistrial, a continuance or recess. Further, at trial, defendant was given every opportunity to cross-examine the persons who conducted the tests on the samples taken from defendant’s truck, and to present his own evidence to the jury.

Moreover, when defendant filed his motion for discovery, the contents of the trailer truck had been returned to its rightful owner, Amoco Oil Company, because of the highly dangerous situation created by impounding and storing several thousand gal-Ions of gasoline in an old tank truck that was leaking. There is no showing of bad faith on the part of the state nor does defendant so allege.

From the testimony adduced at trial, the results of the scientific tests of the contents of defendant’s truck cannot be said to be exculpatory to defendant, as they indicated that defendant’s truck contained clear gasoline, not the residue from the slop tanks on the shipping barges, as contended by defendant. Thus, even had the state responded to defendant’s motion for discovery, the material discovered would not have been of any help to defendant’s position.

In brief, defendant does not allege which specific evidence that was denied to him would have been favorable to his defense, only that he has been denied the opportunity to develop certain defense evidence which would have been relevant, material, important, crucial and not cumulative to his case. We find this to be highly speculative, and the mere possibility that tests might have produced favorable results is insufficient to prejudice defendant. See State v. Robinson, 386 So.2d 1374 (La.1980). We cannot say defendant was denied his right to a fair trial in this instance.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the trial court erred when it overruled defendant’s motion for new trial based on the grounds that the state failed to prove beyond a reasonable doubt an essential element of the crime, that the property stolen had a value over $500.00. Further, defendant argues that, because the state has failed to prove an essential element of theft, he is entitled to have his conviction set aside and a judgment of acquittal entered on the record.

In State v. Korman, 439 So.2d 1099 (La. App. 1st Cir.1983), this Court held that only the weight of the evidence can be reviewed in a motion for new trial under LSA-C. Cr.P. 851; the sufficiency of the evidence is reviewable under LSA-C.Cr.P. 821. However, because defendant herein utilized an improper motion, he will not be barred from having the evidence received at his trial reviewed for sufficiency under LSA-C. Cr.P. 821 because the relief defendant seeks is in fact a judgment of acquittal; not a new trial. See State v. Allen, 440 So.2d 1330, 1337 (La.1983), concurring opinion by Justice Lemmon.

LSA-C.Cr.P. 821 incorporates the standard for reviewing sufficiency of evidence that was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): whether the evidence, viewed in the light most favorable to the prosecution, will support a finding of guilt beyond a reasonable doubt.

Defendant herein was convicted of theft of gasoline having a value of over $500.00 in violation of LSA-R.S. 14:67.

Upon review of all the evidence received at trial, we conclude that sufficient evidence has been presented by the state to prove defendant misappropriated approximately 6,000 gallons of clean usable gasoline, both leaded and unleaded, without the consent of the owner, with the intent to permanently deprive the owner thereof. In addition, the testimony of two eye witnesses to the theft, Jeffrey Gainey and Sebastian Roceafort, who testified that they received $1,700.00 and $300.00 respectively, for their part in the transaction, was sufficient to sustain a finding that the value of the stolen property exceeded $500.00.

Considering all reasonable inferences to be drawn from testimony and evidence in the record, under the standard set forth in LSA-C.Cr.P. 821, we are convinced that there is sufficient evidence from which a jury could have concluded beyond a reasonable doubt that defendant herein was guilty of the offense charged.

There is no merit to this assignment of error.

The conviction and sentence are affirmed.

AFFIRMED.

      . LSA-C.Cr.P. 729.5:
      "Art. 729.5. Failure to comply; sanctions
      A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.
      B. In addition to the sanctions authorized in Part A hereof, if at any time prior or subsequent to final disposition the court finds that either the state through the district attorney or assistant district attorney or the defendant or his counsel has wilfully failed to comply with this Chapter or with an order issued pursuant to this Chapter, such failure shall be deemed to be a constructive contempt of court."

      . Defendant did file a motion for dismissal, which is specifically prohibited under LSA-C. Cr.P. 729.5.