text:
    Sharon HOFFMAN, Plaintiff-Appellee, v. CRAFTWORLD INTERNATIONAL, INC., Defendant-Appellant.
    No. 84-115.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, for defendant-appellant.
    Laird & Buck, James M. Buck, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

Plaintiff, Sharon Hoffman, instituted this suit against defendant, Craftworld International, Inc., seeking the dissolution of a written contract entered into by the parties and the return of all monies paid by plaintiff to Craftworld pursuant to the contract. In addition, plaintiff sought attorney’s fees and costs of the proceeding. After hearing the evidence, the trial court found that Craftworld had breached the contract and rendered judgment dissolving the contract and rescinding the sale of machines and supplies and ordering Craftworld to refund the purchase price subject to a credit for profits earned. Craftworld has suspensively appealed. We affirm.

FACTS

In July 1982, plaintiff, in response to an advertisement in the Alexandria Daily Town Talk, began to negotiate with Small Business Development Company, a division of Craftworld International, Inc., to purchase an engraved sign and rubber stamp business for a purchase price of $7,995.00. The advertisement plaintiff had responded to stated that there was no selling involved and that the company would provide all the training needed.

Plaintiff met with a representative of Craftworld who demonstrated the machines to make the products and showed her samples of the finished products consisting of rubber stamps and engraved plastic signs. According to plaintiff, the representative stated that, in return for her initial investment of $7,995.00, Craftworld would sell her machines to make the products, would sell her supplies, would train her to operate and maintain the stamp and sign machines, and would secure for her twenty retail sales outlets where she could sell her products. A written contract was signed on July 29, 1982, and provided in part:

“Training: As additional consideration for the purchase price, seller will provide on-the-site training, relating to equipment, operation, layout, and forming procedures.
“Retail Sales Outlets: As further consideration Seller will secure twenty (20) original sales outlets, during the period of on-the-site training. Upon acceptance of said sales outlets, the purchaser assumes all responsibility for maintaining and servicing said outlets.”

In September 1982, Craftworld shipped to plaintiff the machinery and supplies listed in the contract and also sent a representative, Mr. Jeffrey Wilson, to train plaintiff in the making of rubber stamps and engraved signs. During this training period, Mr. Wilson also had the duty of securing twenty retail sales outlets for the sale of the products to be made by the plaintiff. At the conclusion of the training period, Mr. Wilson presented plaintiff a list of twenty retail sales outlets in the geographic area which he claimed he had secured for the sale of plaintiffs products.

Upon completion of the training period, Mr. Wilson departed and plaintiff prepared to do business. Two weeks went by and plaintiff had not been contacted by any of the stores, listed as retail sales outlets, to place orders for plaintiffs products so she began to contact them. At that time she found that many of them did not have price lists, brochures, or displays and that some had never agreed to be sales outlets for her products. Further, plaintiff found other outlets had only agreed to display the rubber stamps and refused to be an outlet for her engraved sign business.

Plaintiff notified Craftworld of this situation and demanded her money back. Craft-world then offered to return and establish other retail sales outlets for plaintiff but she refused because she felt that too many of the large office supply and stationery stores in her geographic area had already refused to serve as outlets and therefore the business could not succeed. This suit followed.

Craftworld alleges that the trial court erred in dissolving the contract.

At the trial Mr. Wilson testified that he had personally contacted all of the twenty businesses that had agreed to serve as a retail sales outlet for plaintiffs products. However, various witnesses involved in those businesses testified that they had never agreed to be retail sales outlets for plaintiffs products. These witnesses included Mr. Robert Cowart, the owner of Cowart’s Printers; Mr. Thomas Spangler of Louisiana Offset Printers; Mr. William Ozier of the Jones Office Equipment Company, Mr. Calvin Price of Jordan Printers, and Mr. Beck of the Baptist Book Store.

The trial judge, in his reasons for judgment, stated in part:

“However, the Court finds that Small Business Development Company or Craftworld International, Inc. certainly, without any doubt whatsoever in this Court’s mind, breached the terms of the contract that they entered into with Mrs. Hoffman. The principal motive and cause for entering the contract was the fact that the defendant had guaranteed by the specific terms of the contract that she would have a minimum of twenty original sales outlets for the product. The truth of the matter is that she only had a very few, maybe five or six total, in which the outlet would handle all of the products that the company lead Mrs. Hoffman to believe that she could sell.”

Where there is conflicting testimony the reasonable evaluation of credibility made by the trial court should not be disturbed upon appellate review unless manifestly erroneous. See Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Ortego v. Lebert, 406 So.2d 253 (La. App. 3rd Cir.1981).

Craftworld appeals from the adverse judgment in the trial court seeking enforcement of the agreement, on the ground that the contract contains a nonrescission clause, and also urging that the circumstances do not justify a dissolution of the contract.

The issue presented by this appeal is whether the trial judge was correct in concluding that the contract should be dissolved because of error in the principal cause or motive for making the contract which would invalidate plaintiff’s consent to the contract.

In Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir.1975), our court stated:

“LSA-C.C. Article 1819 provides that there is no contract where consent thereto has been produced by error. Article 1820 provides that error is of two kinds, error of fact and error law. Article 1821 states: ‘That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.’ Article 1823 provides in part that error of fact invalidates a contract where the error ‘was a principal cause for making the contract.’ Article 1826 states that error (of fact) as to the principal cause of the agreement does not invalidate a contract unless the other party knew or should have known it was the principal cause.” Savoie v. Bills, 317 So.2d 249, 255 (La.App. 3rd Cir.1975).

Jurisprudence under these code articles has established the rule that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause. Marcello v. Bussiere, 284 So.2d 892 (La.1973); Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950); Carpenter v. Williams, 428 So.2d 1314 (La.App. 3rd Cir.1983); Ortego v. Le-bert, 406 So.2d 253 (La.App. 3rd Cir.1981); O’Neal v. Cascio, 324 So.2d 539 (La.App. 2nd Cir.1975); North Development Company, Inc. v. McClure, 276 So.2d 395 (La. App. 2nd Cir.1973); Jefferson Truck Equipment Company, Inc. v. Guarisco Motor Company, Inc., 250 So.2d 211 (La. App. 1st Cir.1971) and the authorities cited therein.

We examine the facts herein in order to determine the applicability of these principles of law.

The record reflects that plaintiff was seeking to invest funds in a small operating business to supplement her income from the beauty shop which she ran during the day. She testified that the twenty retail sales outlets for the sale of her products, to be established by Craft-world, were very important to her and that it would be impossible for her to run the business without them. She further testified that securing the twenty sales outlets was a motive for her entering into the contract. Plaintiff stated Craftworld made no guarantees or representation of the amount of money she could expect to make and that she was not influenced to enter into the contract by any representations as to the amount of income she could expect to achieve with the business.

It is obvious from the record that plaintiff’s determining motive for the contract was to secure a profitable business and that the twenty retail sales outlets for the distribution and sale of her products were essential for profitable operation of the business. These outlets were the principal reason why plaintiff felt that this business could succeed as a supplement to her income while operating her beauty shop during the day, and her principal motive for entering into the contract. This principal motive, in our opinion, was either known to the seller or, from the circumstances, should have been known to them.

The trial court found that since plaintiff did not receive the twenty retail sales outlets specified in the contract that there was error in the principal cause of the contract invalidating plaintiff’s consent to the contract. We agree. Craftworld contends that the plaintiff should not be allowed to rescind the contract because of the nonres-cission agreement and that it should be given an opportunity to perform the contract. As we have found there was no contract, since there was an error in the principal cause of the contract invalidating plaintiff’s consent to the contract, we do not reach these issues.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Lionel HUDSON, Appellant.
    No. CR84-399.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    John E. Morton, Führer, Flournoy & Hunter, Alexandria, for appellant.
    Thomas R. Willson, Donald T. Johnson, Asst. Dist. Attys., Alexandria, for appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   FORET, Judge.

The defendant, Lionel Hudson, was charged with driving after having been adjudged a habitual offender, in violation of LSA-R.S. 32:1480, on June 8, 1983 The defendant pled guilty to the charge and was subsequently sentenced to serve two years at hard labor. The defendant has appealed, assigning as error the trial court’s failure to adhere to the sentencing guidelines in C.Cr.P. Art. 894.1 and the excessiveness of his sentence. We affirm the sentence of the trial court.

The trial judge, in imposing the sentence complained of, had the benefit of a pre-sentence investigation for consideration in his determination of an appropriate sentence. The court was unable to give the defendant a suspended sentence due to a previous felony conviction and was greatly impressed by the extent of the defendant’s past criminal record. The judge stated that the pre-sentence investigation report showed that the defendant had either a misdemeanor offense or driving offense every year from 1973 through this offense in 1983. The trial judge noted that the defendant had every opportunity to straighten up, but hadn’t done so; that despite the revocation of his driving privileges, he continued to drive, resulting in the instant charge. The defendant was sentenced to two years at hard labor, which was well within the statutory maximum sentence of five years’ imprisonment.

“... the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).”
State v. Washington, 414 So.2d 313 (La. 1982).

The record of the sentencing hearing shows that the trial judge considered the defendant’s employment status, his marital status, and any situation of financial dependence on the defendant, and it is clear that the trial judge felt that to impose a lesser sentence would deprecate the seriousness of the defendant’s crime.

“The sentencing judge is not required to recite and list every factor in the statute governing sentencing guidelines. State v. Kline, 427 So.2d 1298 (La.App. 2nd Cir.1983).”
State v. Moss, 438 So.2d 1283 (La.App. 3 Cir.1983), writ denied, 443 So.2d 588 (La. 1983).
“When we find that the sentencing guidelines have been adequately considered, our standard of review is stated as follows:
‘[a] sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La. 1979); State v. Sepulvado, [367 So.2d 762 (La.1979) ] supra. The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).’
State v. Smack, 425 So.2d 737, 740 (La. 1983).”

State v. Brewer, 436 So.2d 631 (La.App. 3 Cir.1983), writ denied, 440 So.2d 148 (La. 1983).

We find that the record provides an adequate basis for review and constitutes adequate compliance with C.Cr.P. Art. 894.-1, and we do not find the sentence imposed so disproportionate to the crime committed as to shock our sense of justice.

Accordingly, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

      . LSA-R.S. 32:1480 provides:
      "§ 1480. Driving after judgment prohibited; penalty
      A. It shall be unlawful for any person to operate any motor vehicle in this state while the order of suspension prohibiting the operation remains in effect. Any person found to be a habitual offender under the provisions of this Chapter who is thereafter convicted of operating a motor vehicle in this state while the order of suspension prohibiting such operation is in effect, shall be punished by imprisonment for not less than one year nor more than five years.
      B. For the purpose of enforcing this Section, in any case in which a person is charged with driving a motor vehicle while his license, permit, or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing such charges shall require the district attorney to determine whether such person has been adjudged a habitual offender and by reason of such judgment is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that such a person has been adjudged a habitual offender, he shall cause the appropriate criminal charges to be lodged against that person.”


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Patrick Danny THOMAS, Jr., Defendant-Appellant.
    No. CR 84-520.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      M. Joy Clemons, Gray, Clemons & Spru-el, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELYERTON and KNOLL, JJ.
   DOUCET, Judge.

Patrick Danny Thomas was tried by a jury of twelve persons and found guilty as charged of two counts of armed robbery. A sentencing hearing was set for March 23, 1984. At that time, the State of Louisiana, through the Calcasieu Parish District Attorney’s Office, filed a Habitual Offender Bill against the defendant alleging that he was a fourth felony offender under the provisions of La.R.S. 15:529.1.

At the hearing, it was revealed that the defendant had been convicted on February 13, 1978 of burglary, theft, and simple criminal damage to property; on June 21, 1982 of receiving stolen things; and on January 23, 1983 of simple burglary. The defendant admitted that he had been convicted of these offenses. The Honorable L.E. Hawsey, Jr. found the defendant to be a fourth felony offender and sentenced him under the terms of La.R.S. 15:529.1 to 99 years with the Department of Corrections on each count of armed robbery, the sentences to run consecutively. The defendant appealed urging two assignments of error.

The first assignment of error was abandoned by the defendant in his brief. Consequently, it will not be considered.

The defendant argues in his remaining assignment of error that La.R.S. 15:529.1 as applied to this case violates the La. Constitution’s prohibition against cruel and unusual punishment and provides no standards for review by a higher court. As a result, the defendant argues, the mandatory sentence required by the provisions of La.R.S. 15:529.1 negates the discretion granted to the trial judge in particularizing the sentence to the.offender and the offense committed, as required by La.C.Cr.P. art. 894.1.

The courts of this state have consistently upheld the constitutionality of La.R.S. 15:529.1. In State v. Lawson, 410 So.2d 1101 (La.1982), the court upheld a sentence imposed under the terms of the habitual offender statute in the face of an argument similar to that before the court in this case. The defendant argued that the mandatory sentence imposed by the trial judge under R.S. 15:529.1 was in direct conflict with La.C.Cr.P. art. 894.1, which requires that the sentence be particularized to the offender and the offense committed. He further argued that the mandatory sentence provision inhibited the discretion of the trial judge granted by La.C.Cr.P. art. 894.1.

The Supreme Court held in Lawson that:

“R.S. 15:529.1 provides enhanced penalties for multiple offenders based on repetition of criminal conduct, and is a valid limitation on the sentencing considerations listed in C.Cr.P. art. 894.1. Multiple offender statutes have consistently withstood constitutional scrutiny. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) and State v. Lee, 364 So.2d 1024 (La.1978). This court upheld R.S. 15:529.1 against attacks that it deprived the trial judge of control over sentencing in State v. Badon, 338 So.2d 665 (La.1976) and State v. Ugarte, 176 La. 54, 145 So. 266 (1932).”

The U.S. Supreme Court has affirmed the overriding interest of the individual states in applying recidivist, or habitual offender statutes. In Rummel v. Estelle, 445 U.S. 263,100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the court upheld a mandatory life sentence imposed under a Texas recidivist statute on the grounds that it did not constitute cruel and unusual punishment under the 8th and 14th amendments. The court explained the validity of such statutes:

“The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”

Patrick Danny Thomas committed four felonies within a five-year period. These repeated offenses show that more lenient sentences have not been effective in the past, and a great risk that he will commit further offenses. Therefore, the courts are not required to treat him as though this was his first offense. Given his four felony offenses, the trial judge was entitled to place on Thomas, “... the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.” Rummell v. Estelle, supra.

Accordingly, we hold that the two consecutive 99-year sentences imposed on the defendant are not a cruel and unusual punishment. We affirm the sentence and conviction.

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. David Joseph MILLER, Defendant-Appellant.
    No. CR83-529.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Claude R. Sledge, Asst. Dist. Atty., Many, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Defendant pleaded guilty to two counts of issuing worthless checks in violation of LSA-R.S. 14:71. The amounts in each of the two counts placed the violations within the penalty range of LSA-R.S. 14:71(D) providing for a maximum of two years imprisonment, or a fine of $2,000, or both. On May 12,1983, defendant was sentenced. He appealed, contending there was noncompliance with La.C.Cr.P. art. 894.1, the sentencing guidelines statute, and that the punishment was constitutionally excessive.

We remanded for resentencing, 441 So.2d 830 (La.App. 3rd Cir.1983), because the sentence was unclear and we were unable to determine whether there were two one-year sentences to run consecutively, or two two-year sentences to run consecutively, and because, further, there was no compliance in the record with the sentencing considerations of C.Cr.P. art. 894.1.

On remand, the sentencing judge made it clear that it was his intention to impose, and he then actually imposed, consecutive two-year sentences for each conviction, to-talling four years at hard labor in the custody of the Louisiana Department of Corrections. At this sentencing, conducted on January 25, 1984, the court, in compliance with C.Cr.P. art. 894.1, stated for the record the considerations taken into account and the factual basis therefor in imposing the sentences.

The case is again before us on appeal, appellant’s contentions being, again, that there was noncompliance with the sentencing guidelines, and that there was an excessive total sentence.

Finding no merit to either of these assignments, we affirm the sentences. The record shows that Miller was charged by a bill of information with 13 misdemeanor counts of issuing worthless checks over a span of time from October 17, 1980, to January 29, 1981, about three and a half months. This bill of information bore number 30,365 on the docket of the Eleventh Judicial District Court.

By a separate, earlier bill of information, number 28,579, defendant was charged with issuing three worthless checks. One was a felony check for $145 dated November 24, 1979. The other two were misdemeanor checks dated in September and October of 1980.

The defendant entered pleas to two felony charges based on these bills. One was the $145 felony count in bill of information number 28,579. The other was a charge made pursuant to the authority of LSA-R.S. 14:71(F), which provides that when the offender has issued more than one worthless check in a one hundred eighty day period, the aggregate of the amount of all worthless checks issued during that one hundred eighty day period shall determine the grade of the offense. Since the aggregate of the 13 bad checks was more than $100 but less than $500, defendant was exposed to a punishment on that charge of up to two years with or without hard labor, or a $2,000 fine, or both, just as the punishment to which he was exposed under the other felony charge.

The record as made up on remand shows that a presentence investigation was made and a report rendered, and that defense counsel was provided a copy of the report before sentencing. The record reflects that the court advised counsel that if there was anything in the report which defendant desired to traverse, or any evidence he wanted to present at sentencing, an opportunity to do so would be given at the sentencing hearing. Defendant did not attempt to traverse the contents of the report, nor did he offer any evidence of mitigating circumstances at sentencing.

In its explanation of the sentence on remand, the sentencing judge first observed that none of the money had been refunded or paid to those who suffered losses by virtue of the issuance of these worthless checks. Considering that the defendant had entered his guilty plea back in 1982, with the understanding, clearly evidenced on the record, that any consideration of leniency would be conditioned upon his repaying the bad check victims, we think that it was entirely proper for the court to have taken into consideration the fact that defendant made no effort to make restitution in the intervening period.

The sentencing judge went on to explain that the defendant had a substantial prior history of involvement with the criminal law resulting in felony convictions and incarceration over a significant period of time all the way back to 1970. In fact, explained the trial court, the defendant had two prior felony convictions before the present cases, and therefore he was not eligible for probation in either of the two present convictions. The court noted that the defendant’s age of 33 suggested maturity and did not favor a light sentence. The court was also critical of defendant’s employment record. These were the reasons given by the trial court to substantiate the consecutive maximum sentences.

The presentence report fully supports the trial court’s reasons for sentence. As a juvenile, defendant spent time in an Iowa training school for rape. He has a lengthy prior adult criminal record, including two felonies, in three states. Following a suspended sentence and probation for one of these felonies, an auto theft conviction in Texas, defendant’s probation was revoked and, after he served a portion of the sentence for that offense and was released on parole, that, too, was revoked. Thus, he has demonstrated no inclination to benefit from previous repeated lenient treatment. Although he has a common-law wife and two small children, his poor work record and lack of interest in employment indicate that his incarceration would work no more a financial hardship on his family than would his presence at home.

We recognize that we are here faced with severe sentences which make our review responsibilities formidable in two respects. On the one hand, there is a special standard of review to which we are held when maximum sentences are imposed. As indicated in State v. Jones, 398 So.2d 1049 (La.1981), maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense, and for the worst kind of offender. Superimposed upon that standard is the review problem raised by the imposition of consecutive, rather than concurrent sentences. Under C.Cr.P. art. 883, where a defendant is convicted of two or more offenses based on the same act or transaction, or constituting part of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. In the present case, the trial court expressly directed that the sentences were to be served consecutively. Although there is no requirement in this statute that the court articulate its reasons for so directing, in State v. Gage, 399 So.2d 1174 (La.1981), there is a strong per curiam suggestion that there be some explanation from the trial court of the availability of concurrent, as opposed to consecutive sentences, under article 883.

Based upon our review of the reasons for sentencing, which we deem a sufficient compliance with article 894.1, and the contents of the presentence investigation report in the record, we find full support for upholding these sentences, not only as to their severity, but also as to the sentencing court’s decision to make them consecutive. The sentences are affirmed.

AFFIRMED.


author: KING, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Calvin J. BROUSSARD, Jr., Defendant-Appellant.
    No. CR84-533.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Ronald Melebeck, Abbeville, for defendant-appellant.
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, Judges.
   KING, Judge.

Defendant, Calvin Broussard, was charged by seven bills of information with seventeen counts of forgery in violation of LSA-R.S. 14:72. Initially, defendant pled not guilty to each count of forgery but, after a plea bargain was reached with the State, he withdrew his previous guilty pleas to nine counts of forgery and then entered pleas of guilty to nine of the original seventeen counts of forgery in exchange for the State dismissing the other eight counts of forgery. The defendant was sentenced on March 13, 1984 for the nine counts of forgery to serve consecutive sentences totaling seven years at hard labor. This sentence consisted of a concurrent three year sentence for three counts; a concurrent two year sentence for three counts; and a concurrent two year sentence for three counts, with the concurrent sentences for each of the three counts to be served consecutively. A motion to review sentence was filed by the defendant but, after a hearing, the court refused to modify its original sentence. Following the court’s failure to modify the sentence, the defendant perfected this appeal. We affirm.

"Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
"Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
"Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both."

On appeal, defendant’s assignments of error present two issues for our determination:

(1) Whether the trial judge failed to adequately state the reasons for imposing the sentence totaling seven years in accordance with LSA-C.Cr.P. art. 894.1; and
(2) Whether defendant’s sentence is excessive.

ASSIGNMENTS OF ERROR

Defendant contends that his cumulative sentence of seven years at hard labor for the nine counts of forgery, involving nine checks totaling approximately $800.00, is an excessive punishment in violation of Art. I, § 20 of the 1974 Louisiana Constitution. The penal provision of LSA-R.S. 14:72 provides in pertinent part:

“Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”

Clearly, defendant’s sentences, as to each count, fall within the low range of sentences which might have been imposed within the statutory limits of up to ten years on each count. However, the sentences may still be reviewed by this court for excessiveness. State v. Cox, 369 So.2d 118 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).

In Cox and Se-pulvado, supra, the Louisiana Supreme Court held that, although a sentence is within the statutory limits, it may nevertheless constitute an excessive sentence. In addition, the trial judge must comply with the mandatory requirements of LSA-C.Cr.P. art. 894.1, individualizing the sentences by stating for the record the considerations taken into account and the factual basis thereof. State v. Jones, 381 So.2d 416 (La.1980). See also, State v. Smith, 446 So.2d 563 (La.App. 3rd Cir. 1984).

The trial court need not articulate every aggravating and mitigating circumstance under LSA-C.Cr.P. art 894.1 if the record reflects that it has adequately considered the guidelines in particularizing the sentence to the offender. State v. Gulden, 399 So.2d 194 (La.1981), cert. den., 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). State v. Sergon, 449 So.2d 193 (La.App. 3rd Cir.1984), and the cases cited therein; State v. Smith, supra.

Thorough review of the record reveals consideration by the trial court of the provisions of LSA-C.Cr.P. Art. 894.1 at the time of sentencing defendant. The trial judge articulated that the court “... does not give a suspended sentence because of his great propensity to commit this crime. Nine that he has pled guilty to, and of course others that have been dismissed”; that, “The court is convinced he is in need of correctional treatment and should be placed in an environment where maybe he can be rehabilitated”; and, that “Additionally, I think to give a lesser sentence or sentences would deprecate the seriousness of this crime to the economic community.” See LSA-C.Cr.P. Art. 894.1(A)(1)(2)(3).

At the post-sentence hearing to review the sentence, held on April 9, 1984, the defendant contended that the head injury he suffered in an accident on an offshore drilling vessel in 1978 was a substantial ground tending to excuse or justify his criminal conduct, though failing to establish a defense, and to justify imposition of a suspended sentence. See, LSA-C.Cr.P. Art. 894.1(B)(4). The trial judge, at the hearing to review the sentence, listened to all of the evidence involving the defendant’s injury and found that there was nothing in the record or the medical reports in evidence that would indicate that the defendant’s injuries would create impulsiveness on his part to commit forgery. Therefore, we hold that the trial judge’s articulated considerations under LSA-C.Cr.P. Art. 894.1 and other factual reasons given by the trial judge at the hearing on defendant’s Motion To Review Sentenr 3 are sufficient to uphold the sentences originally imposed. The consecutive sentences for some of the charges do not appear to be excessive for nine counts of forgery, when one considers that the defendant could have received up to a total of ninety years at hard labor, and do not therefore constitute an abuse of the wide discretion accorded a trial judge in the imposition of sentences within the statutory limits. State v. Jones, supra; State v. Smith, supra. Although it appears that the offenses were committed within a short period of time, there is no evidence that they were part of a common scheme or plan. LSA-C.Cr.P. Art. 883. In view of the eight similar charges against the defendant which were dismissed as a result of the plea bargain, the sentences imposed in this case, which were ordered to be served consecutively to the other sentences, are not apparently excessive. Even when a trial judge fails to substantially comply with LSA-C.Cr.P. Art. 894.1, we will not remand for re-sentencing unless the sentence is clearly excessive. State v. Jones, supra; State v. Smith, supra.

Accordingly, we find no justifiable reason or purpose to remand defendant’s case for re-sentencing.

For the above and foregoing reasons, the defendant's sentences are affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs. For the reasons which I have advanced many times heretofore — we should not be made to review sentences for excessiveness unless they go beyond the statute of limitations.

      . LSA-R.S. 14:72 provides:

      . At the date of sentencing on March 13, 1984, the trial judge deferred execution of sentence until March 23, 1984. The record does not reflect any further deferral of execution of sentence by the trial court. The defendant’s Motion To Review Sentence was not presented to and an Order signed by the trial judge until March 27, 1984. A hearing was held on that motion on April 9, 1984. The defendant had thus, presumably, already began to serve his sentence, before the date the Order was signed and before the date of the hearing, and the trial judge would have been without legal authority to amend or suspend the sentence originally imposed. See, LSA-R.S. 15:566.2; LSA-C.Cr.P. Arts. 881, 894. This appeal was taken on April 11, 1984, more than five days after imposition of the original sentence on March 23, 1984, but within five days of the trial court’s refusal to modify the sentence after a hearing on April 9, 1984 on the defendant’s Motion To Review the Sentence. This appeal to review defendant’s sentence is thus not timely as the appeal was not taken within five days of the imposition of the sentence. See, LSA-C.Cr.P. Art. 914. However, as the trial court permitted an out-of-time hearing to review a sentence and this appeal was timely perfected within five days of that hearing, this court will consider this appeal as an out-of-time appeal to review the sentence originally imposed.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Aubrey Ray WILLIAMS, Jr.
    No. CR84-557.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    James Spruel, Jr., Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.

      Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

The defendant, Aubrey Ray Williams, Jr., was charged by an amended bill of information with the crime of simple burglary, in violation of La.R.S. 14:62. On June 22, 1982, a six member jury found the defendant guilty as charged. The court sentenced the defendant, as a habitual offender, to serve twelve years. Defendant now appeals on the basis of one assignment of error.

FACTS

At approximately 9:30 p.m. on September 27, 1981, police were dispatched to respond to a silent alarm coming from the Children’s Clinic. Approximately 45 seconds after receiving the radio dispatch, police arrived at the building and secured it. Investigation revealed that a window next to one of the doors had been broken. There were partially opened drawers and closets inside the building and an unlocked door leading from inside the clinic to the rooftop. The defendant was found face down on the roof behind a skylight with a screwdriver and a pair of channel lock wrenches in his back pocket. His car was parked nearby. Shortly after his arrest, defendant admitted to the arresting officers that he had broken into the Children’s Clinic for the specific purpose of looking for drugs and money. He made a similar statement later that evening when he was brought in to the Lake Charles City Police Station.

Defendant testified at trial that he had parked his car near a trash dumpster to fix the alternator belt and had been using the tools found in his back pocket for this purpose. He said that his cat jumped out of his car and climbed the tree near the building and that he climbed the tree and was on the rooftop looking for the cat.

ASSIGNMENT OF ERROR

Defendant alleges that the State’s evidence was insufficient to support a conviction in that the State failed to establish the essential elements of the crime.

In State v. Mathews, 375 So.2d 1165, the Louisiana Supreme Court adopted the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for reviewing the sufficiency of the evidence required to support a criminal' conviction. That standard is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Jackson standard is used when a conviction involves direct or indirect and circumstantial evidence. State v. Hebert, 444 So.2d 228 (La.App. 1st Cir.1983); State v. Washington, 421 So.2d 887 (La.1982). When reviewing a conviction based solely on circumstantial evidence, it must be determined that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. State v. Oliney, 430 So.2d 1294 (La.App. 1st Cir.1983); State v. Washington, supra; State v. Austin, 399 So.2d 158 (La.1981).

Defendant argues that only circumstantial evidence was used to convict him and that consequently the Austin standard should be used to review his conviction. This argument ignores the fact that the jury found that the defendant confessed committing the crime. A confession is direct evidence. Therefore the Jackson standard should apply.

Simple burglary is defined in La. R.S. 14:62 as:

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein ...”

The elements to be proved by the State are: (1) unauthorized entry into the structure in question by the defendant, and (2) that the defendant had the requisite specific intent to commit a theft or felony therein. State v. Oliney, supra at 1295.

Dr. Unkel, a co-owner of the Clinic testified that neither he nor the other two co-owners had given defendant permission to enter the building. Thus, any entry by the defendant would have been unauthorized. (Defendant denied ever entering the building until escorted there by the officers). Police arrived at the scene less than a minute after receiving the dispatch that the alarm had been set off and promptly secured the building. There was a hole in a window next to the door of the building and the door had been unlocked, giving access to the Clinic. One policeman attempted to climb the tree defendant said he had used to get on the roof and found that it could not be climbed without climbing equipment. Partially opened doors, drawers and closets were found inside the building. The door leading from the Clinic to the rooftop was unlocked. The defendant was found on the rooftop concealed behind a skylight and had in his possession a wrench and a screwdriver. At this time, defendant said nothing to the police about looking for a cat or repairing his car but said he had gone into the Clinic looking for money and drugs.

Specific criminal intent is defined in La.R.S. 14:10 as:

“... (1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982).

In the instant case, we have the confession of the defendant that he entered the building looking for drugs and money. This is the defendant’s own statement describing his state of mind, specifically stating that he had the specific intent to commit a theft in the Children’s Clinic. The opened drawers and closets also indicate that the defendant was looking for something to take, i.e., intended to commit a theft.

Viewed in a light most favorable to the prosecution, we conclude that the evidence in the record is sufficient to support the jury’s finding that the defendant made an unauthorized entry into a structure with the intent to commit a theft therein.

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

AFFIRMED.

      . At trial, defendant did not object to the admissibility of these alleged confessions, but denied that he ever made same.

      . It is the role of the factfinder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluation under the Jackson standard of review. State ex ret Graffagnino v. King, 436 So.2d 559 (La.1983).


text:
    STATE of Louisiana, Appellee, v. David H. HUDDLESTON, Appellant.
    No. CR84-593.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Richard D. Michels, Lake Charles, for appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   FORET, Judge.

The defendant, David H. Huddleston, was charged by bill of information with two counts of distribution of marijuana, a violation of LSA-R.S. 40:966 A(l). On April 17, 1984, a twelve person jury found the defendant guilty as charged. The defendant was sentenced to serve three years in the Department of Corrections on each count, with the sentences to run concurrently. The defendant appeals, urging the following three assignments of error:

(1) The trial court erred in not including in its charge to the jury the instructions on entrapment requested by the defendant;
(2) The trial court erred in admitting for its consideration at the sentencing, the “rap sheet” or past criminal record of the defendant; and,
(3) The trial court erred and abused its discretion in imposing an excessively severe penalty of three years incarceration on each count, to run concurrently.

We reverse the conviction and sentence of the trial court.

FACTS

On October 7, 1983, a confidential informant called Calcasieu Parish narcotics officers and informed them that he knew a black male subject who was dealing in marijuana. Officer Grant Granger, the confidential informant, and the latter’s girlfriend drove to Church’s Fried Chicken on Broad and Shattuck Streets in Lake Charles, where they met the defendant. The defendant got into the confidential informant’s car, and they drove to a residence in the'North Lake Charles area. The defendant then exited the vehicle and entered the residence at 1814 Evans Street. The defendant returned to the car and told Officer Granger that the price of a quarter pound of marijuana would be $165.00. Officer Granger gave the defendant a total of $280.00 for the marijuana. The defendant returned to the residence with the money and brought Officer Granger a brown paper bag with a clear plastic bag in it containing a green plant-like material which was later determined to be marijuana.

On October 14, 1983, the same confidential informant called narcotics officers and advised them that he had another drug buy with the defendant. The defendant, the confidential informant and his girlfriend, and Officer Granger again drove to the same residence on Evans Street, where a transaction similar to the first one occurred. On the second occasion, Officer Granger purchased two quarter-ounce bags for $35.00 each. The two bags contained green plant-like material which was later determined to be marijuana.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the court erred in not including the instructions on entrapment, requested by the defendant, in its charge to the jury.

The defendant produced only one witness in his defense at trial, but was able to elicit testimony from the State’s witnesses, on cross-examination, which cast some doubt as to who approached who in these drug buys. The testimony from Officer Granger and the confidential informant, Mitchell Stine, was unclear as to who actually initiated the deal. The testimony indicated that Officer Granger asked the defendant if he could get him a quarter pound of marijuana. The officer testified that the defendant did not approach him and say that he wanted to sell him some marijuana.

The defense moved for an acquittal at the close of the State’s evidence on the basis of the defendant’s entrapment by the confidential informant and the officers involved. The trial court denied the motion, and the defense presented its only witness. LSA-C.Cr.P. Art. 807 states:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” (Emphasis ours.)

In State v. Johnson, 438 So.2d 1091 (La. 1983), the Court stated, at page 1097:

"... the trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Telford, 384 So.2d 347 (La.1980); State v. Marse, 365 So.2d 1319 (La.1978). This charge must be supported by the evidence, however. State v. Telford, 384 So.2d 347 (La.1980); State v. Clement, 368 So.2d 1037 (La.1979).”

In State v. Mead, 377 So.2d 79 (La.1979), the Court stated, at page 82:

“Under provisions of La.C.Cr.P. art. 802 the trial court ‘shall charge the jury as to the law applicable to the case.’ This provision has been interpreted to require the trial judge to charge as to each and every phase of the case arguably supported by the evidence, whether believed by the judge or not. State v. Miller, 338 So.2d 678 (La.1976); State v. Lentz, 306 So.2d 683 (La.1975).”

From our review of the testimonial evidence in the record, we feel that the jurors could have reasonably inferred from the testimony that the defendant may have been entrapped. The issue was a factual one which fell within the province of the jury and should have been decided by the jury. The defense of entrapment was arguably supported by the evidence, and the trial court committed reversible error in failing to charge the jury as requested.

ASSIGNMENTS OF ERRORS NO. 2 and 3

Because we are reversing the defendant’s conviction and remanding for further proceedings, we need not address these assignments of error.

Accordingly, for the reasons assigned herein, the defendant’s conviction and sentence are reversed and set aside, and the case is remanded for a new trial in accordance with law.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Jerry A. DICKERSON.
    No. CR84-601.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Ralph L. Barnett, Gretna, for defendant-appellant.
    Michael Darnell, Asst. Dist. Atty., St. Martinville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

The defendant, Jerry A. Dickinson, entered a plea of guilty to four counts of felony theft, a violation of La.R.S. 14:67 and one count of simple criminal damage to property, a violation of La.R.S. 14:56. These charges resulted from the defendant having been involved in a scheme with other co-conspirators to steal oil field equipment. The value of one of the items stolen was approximately $350,000.00. After a presentence investigation report the trial court sentenced the defendant to seven years at hard labor on each of the theft charges and one year at hard labor on the simple criminal damage to property charge. The court however decreed that all sentences were to run concurrently.

Defendant has appealed and alleges the following specification of error: “The sentence rendered by the honorable trial court is excessive and in violation of defendant’s right to due process and equal protection of the law as specified in the 1974 Constitution of the State of Louisiana, Article 1, Section 2 and Section 20, and Louisiana Code of Criminal Procedure Articles 894.1, 895, and 895.1.”

Initially, we note that the trial court complied with the sentencing guidelines of La. C.Cr.P. Art. 894.1. In imposing the sentence the trial judge specifically stated that he had followed the guidelines from Article 894.1, and we conclude that he did. The trial judge further gave extensive reasons for imposing the sentence. Our review of the record satisfies us that the trial court did not abuse its discretion or impose constitutionally excessive sentences.

As to determining what is excessive punishment under the United States’ Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20, of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir. 1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado, and Goodman, supra; State v. Forshee, 395 So.2d 742 (La.1981).

The trial judge having the benefit of a presentence investigation report determined that the defendant had previously been convicted of a felony under the laws of the State of Mississippi. The court also pointed out that the defendant had an additional misdemeanor conviction on his record. The court went on to point out that it was convinced that under- the sentencing guidelines the defendant was in need of correctional treatment which could best be provided by incarceration in an institution. The trial court secondly determined that any lesser sentence would tend to deprecate the seriousness and multiplicity of the crimes which the defendant had committed and further pointed out the significant value of the items that were the subject of the theft.

We are unable to find any manifest error. The trial judge followed the sentencing guidelines and gave extensive reasons for the sentence imposed. Further, the sentence is within statutory limits and follows the defendant’s guilty plea to serious crimes. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons defendant’s sentence for the crimes of felony theft and simple criminal damage to property are affirmed.

AFFIRMED.

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir. 1983), concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169; see also State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir. 1984), concurring opinion at 1282.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. David Allen TRAHAN, Defendant-Appellant.
    No. CR84-643.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Granted April 19,1985.

      Helen G. Roberts, Baton Rouge, for defendant-appellant.
    Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

This is an appeal from a conviction of aggravated rape in violation of LSA-R.S. 14:42 and a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

On October 29, 1981, the defendant, David Trahan, and Rusty Brown were driving on an isolated road near Church Point and stopped at the Bellard residence. Tra-han asked Mrs. Virginia Bellard, whose husband was at work and who was alone with her two-year-old child, for directions and then asked to use the bathroom. She allowed him to enter the house and directed him toward the bathroom. She testified that when he came out of the bathroom he pointed a gun at her and ordered her into the bedroom. She further testified that she did not physically resist as he commanded her to disrobe and engage in sexual intercourse. The defendant testified that he did not have a gun, that she led him into the bedroom and encouraged and consented to having sexual intercourse.

The defendant makes seven assignments of error.

Assignment of error No. 4 is considered abandoned as it was not briefed.

In the first and second assignments of error the defendant argues that the trial court erred in refusing to permit the defendant to cross-examine the victim and her husband regarding the facts and circumstances of a proposal to withdraw charges against the defendant if the defendant would pay them $75,000 and regarding a tape recording of this offer which was disclosed to the district attorney’s office. The defendant argues that he should have been allowed to introduce this evidence to show bias, interest or corruption on the part of the complaining witness. LSA-R.S. 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”

The trial court allowed evidence of a conversation the victim had with her husband regarding such an offer, but did not allow her to be cross-examined as to whether she knew that such an offer had been made or whether the tape of the offer to the defendant’s father had been played for her. This was not allowed into evidence on grounds it was hearsay. Even if it was error for the trial court to exclude this evidence, we do not believe the defendant was prejudiced by the ruling. The victim testified that she spoke to her husband about such an offer. Her husband testified he met with the defendant’s father and discussed such an offer. We do not believe any additional testimony on the offer or the tape of the offer would further show hostility, bias, or corruption of the witness. The exclusion of the evidence is not reversible error. Additionally, since defense counsel called Mr. Bellard, the victim’s husband, as a defense witness, he was not entitled to cross-examine or try to impeach him. He was not entitled to impeach Mrs. Bellard by her husband’s testimony because she did not deny any fact showing bias, interest or corruption.

The third assignment of error is that the trial court erred in its refusal to require state witness Kenneth Goss, who was Chief of Detectives of the Acadia Parish Sheriff’s Department, to produce his investigative records and notes of the case. Goss testified from memory and one card with dates written on it. Defense counsel was permitted to see that card. Goss may have refreshed his memory prior to trial by reading over the report he made or reading other records.

The jurisprudence as to production of police reports was outlined in State v. Latin, 412 So.2d 1357 (La.1982), as follows:

“The State is not required to produce police reports of a testifying officer unless'(1) the officer has physical possession of the report on the stand and testified from it. State v. Perkins, 310 So.2d 591 (La.1975); or
(2) the officer testified exclusively from his past recollection recorded even though the officer does not have physical possession of the report on the stand. State v. Tauzier, 397 So.2d 494 (La.1981); State v. Banks, 341 So.2d 394 (La.1976); and
(3) it is established that there is an inconsistency between the officer’s testimony at trial and his report. State v. Carter, 363 So.2d 893 (La.1978).”

Goss did not have his report with him on the stand. He testified from his memory, although he may have read over his report. No inconsistency between his testimony at trial and his report has been established. He was not required to produce his record. There was no error by the trial court.

The fifth assignment of error is that the trial court erred in refusing to recess overnight prior to closing arguments. The granting of a recess is within the sound discretion of the trial judge and will not be reversed in the absence of a showing of an abuse of discretion. State v. Wise, 434 So.2d 1308 (La.App. 3rd Cir.1983), writ denied, 437 So.2d 869 (La.1983). At 5:30 p.m. on the third day of trial the defense counsel moved for a recess until the next day. He argued that he needed more time to prepare his closing argument and that he could not physically continue since he was eighty years old and had not eaten since lunch. The State objected to recessing since the jury had elected to continue into the evening. The trial court denied the recess. A review of the record reveals that during his closing argument the defense counsel was articulate, alert and competent, and defended his client adequately. There is no showing of prejudice to the defendant. The trial court did not abuse its discretion.

In his sixth assignment of error the defendant argues that the court erred during voir dire in its failure to prevent the prosecution from vouching for the credibility of his chief witnesses and denigrating the presumption of innocence and burden of proof. The defendant failed to object at trial to the remarks he claims were prejudicial. Under Article 841 of the Code of Criminal Procedure, “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Since defense counsel did not object during voir dire, he may not object on appeal.

In his seventh assignment of error, the defendant contends the trial court erred in imposing a sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. He contends such a sentence is cruel, unusual and excessive punishment. The trial judge imposed the mandatory sentence for aggravated rape. Once the jury found the defendant guilty of aggravated rape the trial judge had no discretion in sentencing. The trial judge did not err in imposing the sentence.

Since we find that none of defendant’s assignments of error have merit, the conviction and sentence must be affirmed.

AFFIRMED.


text:
    NEWPORT-NICHOLS ENTERPRISES, formerly Newport-Nichols, Inc., Plaintiff-Appellee, v. GRIMES, AUSTIN & STARK, INC., Defendant-Appellant.
    No. 84-1071.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1985.

      Leithead, Scott, Boudreau, Myrick & Richard, Randall E. Roach, Lake Charles, for defendant-appellant.
    McHale, Bufkin & Dees, Louis D. Buf-kin, Lake Charles, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   MOTION TO DISMISS

DOUCET, Judge.

The plaintiff-appellee, Newport-Nichols Enterprises, moves to dismiss the suspen-sive appeal of the defendant-appellant, Grimes, Austin & Stark, Inc., on the grounds that the requirements of Louisiana Code of Civil Procedure Article 4735 have not been complied with.

The plaintiff initiated summary proceedings, under Louisiana Code of Civil Procedure 4731, to evict the defendant from plaintiff’s premises for violating certain terms of its lease, more particularly for failing to obtain insurance. The defendant responded to the rule for eviction with exceptions of lis pendens and improper use of summary process as the plaintiff had already instituted the same action against the defendant by ordinary process.

At the hearing on the rule for eviction, the plaintiff dismissed the original suit causing the court to overrule the defendant’s exceptions. After the hearing, the defendant notified the plaintiff of its intent to seek leave of court to file an answer. The plaintiff did not object and the court granted the leave. The defendant’s answer was filed before the judgment on the rule was rendered. The judgment rescinded the lease and ordered the defendant to vacate the premises within twenty-four hours. The defendant timely obtained a suspensive appeal.

The plaintiff contends that the appeal should be dismissed on the grounds that the requirements of Louisiana Code of Civil Procedure Article 4735 has not been complied with.

Louisiana Code of Civil Procedure Article 4735 provides in pertinent part as follows:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, ...”

The plaintiff contends the defendant did not timely file an answer to the rule for eviction.

There is ordinarily no requirement for an answer to a rule. LSA-C.C.P. Art. 2593. In eviction proceedings, however, LSA-C.C.P. Art. 4735, mandates a sworn answer asserting an affirmative defense as a prerequisite for a suspensive appeal. Article 4735 contains no provision concerning the time for filing the answer. Therefore, the rules applicable to ordinary proceedings govern. LSA-C.C.P. Art. 2596. Vuci v. Nathans, 357 So.2d 561 (La.App. 1st Cir.1978). Under the rules applicable to ordinary proceedings, Louisiana Code of Civil Procedure Article 1001 provides in pertinent part:

“The court may grant additional time for answering.” After the hearing on the rule for eviction, the defendant notified the plaintiff of its intent to seek leave of court to file an answer. The plaintiff did not object and the court granted the leave. The defendant’s answer was filed before the judgment was rendered. Because the court granted additional time for answering, the defendant’s answer was timely for the purpose of applying for a suspensive appeal under Louisiana Code of Civil Procedure Article 4735.

The plaintiff further contends that the answer was not filed under oath.

The defendant’s answer was verified by the attached affidavit of Frank McCutcheon which was taken under oath. Frank McCutcheon is an Executive Vice President for GAMB, Inc., the managing agent for the defendant corporation, and the Assistant Vice President of the defendant corporation who, by a corporate resolution, had the authority to execute the appeal bond for the corporation. Based on these facts it is apparent that Frank McCutcheon had the authority or at least the consent of the defendant corporation to file the answer on its behalf so that a suspensive appeal could be obtained. Therefore, the defendant answered the rule under oath in accordance with Louisiana Code of Civil Procedure Article 4735 as the answer was verified by Frank McCut-cheon’s affidavit.

The plaintiff further contends that the defendant’s answer did not set forth an affirmative defense.

An affirmative defense is one which raises a new matter not covered by the plaintiff’s petition and which will defeat the plaintiff’s demand on its merits, even if the plaintiff proves all of the allegations in his petition. Modicut v. Bremer, 398 So.2d 570 (La.App. 1st Cir.1980).

The plaintiff alleges the defendant breached the terms of the lease by not providing evidence of insurance and seeks a termination of the lease. In its answer, the defendant contends that the lease should not be terminated because it made good faith efforts to comply with the lease and because the breach of failing to furnish evidence of insurance is immaterial. The defendant has cited cases where, under the doctrine of judicial control, technical violations of a lease contract did not warrant the dissolution of the lease and good faith efforts to comply with the terms of the lease prevented its dissolution.

Edwards v. Standard Oil of Louisiana, 175 La. 720, 144 So. 430 (1932); Brewer v. Forrest Gravel Company, 172 La. 828, 135 So. 372 (1931); Atkinson v. Richeson, 393 So.2d 801 (La.App. 2nd Cir. 1981); Housing Auth. of City of Lake Charles v. Minor, 355 So.2d 271 (La.App. 3rd Cir.1977); Arbo v. Jankowski, 39 So.2d 458 (La.App.Orl.1949). Also, those cases point out that lease cancellations are not favored in Louisiana law and that the right to dissolve a lease is subject to judicial control according to the circumstances. The defendant’s defense of judicial control creates an issue of materiality of the breach which is not covered by plaintiff's petition. Also, plaintiffs demand to terminate the lease may be defeated should a court find the breach to be immaterial under the doctrine of judicial control. Therefore, we find the defendant has alleged an affirmative defense to meet the requirements of Louisiana Code of Civil Procedure Article 4735.

Therefore, we find the defendant has complied with all of the requirements of Louisiana Code of Civil Procedure Article 4735 and is entitled to a suspensive appeal.

For the foregoing reasons, the plaintiff-appellee’s motion to dismiss the appeal is denied.

MOTION DENIED.


text:
    Sam Earl GRAY, et ux. v. Charles F. WOOD, Jr., et al.
    No. 55403.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    John C. Ross, Jr., Smith, Ross & Trapp, Corinth, for appellant.
    Duncan Lott, Langston, Lott & Lang-ston, Booneville, for appellee.
   Appeal from Chancery Court, Tishomin-go County; Fred P. Wright, Chancellor.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.


text:
    Hugh FURR and Vivian N. Furr v. Troy M. LEA and Helen J. Lea.
    No. 55332.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    Richard E. Stratton, III, Brookhaven, for appellant.
    Ralph L. Peeples, Hobbs, Hobbs & Pee-ples, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.


text:
    Bronstine P. MILLER v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Ingalls Shipbuilding Division of Litton Systems, Inc.
    No. 54555.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
    William J. Palmer, Pascagoula, for appellant.
    Leo T. Aragon, Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

REVERSED AND REMANDED FOR DETERMINATION OF BENEFITS.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ.


text:
    Emma Jean BIRK v. HUMBOLDT PRODUCTS CORPORATION and Employers Insurance of Wausau.
    No. 55368.
    Supreme Court of Mississippi.
    Jan. 23, 1985.
   Appeal from Circuit Court, Lowndes County; Ernest L. Brown, Judge.

Hal H.H. McClanahan, III, Columbus, for appellant.

Joseph T. Wilkins, III, McCoy, Wilkins, Noblin, Anderson & Stephens, Jackson, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


text:
    SNYDER’S T.V. AND APPLIANCE STORES, INC. and The Home Indemnity Company v. DEPENDENT OF Thomas R. PRICE, Deceased.
    No. 54591.
    Supreme Court of Mississippi.
    Jan. 30, 1985.
    Sam E. Scott, Keith R. Raulston, Heidelberg, Woodliff & Franks, Jackson, for appellant.
    Dixon L. Pyles, Betty B. Tucker, Pyles & Tucker, Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


text:
    John R. GRIFFIN v. NATIONAL SECURITY FIRE AND CASUALTY COMPANY.
    No. 54589.
    Supreme Court of Mississippi.
    Jan. 30, 1985.
    Douglas M. Wright, Tupelo, for appellant.
    Claude F. Clayton, Jr., Mitchell, Esk-ridge, Voge, Clayton & Beasley, Tupelo, for appellee.
   Appeal from Circuit Court, Monroe County; Neal Biggers, Judge.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Mary A. WHITTEN v. Thomas LOWE and Paul J. Ackerman, and Thomas LOWE v. Mary A. WHITTEN.
    No. 55385.
    Supreme Court of Mississippi.
    Jan. 30, 1985.
    W.H. Jolly, Jr., David L. Sanders, Threadgill, Smith, Sanders & Jolly, John W. Crowell, Gholson, Hicks & Nichols, Columbus, for appellant.
   Appeal from Circuit Court, Lowndes County; Ernest L. Brown, Judge.

Jack H. Hayes, Jr., Douglas C. Stone, Columbus, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


text:
    Fray BROWN v. ASSOCIATES COMMERCIAL CORPORATION, et al.
    No. 54598.
    Supreme Court of Mississippi.
    Feb. 6, 1985.
    David 0. Butts, Tupelo, for appellant.
    Jimmy D. Shelton, Tupelo, Larry Spencer, King & Spencer, Richard T. Bennett, Craig M. Geno, Bennett, Lotterhos, Sul-ser & Geno, Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Thomas J. Gardner, III, Judge.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.


text:
    James Edward BRYANT v. STATE of Mississippi.
    No. 55394.
    Supreme Court of Mississippi.
    Feb. 6, 1985.
    L. Arthur Hewitt, Carthage, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.


text:
    Booker T. MILLER, v. STATE of Mississippi.
    No. 55321.
    Supreme Court of Mississippi.
    Feb. 6, 1985.
    G. Jyles Eaves, Eaves & Eaves, Louisville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

CONCURRING: WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, ROBERTSON and ANDERSON, JJ., concur.


text:
    Bettie POLK v. STATE of Mississippi.
    No. 55352.
    Supreme Court of Mississippi.
    Feb. 6, 1985.
    Bettie Polk, pro se.
    Edwin Lloyd Pittman, Atty. Gen., by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; R.L. Goza, Judge.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.


text:
    Charley B. NEWSON v. COAHOMA OPPORTUNITIES, INC., et al.
    No. 54593.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Cleve McDowell, Drew, for appellant.
    M. Lee Graves, Clarksdale, for appellee.
   Appealed from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

Before PATTERSON, C.J., and PRATHER and SULLIVAN, JJ., and SUGG, Retired Justice, for the Court.

AFFIRMED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., HAWKINS, DAN M. LEE, ROBERTSON and ANDERSON, JJ., concur.


text:
    Charles JONES, Sr. v. STATE of Mississippi.
    No. 55442.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Howard Dyer, III, Gaines S. Dyer, Dyer, Dyer & Dyer, Greenville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.

WALKER, ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ.


text:
    Sherry Rerecich Doukas OLSON v. Joakim S. DOUKAS.
    No. 55470.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Roland B. Skinner, North Biloxi, for appellant.
    Harold J. DeMetz, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

REVERSED AND RENDERED.

WALKER and ROY NOBLE LEE, P.JJ., HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., dissents.


text:
    William H. BLANKENSHIP, et ux. v. NATIONAL BANK OF COMMERCE OF MISSISSIPPI, Columbus, Mississippi.
    No. 54594.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Gary L. Geeshn, Columbus, for appellant.
    Stephen C. Edds, Katherine S. Ferguson, Gholson, Hicks & Nichols, Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; William E. Bearden, Jr., Chancellor.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PRATHER, J., not participating.


text:
    Elmer (Mitch) STOCKSTILL v. Carrie D. STOCKSTILL, et al.
    No. 55377.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    G. Gerald Cruthird, Smith, Smith, Tate, Stuart & Cruthird, Picayune, for appellant.
    Gail A. Crowell, Bryan, Nelson, Allen, Schroeder & Cobb, Gulfport, for appellee.
   Appeal from Chancery Court, Pearl River County; Sebe Dale, Jr., Chancellor.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.


text:
    Ignatius John MICELE v. Jane C. MICELE.
    No. 54762.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Garnett Harrison, Gulfport, for appellant.
    Jimmy D. McGuire, Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; Joseph R. Meadows, Special Master in Chancery and William L. Stewart, Chancellor.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


text:
    Patsy PRICE and Judy Price v. BIBLE BAPTIST CHRISTIAN SCHOOL and Ted Mitchell, Principal.
    No. 55042.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    Patricia Champagne, Gulfport, for appellant.
    Walter W. Teel, Tom Wright Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

AFFIRMED.