author: LEMMON, Justice.

text:
    Wayne M. VALLIANT v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. WESTBANK ELECTRIC, INC. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION, et al.
    Nos. 83-C-0020, 83-C-0021.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

      Roger I. Dallam, Greenberg & Dallam, Gretna, James Frederick, Jr., Baton Rouge, for applicant.
    Philip E. James, Jr., Andrew I. Brown, Henican, James & Cleveland, New Orleans, for respondents.
   LEMMON, Justice.

The issue presented in this case is whether the lessor of movable property, which is used in performance of a public works contract, may recover the lease payments from the contractor’s surety under the terms of the surety contract, although the lessor’s claim against the governing authority is excluded from the protection of the statutes relating to Claims of Materialmen and Laborers on Public Works (La.R.S. 38:2241 et seq.). We hold that a public works contractor’s surety, who binds himself (along with the contractor) in the contractor’s bond to the payment of the contractor’s debts to all furnishers of equipment, is liable to pay the claims of lessors of movable equipment used in constructing the project, even though such lessors have no privilege against the governing authority. The fact that the principal contract (between the contractor and the governing authority) does not give rise to a statutory obligation on the part of the governing authority toward a particular claimant does not prevent the separate accessory contract of surety (between the contractor and its surety) from giving rise to a contractual obligation on the part of the surety toward that claimant.

On January 26, 1981, the State of Louisiana, through the Department of Transportation and Development (DOTD), entered into a contract with Pegasus Industries for the construction of a boat launching ramp and a parking area. Balboa Insurance Company was the surety on the contractor’s bond furnished by Pegasus to DOTD.

During the construction, plaintiffs Wayne Valliant and Westbank Electric, Inc. leased to Pegasus certain backhoes and bulldozers which were used in the work performed under the contract. Pegasus defaulted on the construction contract without having paid any of the rental charges to plaintiffs.

On July 10, 1981, plaintiffs filed affidavits of lien and privilege, which asserted that Pegasus had not paid the charges under the rental contracts. Plaintiffs subsequently filed suit against DOTD, Pegasus and Balboa. Neither Balboa nor Pegasus filed an answer, and plaintiffs obtained a default judgment against them in January, 1982.

Balboa appealed timely, contending that a surety may not be held liable for rental charges for movable equipment under the pertinent statutes and that the contractor’s bond was intended to cover only claims within the coverage of those statutes. The court of appeal reversed, holding that La. R.S. 38:2241 et seq. does not grant a privilege to lessors of movable equipment. 424 So.2d 1205. The court further rejected plaintiffs’ alternative argument that La. R.S. 38:2247 accords the plaintiffs a direct action against the surety, without regard to the claims covered by the statutes. The court relied on Mayeaux v. Lamco, 180 So.2d 425 (La.App. 1st Cir.1965), which held that Section 2247 does not enlarge the class of persons entitled to coverage and that the phrase “any person or claimant within the terms of this Part” in Section 2247 restricts recovery on the bond to those persons specified in Section 2242.

We granted certiorari primarily to consider the issue of whether the plaintiffs may recover the amount of their claims against the surety on the bond. 429 So.2d 125.

La.RS. 38:2241 mandates the state, when contracting for certain construction of public works, to require the contractor to furnish a bond for the faithful performance of the contract, with the additional obligation to assure payment by the contractor for:

“(1) ‘all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works’,
(2) ‘transportation and delivery of such materials or supplies to the site of the job by a for hire carrier’, and
(3) ‘furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works’.”

Section 2242 provides that any “person” to whom money is due on the project may, by filing a sworn statement of the amount due him with the governing authority and by recording the statement, make the authority liable for the claim when a payment is thereafter made without deducting the amount of the claim thus served, if the money is due the “person” for:

(1) “doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works”, or for
(2) “furnishing oil, gas, electricity, or other materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental or movable property”. (Emphasis supplied)

Thus, Section 2242 by its express terms excludes plaintiffs, as lessors of movable property, from the category of “any person” who may “file a sworn statement” and thereby trigger the conditional liability of the governing authority. Moreover, the equipment furnished by plaintiffs was neither consumed nor incorporated into the project. See Slagle-Johnson Lumber Co. v. Landis Constr. Co., 379 So.2d 479 (La.1980). The critical inquiry in this case, however, is whether plaintiffs, although excluded from asserting a privilege against the governing authority under the statute, may assert the claim against the contractor’s surety on the statutorily required bond, if the language of the bond exceeds the statutory requirements and encompasses their claims.

Although Section 2241 requires a bond for payment of claims covered by the act (as well as defining such claims and, along with Section 2242, establishing a procedure for filing such claims and for notifying the governing authority), the statutes do not limit the contractor to insuring payment only of those claims covered by the statutes. While the overall purpose of these statutes is to protect certain claimants who contract with the general contractor (but not with the governing authority), the bond is required primarily for the protection of the governing authority. However, nothing in this scheme for statutory protection of certain claimants and for limited liability of the governing authority prevents the contractor from contracting with the surety for payment of additional claimants not covered by the statutes.

Neither does La.R.S. 38:2247 contract or expand the number of claimants who may be covered by a contractor’s bond. The purpose of Section 2247, which expressly recognizes that “any person or claimant within the terms of this Part” has a “right of action on the contractor’s bond”, is to make clear that a claimant who is granted a privilege under the Part against the governing authority is not deprived of his rights against the contractor’s surety, even if the claimant loses his privilege (as by failing to record his sworn statement timely). However, nothing in Section 2247 suggests that the contractor and surety cannot contract to protect other claimants who are excluded from claiming against the governing authority or that any claimant covered by the bond must also be covered by Sections 2241 and 2242 in order to have an action on the bond.

We therefore conclude that plaintiffs, although excluded from the coverage of the statutes, may recover on the bond, if the parties to that contract of surety contracted to assure payment of such claims. This conclusion is consistent with this court’s decision in Construction Materials, Inc. v. American Fidelity Fire Ins. Co., 388 So.2d 365 (La.1980). In that case the plaintiff sold to a highway contractor certain signs, barricades and other items which were used in constructing the public works project, but which were not consumed or incorporated into the project. This court held that the seller, although not entitled to a statutorily protected claim against the governing authority, was entitled to recover against the surety who contracted to pay the contractor’s unpaid workmen and suppliers by executing a bond which exceeded the statutory requirements.

In the contract of surety in the present case, Balboa undertook, for an agreed consideration (a premium which apparently was based on the entire amount of the construction contract, since the bond was written for that amount), the accessory obligation of assuring Pegasus’ performance of its obligations to perform the work and to pay certain workers and furnishers of material and equipment. Since plaintiffs contracted directly with Pegasus, they should have a direct action against Pegasus’ surety, unless their claims are clearly excluded by the contract of surety. This contract of surety, in which Balboa bound itself expressly (along with the principal obligor) to DOTD and to “all sub-contractors, workmen, laborers, mechanics, and furnishers of materials and equipment” for the full amount of the project contract, may reasonably be construed to cover plaintiffs, who furnished directly to the contractor movable equipment necessary to complete the project and who were not paid by the contractor for furnishing this equipment.

The above quoted language (and almost all of the language in the contractor’s bond in the present case) is identical to the language in the contract of surety in the Construction Materials case. However, Balboa points out that this bond, unlike the bond in the Construction Materials case, contained the following additional provision:

“It is expressly understood and agreed by and between the parties to this Bond that the same is given in accordance with Louisiana Revised Statutes of 1950, Title 38, Chapter 10, Sections 2241 and 2248 inclusive”.

Arguably, since the contract of surety, which was executed after the Construction Materials decision, contained this additional language, a different result could be reached in the present case. However, the decision in Construction Materials was based on the express intent of the parties to the surety contract for the surety to assure performance of the contractor’s obligation to pay “furnishers ... of equipment” (as well as to assure payment of other laborers and materialmen and the performance of the contractor’s obligation to the governing authority, who required the bond). Had the parties to the surety contract in the present case intended for Balboa to assure Pegasus’ payment only of those claims covered by the statutes governing public works, the parties could have so stated. But there is no indication in the contract of surety in the present case that the parties intended to assure payment only of those debts incurred by Pegasus on the project for which DOTD would also be contingently liable.

We therefore conclude that Pegasus . and Balboa contracted for Balboa to assure payment of all of Pegasus’ project debts which were encompassed by the language of the bond, whether or not the claims of those creditors were also covered by the statutes relating to public works.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated. All costs are assessed to respondent.

MARCUS, J., dissents.

      . DOTD filed an answer, but that case has not yet been tried.

      . La.R.S. 38:2247 provides in part:
      “Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond.... ”

      .This express exclusion from coverage was added by Act 59 of 1960.

      . There are two contracts involved in a public works project. The principal contract (between the governing authority and the contractor) gives rise to an additional statutory obligation on the part of the governing authority to pay certain of the contractor’s debts under specific conditions. The accessory contract of surety, which is made for the purpose of assuring the performance of the principal contract (La.C.C. Art. 1771), gives rise to an obligation on the part of the surety to assure payment of any or of all the debts of the principal (the contractor), as set forth in the contract. Significantly, the surety contracts to assume payment of the obligations of the contractor, not of the governing authority.

      . We reject Balboa’s argument that a lessor of equipment is not a “furnisher” of equipment. One may furnish equipment to a contractor by sale or by lease, and the latter method of transaction is becoming increasingly important in times of complexity of construction operations and of emphasis on methods of tax savings.


source: Caselaw Access Project

author: WATSON, Justice. LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Nick C. NICHOLSON.
    No. 82-KA-1618.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Carey Schimpf, Tommy Johnson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Richard Goorley, Jeanette Garrett, Shreveport, Asst. Indigent Defender, for defendant-appellant.
   WATSON, Justice.

Defendant, Nick C. Nicholson, was convicted by a jury of the first degree murder of Kelly Ann Gramm, also known as Kelly Ann Weaver, on or about August 10, 1981. LSA-R.S. 14:30. Since the jury could not agree on a sentence, the court imposed life imprisonment without benefit of probation, parole or suspension of sentence. LSA-C. Cr.P. art. 905.8. Defendant has appealed his conviction and sentence, arguing five assignments of error.

FACTS

At the intersection of Jewella Street and Mansfield Road, Shreveport, Louisiana, there is a Citgo Quik Mart where the twenty year old victim was working a shift from 10:00 P.M. until 6:00 A.M. Police Sergeant Lewis L. Jackson, a regular customer, saw Kelly Ann in the store at approximately 1:40 A.M. A security guard, Don Dreher, was with her, but Dreher left a little later. Shortly afterward, Jackson received an alarm from the Shreveport Police Department concerning the Citgo station. A silent holdup alarm had been activated at 1:52 A.M. When Jackson reached the Citgo parking lot, he observed another police unit stopping a red vehicle in the next block.

Officer Gary L. Whitis had been only two blocks from the Citgo Quik Mart when he heard the alarm on his walkie-talkie. Whi-tis arrived on the scene in less than two minutes and observed a red car pulling away from the station. Defendant Nicholson was in the car with blood on his clothes and a cash register beside him on the front seat. Nicholson was given his rights and placed under arrest for armed robbery by Officer Whitis. A folded “buck knife” was taken from his back pocket. (Tr. 454)'.

Meanwhile, Officer Jackson had gone into the Citgo station and found Kelly Ann behind the counter lying on her back covered with blood. There was no pulse. There was a pool of blood near the body and scattered drops on the floor and ceiling. The cash register was missing. Concerned that the occupant of the red car might be armed, Jackson broadcast a warning that the victim appeared to have been shot. Officer Jackson then secured the scene and made photographs.

Officer Allen E. Hall reached the area a little later, and again advised defendant of his rights. Officer Whitis heard him commence and then left to examine the scene of the crime. Nicholson told Hall he understood his rights. Hall asked Nicholson about the gun. Nicholson replied that he had “used a knife”. (Tr. 372) Nicholson had stabbed the girl because: “[s]he would not give me the cash register.” (Tr. 372) In response to another inquiry from Hall, Nicholson said he had been alone during the robbery. When Nicholson later tried to escape from the back seat of the police car, he was “maced” by Whitis. (Tr. 380) Several other police officers arrived and Nicholson was transferred to a car with a security cage.

Nicholson, testifying in his own behalf, admitted he had been told his rights twice, once by each of the two officers. Although the second warning was alleged to be after he had been maced, he “completely” (Tr. 383) or “pretty much understood” (Tr. 384) his rights. Nicholson claimed he was not told he did not have to make any statements. He admitted being questioned about “the gun”, but denied being asked or having ansv/ered any other questions. (Tr. 383)

According to Nicholson, he was scheduled to report for work at 2:00 A.M. that morning. Enroute, he saw a familiar car, stopped to render aid and encountered a casual acquaintance, one Richard (last name unknown). Richard appeared to be “high” on something; he was larger than Nick. (Tr. 716) Richard allegedly borrowed Nick’s knife and then announced his intention of scaring the Quik Stop lady with it. Since Richard knew where Nick lived and threatened him with death, Nick went along in his separate car. After Richard emerged from the Quik Stop, he made Nick go in and get the cash register. Nick saw his knife in the lady’s stomach, pulled it out, grabbed the cash register, and drove away to meet Richard.

The coroner determined that Kelly Ann had sustained a minimum of thirty-nine stabbing wounds. Fibers from Nicholson’s clothing were found on her clothes. Droplets of blood on her chest and on the floor were consistent with Nicholson’s blood tests. Nicholson’s knife was the murder weapon; its broken tip was embedded in the victim’s skull. Nicholson’s fingerprints were on the knife and also on the cash register tray.

Nicholson left drops of blood on the police station floor. At the L.S.U. Medical Center, Nicholson received four stitches for cuts on his left index finger and arm.

Citgo employees started cleaning up the premises about 2:15 A.M., and the Quik Mart was reopened for business at 4:00 A.M.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that he was denied a fáir trial because a rhetorical question by the prosecutor during rebuttal argument falsely implied that he had not told his Richard story to the police.

“Why didn’t he tell the story to the police?” (Tr. 923) was the question.

On the morning of the murder, after he was transported to the Shreveport jail, Nicholson gave an oral statement which was essentially the same as his trial testimony to the effect that Richard killed Kelly Ann. This same story was repeated in a recorded statement on October 10, 1981. Neither statement was introduced in evidence. Counsel’s closing argument for the defense, indicated that Nick had told the police about Richard. The trial court held that the prosecutor’s argument was appropriate rebuttal. LSA-C.Cr.P. art. 774. Consequently, there was no request for an admonition or a mistrial. LSA-C.Cr.P. art. 771.

Defendant argues that the Fifth Amendment protects him from the false implication that he remained silent, relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Defendant also contends that the prosecutor’s false and prejudicial reference deprived him of a fair trial.

Doyle’s prohibition against use of silence for impeachment purposes does not apply to a defendant who has not been induced to remain silent. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). See State v. Kersey, 406 So.2d 555 (La.1981). Thus, there is no Fifth Amendment question presented.

The issue is whether the prosecutor’s implication was so prejudicial that it deprived Nicholson of a fair trial.

The prosecutor may have attempted to give the jury the false impression that defendant’s trial testimony was not what defendant had told the police. As such, the rhetorical question would have been prejudicial. However, the evidence against Nicholson was truly overwhelming. If the prosecutor had curbed his tongué, there is no question that the jury would have nonetheless returned a verdict of guilty. Therefore, the error was harmless. United States v. Hastings, - U.S. -, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); LSA-C.Cr.P. art. 921; State v. Bretz, 394 So.2d 245 (La.1981); State v. Webb, 419 So.2d 436 (La.1982). Compare Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in denying his motion to seal off the crime scene for defense inspection.

On the evening of defendant’s arrest, his counsel ¿sked the trial court to order the crime scene sealed for defense examination. The oral request was made at approximately 6:25 P.M. and a written motion to the same effect was filed the next day, August 11. The trial court concluded that there was no authority for such an order and denied the oral and written motions.

The Quik Stop was open for business and available for examination at approximately 4:00 A.M. on the morning of the murder. Although the premises had been cleaned, they were open to the public and a court order was unnecessary for their examination by the defense. Ordering the Quik Stop sealed for defense inspection that evening would have been pointless. The trial court did not err in refusing to grant the motions.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the trial court erroneously excused a prospective juror, Pauline Martwiek, for cause.

Pauline Martwiek had had a traumatic encounter with the law in connection with an undetailed situation which threatened her son’s life. In her opinion, the assistant district attorney who handled the matter did not do justice and the incident left sears. She did not think she could decide the case independently of her lack of respect for the law, and she might decide contrary to what the law would dictate. She could not be impartial. The episode in question occurred seven years before the jury selection, when another district attorney held office. Pauline Martwiek faints at the sight of blood.

The trial court noted that Ms. Martwick’s answers to rehabilitating questions were qualified by “her body English”. (Tr. 230) Because of doubt about her impartiality and her hypersensitive reaction to blood, the challenge for cause was sustained.

The prospective juror indicated she would not accept the law given to her by the court. LSA-C.Cr.P. art. 797(4). The trial court correctly weighed her “total performance” during the examination. State v. Albert, 414 So.2d 680 at 682 (La.1982). There was no abuse of discretion in excusing this juror for cause.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that the trial court erroneously excused a prospective juror, Faye Robinson, for cause.

Faye Robinson testified that she could not vote for a death penalty, stating: “I couldn’t say that anyone has to go to death. I don’t want to be a part of it.” (Tr. 218) Although she would “never vote for it”, she “probably” could in the case of someone like Adolph Hitler. (Tr. 219) If Charles Manson or Hitler were being tried, she thought she could consider a death penalty.

The trial court concluded that Ms. Robinson could not impose a death penalty and allowed the challenge for cause.

Ms. Robinson indicated that she would vote automatically against capital punishment except in the case of a mass murder on the scale of Adolph Hitler or Charles Manson. There was no abuse of discretion in the trial judge’s conclusion that this disqualified her as a juror. See LSA-C.Cr.P. art. 798(2). In any event, defendant has no ground for complaint because the state failed to exercise one of its peremptory challenges. LSA-C.Cr.P. art. 800; State v. Hillard, 398 So.2d 1057 (La.1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that the trial court erred in allowing into evidence the three inculpatory oral statements made to Officer Hall. Defendant argues that the state failed to carry its burden of showing a knowing and intelligent waiver of his Miranda rights.

According to Officer Hall, Nicholson said he understood his rights. In court, Nicholson virtually admitted that he understood his rights, but denied saying anything other than that he did not have a gun. However, the evidence supports the finding that Nicholson made a knowing and voluntary waiver of his privilege against self-incrimination. State v. Brown, 384 So.2d 425 (La.1980).

This assignment lacks merit.

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

AFFIRMED.

CALOGERO, J., concurs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Perhaps the only way to curb outright prosecutorial misconduct is to reverse convictions in which such tactics are deliberately used. With this reservation, and agreeing with the majority’s observation that the evidence overwhelmingly established guilt, I concur in the conclusion that, despite the deliberately deceptive argument designed to further undermine defendant’s already utterly implausible version, there is no reasonable likelihood that the argument influenced the jurys verdict. See State v. Dupre, 408 So.2d 1229 (La.1982).

      . Officer Whitis asked Nicholson about a gun and understood the reply to be “in the car”. (Tr. 343) A gun was never located and there is no evidence that one was used in the murder.

      . Both officers said he was advised of his right to silence:
      “You have the right to remain silent. Anything you say can or will be used against you in a court of law.. (Officer Whitis, Tr. 341)
      “I advised him he had the right to remain silent, that anything he said would be and could be used against him in a court of law, ....” (Officer Hall, Tr. 395)

      . “Officer Hall knew later on what Nick had told the police had happened about Richard, and Officer Hall decided to come back and get all of that out of the way.” (Tr. 905)

      . LSA-C.Cr.P. art. 774 provides:
      “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      “The argument shall not appeal to prejudice. “The state’s rebuttal shall be confined to answering the argument of the defendant.”

      . LSA-C.Cr.P. art. 771 provides:
      “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      “(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      “(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      “In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

      .In Anderson a defendant was cross-examined about why he did not tell the police the story he recounted at trial. Anderson held that there was no unconstitutional inquiry into post arrest silence because the questions were intended to elicit an explanation for a prior inconsistent statement.

      . On the other hand, the prosecutor may have been asking why defendant did not tell the “Richard” scenario to the police when he was first apprehended.

      . LSA-C.Cr.P. art. 921 provides:
      “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

      .LSA-C.Cr.P. art. 797(4) provides:
      “The state or the defendant may challenge a juror for cause on the ground that:

      “(4) The juror will not accept the law as given to him by the court; or.... ”

      .LSA-C.Cr.P. art. 798(2) provides:
      “It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
      ⅜: # ⅝: ⅜ * ⅝; *
      “(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; or... . ”

      . Defendant relies on Moore v. Estelle, 670 F.2d 56 (5 Cir.1982), but that case involved a capital verdict.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The prosecutor knew that defendant made a statement at the police station blaming Richard for the murder. Nevertheless, he suggested to the jury that defendant’s trial testimony (relating the same version) should be rejected because no such statement had been made to the police after arrest. The only apparent explanation for this argument was to deliberately mislead the jury with a' suggestion based on a premise known to be false.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Carl L. JACKSON.
    No. 82-KA-1369.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., Abbott J. Reeves, W.J. Riley, III, Asst. Dist. Attys., for plaintiff-appellee.
    Wayland Vincent, Crowley, Charles L. Bull, Jr., Welsh, for defendant-appellant.

       Dixon, C.J., and Calogero, J., would grant a rehearing.

   BLANCHE, Justice.

The defendant, Carl Jackson, was indicted for the crime of aggravated rape, a violation of La.R.S. 14:42. Following trial, the jury returned a unanimous verdict finding the defendant guilty as charged. The trial judge sentenced the defendant to life imprisonment without benefit of probation, parole or suspension of sentence.

On appeal to this court, the defendant advances thirteen assignments of error. In this opinion, we treat assignments number 2 through 7. None of the remaining assignments of error present reversible error, and they are governed by clearly established principles of law; therefore, they will be treated in an unpublished appendix which will comprise part of the record in this ease.

Prior to the attack, the victim, aged twelve, was asleep in her aunt’s house in Welsh, Louisiana. During the early morning hours of October 31, 1981, the victim was awakened by the sound of a man entering her room. She immediately recognized the intruder to be the defendant, Carl Jackson. According to the victim’s testimony at trial, the defendant pushed her and threatened to kill her if she refused to disrobe. When she did not undress, the defendant removed her clothes, climbed on top of her and forced her to have sexual intercourse with him. The victim testified that she was frightened and did not cry out. She further stated that she did not observe a dangerous weapon on the defendant’s person.

The victim’s aunt, who was asleep in another room of the house during the time of the offense, testified that the victim came to her bed early in the morning on October 31st and was afraid. The victim would not reveal at that time what had occurred. Before the aunt could go back to sleep, she heard noises in the house and saw a man standing in the archway of her home. She ran next door to awaken her brother-in-law, the victim’s uncle. After the brother-in-law searched the aunt’s house and found no one, the victim informed him that Carl Jackson had attacked her. The brother-in-law telephoned the police.

Police officers investigating the offense discovered no evidence of forced entry into the home, although one door leading outside was found to be unlocked. Blood was observed on the victim’s bed and undergarments. A subsequent physical examination of the victim by Dr. Broussard revealed several lacerations of the victim’s inferior hymen and her vaginal wall. Dr. Broussard testified that the injuries were serious and resulted from forced entry. Specimens taken from the victim’s vaginal area revealed no traces of spermatozoa or acid phosphatase.

Several hours after the police were called to investigate, the defendant was brought in for questioning. During that same day, the defendant gave three separate statements. In one statement, he admitted having sexual intercourse with the victim.

At trial the defendant testified that he did not commit the offense and was out drinking with friends during the time the attack allegedly occurred. Several witnesses testified on his behalf that they were with the defendant during the early morning hours of October 31, 1981.

The jury, obviously disbelieving the defendant’s alibi defense, found the defendant guilty of aggravated rape.

ASSIGNMENTS OF ERROR NOS.

2 THROUGH 7

By these assignments, the defendant contends that the state failed to prove, beyond a reasonable doubt, several essential elements of the crime of aggravated rape, specifically: (1) that the victim and the defendant were not married, (2) that there was in fact sexual intercourse between the victim and the defendant, (3) that the defendant was the person who perpetrated the offense and (4) that the victim was prevented from resisting by threats of great and immediate bodily harm accompanied by the apparent power of execution.

Each of the four contentions assigned as error by the defendant concerns the sufficiency of evidence adduced at trial. This court, in reviewing questions of sufficiency of evidence, is governed by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Sims, 426 So.2d 148 (La.1983); State v. Johnson, 426 So.2d 95, 101 (La.1983). Under Jackson v. Virginia, the reviewing court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789.

The defendant initially argues that the state did not prove beyond a reasonable doubt that the victim and defendant were not married. La.R.S. 14:41 defines rape in part as sexual intercourse with one “who is not the spouse of the offender”. As correctly noted by the defendant, the prosecutor did not ask the victim whether she was the defendant’s spouse. Evidence was presented at trial, however, from which the jury could draw the conclusion that the defendant and the victim were not married. It was established by the state that the victim was twelve years old and was residing with her aunt at the time the rape occurred. The defendant was not a member of the aunt’s household. In addition, when the victim was questioned by the defense counsel as to how she knew the defendant, she replied, “Well, I’ve seen him around.” Counsel then inquired, “That’s it?” and the victim responded, “Yes.” Later in the trial, the defendant himself testified that he had never met the victim prior to October 31, 1981, the date of the rape. With this evidence before it, any rational jury could have concluded beyond a reasonable doubt, that the defendant was not the spouse of the victim. Hence, we find this argument to be without merit.

The defendant next contends that the evidence was insufficient to establish beyond a reasonable doubt that there was sexual intercourse between the victim and the defendant. We find this argument to be meritless. The victim testified that the defendant climbed on top of her and “penetrated” her. Blood was found on her underwear and bedsheets. Dr. Broussard, who examined the victim on the day of the rape, testified that he discovered lacerations of the inferior hymen and vaginal wall. He further stated that there had been forcible entry. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could be convinced beyond a reasonable doubt that sexual intercourse did occur.

Defendant argues that the state failed to prove that he was the person who committed the present offense. More specifically, he contends that the victim’s in-court identification was suspect in view of the poor lighting at the time the rape occurred. We find the defendant’s contention without merit. The victim testified that a light from the kitchen illumined the face of the man who entered the room. She immediately recognized the man to be Carl Jackson, a person she had known prior to the offense. That same morning, she informed her uncle that Carl Jackson had attacked her. When the police arrived, she named the defendant as her assailant. We find any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was the person who raped the victim.

The defendant further argues the prosecution did not prove beyond a reasonable doubt that the force exerted by defendant or the extent of the victim’s resistance was of the degree necessary to convict him of aggravated rape.

The crime of aggravated rape is set forth in La.R.S. 14:42 as follows:

“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.”

As discussed earlier in these assignments, the evidence does establish beyond a reasonable doubt that a rape was committed as defined in La.R.S. 14:41. The evidence shows that the defendant had vaginal intercourse with the victim who is not his spouse and without her consent. The question remains, however, whether the rape was committed under one of the circumstances listed in La.R.S. 14:42.

Subsections (3) and (4) are not applicable to our case. The victim is twelve years old, and there is little evidence that the defendant was armed with a dangerous weapon. As a result, the state was required to prove that the rape occurred either under the circumstance listed in subsection (1) or the circumstance provided in subsection (2).

We first consider whether the rape occurred under the circumstance set forth in La.R.S. 14:42(2), i.e. “where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” Any rational juror could have concluded that the technical wording of subsection (2) was satisfied by the evidence presented in this case. The victim testified that the defendant threatened to kill her. At the time of the attack, she was twelve years old, ten years younger than the defendant. At one point, she attempted to escape, but the defendant grabbed her arm. The victim testified that she was frightened and would do anything the defendant asked.

Although we find the evidence is sufficient to convince a rational jury beyond a reasonable doubt that the express language of subsection (2) of La.R.S. 14:42 was satisfied, this does not end our inquiry. We also must determine whether any reasonable jury, viewing all of the evidence, could find beyond a reasonable doubt that the degree of force employed was sufficient to convict the defendant of aggravated rape as opposed to forcible rape. In State v. Parish, 405 So.2d 1080 (La.1981), we noted that the legal definition of aggravated rape set forth in La.R.S. 14:42(2) was virtually identical to forcible rape. See also State v. Willie, 422 So.2d 1128 (La.1982). The sole distinction between the two crimes is the “degree of force employed and the extent to which the victim resists.” 405 So.2d at 1087. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. Unfortunately, there is no magic formula to determine which acts of coerced sexual intercourse warrant the greater punishment of aggravated rape rather than forcible rape. Each case must be examined on its own facts.

We hold that evidence in this case is sufficient to justify the jury verdict of aggravated rape. The magnitude of the force exerted upon the victim is most clearly evidenced by the injuries she sustained as a result of the attack. Blood was found on her underclothes and her bedsheets. Dr. Broussard testified the defendant was visibly upset when he examined her. She was still bleeding at the time of his examination and her vaginal vault was full of blood. Dr. Broussard found several lacerations of the victim’s inferior hymen and also of her inferior vaginal wall. One laceration of the vaginal wall measured approximately two centimeters long and one and one-half centimeters deep. The doctor termed the victim’s injuries as serious and roughly similar to an episiotomy. Although Dr. Broussard could have stitched the open wounds, he chose not to do so, for he thought it wise not to sedate her. The doctor further stated that the victim was probably a virgin prior to the attack, and he was of the impression that she did not understand what had happened to her.

We also consider the fact that the victim was twelve years old at the time of the offense. The amount of force required by the twenty-two year old defendant to subdue the child was certainly less than the force necessary to overcome the resistance of a mature woman. For these reasons, we conclude that viewing the evidence in the light most favorable to the prosecution, any rational jury could have found beyond a reasonable doubt that the victim was raped under the circumstance listed in subsection (2) of La.R.S. 14:42 with a sufficient degree of force to warrant punishment in the greater degree as aggravated rape.

DECREE

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

      . Two small children, whose approximate ages were two years old and one year old, were asleep in the same bed as the victim at the time of the rape. The victim testified that the two year old child awoke during the attack.

      . Because we find subsection (2) of La.R.S. 14:42 to be applicable, we do not suppress the issue of whether the evidence is sufficient to support the circumstance listed in subsection (1) of the same statute.


author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice

text:
    KARL J. PIZZALOTTO, M.D., LTD. v. Dietrich WILSON.
    No. 82-C-1142.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearings Denied Oct. 7, 1983.

      Roy Maughan, Maughan & Atkinson, Ltd., Baton Rouge, for defendant-applicant.
    W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-respondents.
   DENNIS, Justice.

In this case the trial jury and the court of appeal, 411 So.2d 1150, refused to hold a surgeon liable for removing a woman’s reproductive organs without her consent. We reverse. The evidence presents no reasonable basis for finding that the woman consented either expressly or impliedly to a removal of her reproductive organs. Regardless of the reasonableness of the surgery or its eventual necessity, a physician may not act beyond his patient’s authorization, except when a situation seriously threatens the health or life of the patient. There is no warrant in the record for a determination that the surgeon was forced by such a situation to remove the woman’s female organs before obtaining her consent.

Dietrich Wilson first saw Dr. Pizzalotto in September 1978, complaining of lower abdominal pain that became so severe during her monthly menstrual periods that she was unable to walk. Dr. Pizzalotto’s clinical examination indicated a potential ad-nexal cyst (a cyst in her tubes and ovaries caused by an outside source) or an endome-trioma (an ovarian cyst internally caused by severe endometriosis), in either case complicated by pelvic inflammatory disease. Dr. Pizzalotto prescribed antibiotics in an attempt to decrease the inflammation and pain and to enable a more thorough examination.

Before Ms. Wilson saw Dr. Pizzalotto again, she consulted Dr. Linda Stewart for a second opinion. Dr. Stewart also diagnosed the pain as attributable to a pelvic inflammation and endometriosis, a disease whereby the endometrium, the lining of the uterus, backs up into the uterus, fallopian tubes and ovaries rather than being emptied from the uterus during the menstrual period. Once it backs up, the endometrium passes through the surface of the reproductive organs causing cysts and adhesions that form in reaction to blood irritating the surface of the organs. The adhesions cause the reproductive and other pelvic organs to become attached to one another and increasingly distorted until, if not treated, sterility results. Ms. Wilson was stirred by this explanation to do some independent reading on the subject of endometriosis.

Dr. Pizzalotto next saw Ms. Wilson in November, at which time he obtained her permission to conduct a laparoscopy, which is a diagnostic examination involving insertion of a small telescope through the navel. On the consent to operate form, Ms. Wilson crossed out and initialed provisions indicating an awareness that sterility may result from the operation because, as she explained, she knew that sterility would not result from the diagnostic examination. The laparoscopy enabled Dr. Pizzalotto to confirm the presence of endometriosis and pelvic inflammation, of which he informed Ms. Wilson. However, because of the presence of massive lesions, he was unable to ascertain the extent of her condition. The reproductive organs had adhered to one another and Dr. Pizzalotto’s vision was blocked.

Dr. Pizzalotto then prescribed a laparoto-my, an exploratory operation which involves an incision into the abdomen. Dr. Pizzalotto did not discuss with his patient any alternative method of treatment, or the risk of sterility from this operation. The written explanation provided by the doctor to Ms. Wilson was as follows:

“Dx (1) Pelvic inflammatory disease, marked (2) endometriosis Rec (1) Laparotomy — Lysis of adhesions, Figuration of endometrioma

The doctor wrote on the hospital admission chart the same procedures outlined above, which are exploratory and conservative in nature, and added “probable salpingo-ooph-orectomy,” which is surgical removal of the uterine tube and an ovary. However, Ms. Wilson was not informed of this.

Ms. Wilson signed a standard consent form and the operation was performed. During its course, the doctor found extensive endometrial adhesions much worse than he had anticipated. He felt that the reproductive organs were so severely damaged that Ms. Wilson was sterile. He felt that the failure to remove the reproductive organs would result in pain and infection necessitating more surgery prior to Ms. Wilson’s leaving the hospital. After the assisting surgeon concurred in this finding, Dr. Pizzalotto proceeded to perform a total hys--terectomy and bilateral salpingo-oophorec-tomy, which accomplished a total removal of all of the reproductive organs.

Ms. Wilson became very upset when she learned that a total hysterectomy had been performed. Failure to pay her surgical bill precipitated the litigation now under review.

The decisive issues are whether the facts of this case justify the conclusion that the patient expressly or impliedly consented to the performance of the hysterectomy, or whether a life threatening emergency arose during surgery which authorized the doctor to act without his patient’s consent. Because we resolve these issues in the patient’s favor, and because we agree with the court of appeal’s exculpation of the physician from any breach of negligence or malpractice standards, the other issues considered by the previous courts are preter-mitted.

The doctrine of consent to medical treatment is rooted in the idea that a person has the right to make major decisions regarding his own body. See generally Lacaze v. Collier, 434 So.2d 1039 (La.1983). Justice Cardozo, when on the high court of New York, wrote “Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” Schloendorff v. Society of New York Hospitals, 211 N.Y. 125, 105 N.E. 92, 93 (1914). A surgeon commits a battery on his patient when he undertakes a particular surgical procedure without the consent of the patient or an authorized person, except when an emergency requires immediate surgery for the preservation of life or health under circumstances when such consent cannot be practicably obtained. Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir.), writ den. 362 So.2d 802 (La.1978); Coppage v. Gamble, 324 So.2d 21 (La.App. 2d Cir.), writ den. 325 So.2d 819 (La.1976); Carroll v. Chapman, 139 So.2d 61 (La.App. 2d Cir.1962); Rogers v. Lumbermens Mutual Casualty Co., 119 So.2d 649 (La.App. 2d Cir.1960); 1 F. Harper & F. James, The Law of Torts §§ 3.1-3.3, at 211-20 (1956). An emergency is statutorily defined as a situation wherein, in competent medical judgment, the proposed surgical or medical treatment procedures are reasonably necessary, and a person authorized by statute to consent is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected or could reasonably result in disfigurement or impair faculties. La.R.S. 40:1299.54. Though a battery is generally manifested as an act of hostility, the basis of this battery is not the hostile intent of the physician, but rather the absence of consent on the part of the patient to a treatment that may in fact be beneficial. Thus, an unauthorized operation that is skillfully performed still constitutes a battery. Id. Prosser, Law of Torts, 4th Ed. Ch. 2 § 9. The general rule prohibiting the performance of an operation extends to the performance of operations different in nature from that for which consent was given, and to operations involving risks and results not contemplated. Carroll v. Chapman, supra; Rogers v. Lumbermens Mutual Casualty Co., supra. See generally, Lacaze v. Collier, 434 So.2d 1039 (1983).

It is undisputed that Ms. Wilson did not expressly consent to the removal of her reproductive organs. Furthermore, the argument that she impliedly consented is also without merit. The surgery authorization form contained no mention of a hysterectomy or removal of her reproductive organs. She consented in writing only to a “laparotomy — lysis of adhesions, figuration of endometrioma.” A laparotomy is an exploratory and conservative operation to burn the adhesions which had entangled these organs. It does not entail the removal or destruction of reproductive organs. Ms. Wilson never said anything which signified her consent to a hysterectomy. Dr. Pizzalotto was aware of Ms. Wilson’s strong desire to eventually have children. She had even read extensively on her diagnosed problems in order to more fully understand the nature and risks of the doctor’s recommended treatment. Dr. Pizzalotto admitted that he never discussed with his patient the possible removal of her reproductive organs. The purpose of the operation which Dr. Pizzalotto performed was inimical to the aim of the surgery to which the patient consented. She agreed to a limited conservative operation calculated to save her reproductive organs but was instead subjected to a hysterectomy by which the organs were irrevocably removed. Neither Dr. Pizzalotto’s belief that she was already sterile, nor his opinion that postponing removal would necessitate further surgery before she left the hospital fairly indicate that Ms. Wilson impliedly consented to the immediate removal of these organs.

That the physician may have complied with La.R.S. 40:1299.40 insofar as a “laporotomy-lysis of adhesions, fulguration of endometrioma” is concerned, by informing her of the risks involved and obtaining her consent to these procedures, did not relieve him of his legal duty to inform .her of the risks involved in a hysterectomy, which is a different procedure, and to obtain her consent thereto before it was performed. La.R.S. 40:1299.40 prescribes the legal duty of a physician to inform his patient of the known risks involved in the medical or surgical procedure he proposes to perform. If he fulfills this duty he cannot be held responsible for his failure to follow some different mode of giving notice of the risks involved in the medical or surgical procedure to be performed. However, his compliance with respect to a particular medical or surgical procedure is not a talisman before which all other legal duties disappear. If a physician only informs a patient of the risks of one operation and performs an entirely different surgical procedure, clearly he has not complied with his duty to inform the patient of the danger involved in the surgery actúally performed.

The policy favoring patient consent to medical treatment must not impair a physician’s ability to handle an emergency that immediately and seriously threatens a patient’s health or life. However, this is not a ease where the life or health of the patient was threatened by the failure to immediately remove her reproductive organs. Of the five medical witnesses, none testified that endometriosis was a life-threatening condition or that removal of Ms. Wilson’s reproductive organs was immediately necessary. Dr. Pizzalotto felt that the organs would have to be removed before Ms. Wilson left the hospital, but he did not say that they had to be removed during the course of the exploratory surgery. Dr. Jack Holden, the pathologist who examined Ms. Wilson’s organs, testified that Dr. Pizzalotto may have been criticized heavily for not removing Ms. Wilson’s uterus, tubes and ovaries, but his testimony does not suggest that immediate removal was necessary. Moreover, when asked whether Ms. Wilson’s condition at the time of admission was life-threatening, Dr. Holden testified that to answer would require a clinical judgment on his part which was out of his area of expertise. Dr. Richard Dickey and Dr. Paul Jackson, Jr., the patient’s experts, both testified that endometriosis is not a life-threatening or a critical condition. Dr. Dickey further testified that postponing additional surgery to a later date, until the surgeon can inform the patient of new findings and obtain the patient’s express authorization, is a legitimate treatment option. He testified that some doctors would remove the reproductive organs in a case like the instant one, but only if there is a clear understanding that the patient does not wish to preserve a reproductive function. Dr. Dickey testified that he would personally refuse to remove the reproductive organs without a prior consent. Dr. Jackson was in total accord with this view. He testified that the common practice among physicians is to discuss all treatment options beforehand, and to determine if the patient desired to retain fertility. Faced with a case such as the one at hand, Dr. Jackson stated that he would have listed on the consent form all of the possible treatments, from the simple laparotomy to the performance of a hysterectomy with a bilateral salpingo-oophorectomy, and that he would not have performed the operation unless he had obtained prior consent. Under rigorous cross-examijaation, he stated that he would “leave it in” if he had not discussed the possibility with the patient beforehand.

This evidence clearly establishes that the emergency exception is not applicable to Ms. Wilson’s case. Her condition was not critical or life-threatening. Dr. Pizzalotto did not establish that the immediate further surgery was necessary. His testimony indicates only a possibility, or at most a probability, that additional surgery would be required before Ms. Wilson left the hospital. Drs. Jackson and Dickey testified that, despite the normal risks of further surgery, such as an additional exposure to the risks of anesthesia or infection, the hysterectomy or the bilateral salpingo-oophorectomy should not have been performed at that time without prior consent by Ms. Wilson. La.R.S. 40:1299.54 provides that an emergency which implies consent to a surgical procedure is one in which the procedure is reasonably necessary, a person authorized to consent is not available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected. The evidence conclusively shows that a delay of the total hysterectomy, at least until Ms. Wilson could decide the fate of her organs for herself, would not have jeopardized her life or her health.

By way of a further element of defense as to consent, it has come to our attention that Ms. Wilson signed a blanket authorization at the time of her admission to the hospital. The hospital’s printed form authorized, inter alia, “the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions which the above named doctor or his associates or assistants may consider necessary or advisable in the course of the operation.” However, as Judge Hardy observed of a similar blanket authorization in Rogers v. Lumbermens Mutual Casualty Company, supra, “the above so-called authorization is so ambiguous as to be almost completely worthless, and certainly, since it fails to designate the nature of the operation authorized, and for which consent was given, it can have no possible weight under the factual circumstances of the instant case”. 119 So.2d 652.

Summary

The evidence is clear and convincing that Dr. Pizzalotto removed Ms. Wilson’s reproductive organs without obtaining her implied or expressed consent to that operation. The written instrument, signed by Ms. Wilson signified her consent only to a laparotomy, an exploratory operation, not a total hysterectomy, a radically different surgical procedure involving the removal of her womb and other reproductive organs. It is also clear that no emergency existed which threatened Ms. Wilson’s life or health. Consequently, Dr. Piz-zalotto committed a battery upon his patient for which Ms. Wilson is entitled to recover damages. Ms. Wilson is not entitled to recover damages for negligence or malpractice, however. The previous courts found that the doctor was not guilty of negligence or malpractice and the evidence supports these determinations. The judgments of the trial and appeals courts are reversed and the case is remanded to the court of appeal for a determination of the damages due to Ms. Wilson.

REVERSED AND REMANDED.

LEMMON, J., concurs with reasons.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

Being convinced that an emergency existed in which Ms. Wilson’s consent to the removal of her reproductive organs is statutorily excused or implied at law under La. R.S. 40:1299.54, I dissent for the reasons hereinafter stated. The facts upon which this conclusion is based are as follows.

Dietrich Wilson, a twenty-seven year old unmarried black female, first saw Dr. Piz-zalotto in September 1978 complaining of lower abdominal pain that became so severe during her monthly menstrual periods she was unable to walk. Dr. Pizzalotto’s clinical examination indicated a potential ad-nexal cyst (a cyst in her tubes and ovaries caused by an outside source) or an endome-trioma (an ovarian cyst internally caused by the disease endometriosis), in either case complicated by pelvic inflammatory disease (PID). Dr. Pizzalotto prescribed antibiotics in an attempt to decrease the inflammation and pain caused by PID and to enable a more thorough examination. He then scheduled Ms. Wilson for another visit; she did not keep the appointment and he did not see her again until November.

During the intervening months, Ms. Wilson consulted Dr. Linda Stewart (a doctor who treats females) for a second opinion. Dr. Stewart also diagnosed, and explained to her, that the pain was caused by PID and endometriosis, a disease whereby the en-dometrium, the lining of the uterus, backs up into the uterus, fallopian tubes and ovaries rather than being emptied from the uterus during the menstrual period. Once it backs up, the endometrium passes through the surface of the reproductive organs causing cysts and adhesions that form in reaction to blood irritating the surface of the organs. The adhesions cause the reproductive and other pelvic organs to become attached to one another and increasingly distorted until, ultimately, sterility results.

Ms. Wilson admitted that she had conducted her own research on endometriosis and understood that the disease could result in sterility. When she returned to Dr. Piz-zalotto in November, she gave her permission for a laparoscopy, a diagnostic examination involving insertion of a small telescope through the navel. On the consent to operate form, she crossed out and initialed the provision indicating an awareness that sterility may result from the operation because, as she explained, she knew that sterility would not result from the diagnostic examination. The laparoscopy enabled Dr. Pizzalotto to confirm the presence of en-dometriosis and PID, of which he informed Ms. Wilson, but it did not enable him to ascertain the extent of her condition. The reproductive organs had adhered to one another, making them difficult to see, and adhesions blocked much of Dr. Pizzalotto’s vision.

Since endometriosis is seldom found and rarely severe in black women, particularly those who are young and unmarried, Dr. Pizzalotto did not diagnose or discuss with Ms. Wilson the possibility of sterility resulting from extreme endometriosis. Nor did he prescribe drug therapy because he limited its use to women who wanted to become pregnant in the near future and, moreover, believed that at most it would have alleviated the pain due to cramping during menstrual flow, but it would not have abated the pain due to the endometrioma which required surgical removal. Therefore, a laparotomy, exploratory surgery to remove any adhesions and the endometrioma and thereby at least temporarily restore fertility, was the only treatment proposed by Dr. Pizzalotto. He put his diagnosis and this proposed surgery in writing for Ms. Wilson and invited her questions. She had no questions because, as she testified, she already understood the possible consequences of endometriosis and assumed Dr. Pizzalotto would “just do what was necessary.”

Ms. Wilson signed a consent to operate form in which she agreed to the performance of “operations and procedures in addition to or different from those now contemplated [laparotomy], whether or not arising from presently unforeseen conditions which the above doctor [Dr. Pizzalotto] or his associates or assistants may consider necessary or advisable in the course of the operation.” The form included an acknowledgement by Ms. Wilson that the nature and purpose of the operation and possible alternatives, risks and complications had been fully explained to her. The form also stated, as did the previous one signed by her before the laparoscopy, that “I am aware that sterility may result from this operation. I know that a sterile person is incapable of becoming a parent.” This time, Ms. Wilson did not cross out this provision as she did prior to the previous surgical procedure.

On the admit note advising the hospital of the proposed surgery, Dr. Pizzalotto went beyond his written diagnosis to Ms. Wilson and indicated not only the removal of the endometrioma he suspected was present in one ovary but the removal of one fallopian tube and that ovary. The doctor stated that this would not have resulted in sterility if everything else functioned normally. However, upon surgery, he found that the pelvic infection was beyond repair, Ms. Wilson’s reproductive organs were so distorted by adhesions that she was already rendered sterile, and all reproductive organs would have to be removed prior to her leaving the hospital if he did not do it at that time because the continued and exacerbated infection and pain would have presented serious risks to her health. Before proceeding with the removal of her organs, Dr. Pizzalotto consulted with the assisting surgeon, Dr. Robert Rabalais, also an obstetrician and gynecologist, who agreed to the procedure because Ms. Wilson “was absolutely unable to conceive because she was already sterile, from any doctor’s observation.... [B]oth ovaries were destroyed” and her tubes were completely blocked by adhesions. He considered that the failure to remove her organs would have been a “marked breach of competence” and it would have posed serious health problems for Ms. Wilson, including aggravation of the already tremendous inflammatory reaction and possible rupture of the endometrioma, causing shock and further infection and adhesions.

The hospital pathologist, Dr. John D. Holden, who examined Ms. Wilson’s organs after surgery, found that they were distorted almost beyond recognition and were marked by chronic infection. Hemorrhagic cysts were found within the ovaries; the fallopian tubes were scarred, tortuous and closely adhered to the ovaries, negating any possibility that they were open for conception. Dr. Holden was a member of a professional review committee and, in his opinion, the amount of adhesions present could not have been lysed and he would have brought Dr. Pizzalotto before the review committee if he had only attempted conservative surgery. He also testified that Dr. Pizzalotto would have been “highly criticized by other obstetricians and gynecologists” if he had delayed removal and required second surgery.

Two other obstetricians and gynecologists, Drs. Richard 0. Dickey and Paul Jackson, Jr., testified that they would have attempted drug therapy prior to surgery and included the possibility of sterility resulting from extreme endometriosis in their diagnoses and discussions with Ms. Wilson. Both stated that they would have attempted only conservative surgery. Dr. Dickey considered that this would have given Ms. Wilson a 10-25% chance of conceiving as compared to the 90% chance of a normal woman. Dr. Jackson testified that Ms. Wilson’s chances of conceiving would have been very small. Dr. Dickey admitted that it was also accepted practice to operate first and not use drug therapy and that some physicians would have chosen complete removal in a case as severe as Ms. Wilson’s. Dr. Jackson admitted that if he had removed the organs and his assistant had agreed and the hospital pathologist subsequently confirmed that removal of the organs was the correct surgery to have performed because the patient could not have conceived, his actions would have been validated.

I consider that the record supports a finding that an emergency existed and that Ms. Wilson’s consent to the removal of her reproductive organs can be implied. La.R.S. 40:1299.54 provides that “a consent to surgical ... procedures ... will be implied where an emergency exists.” An emergency is defined in the statute as “a situation wherein, (a) in competent medical judgment, the proposed surgical or medical treatment or procedures are reasonably necessary, and (b) a person authorized to consent ... is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected.... ” The record indicates the extent of damage to Ms. Wilson’s reproductive organs did not become apparent until during surgery at which time she was not available to give her consent and any delay in the removal of her organs at that time would have jeopardized her health. Dr. Pizzalotto considered that the risks to her health were so severe that surgery to remove the organs would have had to be performed within six to eight days (prior to her leaving the hospital). The assisting surgeon agreed that any delay in surgery would have placed her health in jeopardy. The pathologist considered that a delay in the removal of the organs would have been subject to professional criticism. Clearly, based on competent medical judgment, the removal of Ms. Wilson’s reproductive organs was “reasonably necessary” and that a delay to obtain her consent could “reasonably be expected to jeopardize” her health.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The doctor did what was best for the patient and gets a judgment against him. The preponderance of medical opinion was that the patient’s reproductive organs were so distorted by adhesions that she was already rendered sterile. Their removal was the best medical judgment ... “both ovaries were destroyed and her tubes were completely blocked by adhesions.” Failure to remove them would have been a “marked breach of competence.”

Not only has the plaintiff not suffered injuries she would not otherwise have incurred, but she was spared the trauma of another operation and further jeopardy to her health.

Although not relevant to the case before us, this writer wonders which way the sword would have swung had the doctor subjected plaintiff to another operation which may either caused her serious pain and suffering or possibly loss of life.

      . Dr. Pizzalotto relies on Babin v. St Paul Fire and Marine Ins. Co., 385 So.2d 849 (La.App. 1st Cir. 1980), for the position that a surgeon need not obtain a patient’s actual consent to an operation if a reasonable patient who is aware of the risks would have submitted to the surgery. This statement finds no support in our law, and constitutes the single aberration from our law’s uniform requirement of actual consent to surgery when no emergency situation exists.

      . La.R.S. 40:1299.40 provides:
      A.Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or course of procedures which (a) sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures, (b) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner, and (c) is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
      B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.
      C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

      . La.R.S. 40:1299.54 provides:
      In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures, suggested, recommended, prescribed or directed by a duly licensed physician, will be implied where an emergency exists. For the purposes hereof, an emergency is defined as a situation wherein, (a) in competent medical judgment, the proposed surgical or medical treatment or procedures are reasonably necessary, and (b) a person authorized to consent under Section 1299.-[5]3 is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected, or could reasonably result in disfigurement or impair faculties.


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles NAPOLI.
    No. 83-K-0667.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   PER CURIAM.

GRANTED IN PART. 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 on defendant’s exercise of his right to appeal. State v. Goodley, 398 So.2d 1068 (La.1981). The judgment of the court of appeal, 428 So.2d 957, is set aside as to the sentence for attempted aggravated crime against nature, and the original sentence of the trial court is reinstated. Otherwise the writ is denied.


author: WATSON, J.,

text:
    STATE of Louisiana v. Austin B. WISE.
    No. 83-K-1887.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re: Austin B. Wise applying for Cer-tiorari, or writ of review to the Court of Appeal, Third Circuit [434 So.2d 1308]; Fourteenth Judicial District Court, Parish of Calcasieu.

Denied. The motion for extension of time to file came too late.

WATSON, J.,

concurs, being of the opinion that defendant’s conviction is final; any relief to which he may be entitled can be sought only by way of post conviction remedy.

MARCUS, J., concurs for reasons assigned by WATSON, J.


author: DENNIS, Justice,

text:
    Phillip LaCAZE et ux. v. L.R. COLLIER, M.D.
    No. 82-C-1714.
    Supreme Court of Louisiana.
    Sept. 26, 1983.
   For majority opinion of the Court, see La., 434 So.2d 1039.

DENNIS, Justice,

concurring.

I respectfully concur in the judgment.

This case calls upon the court to decide whether a physician adequately performed his statutory duty to inform his patient of all known risks of a surgical procedure, and, if not, whether his failure was a cause of the patient’s injury. I agree with the majority that the doctor failed to inform his patient of a known risk of the surgery performed which unfortunately had adverse side effects, but that objectively this was not a cause of her injury because any reasonable person, even if accurately informed of all known risks, would have opted to have the surgery under the particular circumstances. However, I disagree with the majority’s perception of La.R.S. 40:1299.40 as a comprehensive restatement of the entire informed consent doctrine and'with the majority opinion’s commentary on issues not before the court.

The doctrine of informed consent is far broader than the rights and duties encompassed by the statute pertinent to this case or brought into play by the facts of this litigation. The root premise of the doctrine is the concept, fundamental in American jurisprudence, that every human being of adult years and sound mind has a right to determine what shall be done with his own body. E.g., Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). See also W. Prosser, Torts § 18 at 102 (3rd ed. 1964); Restatement of Torts § 49 (1934). True consent to what happens to oneself is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical art, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need and in turn the requirement, of a reasonable divulgeance by physicians to make such a decision possible. See Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972).

Proficiency in diagnosis and therapy is not the full measure of a physician’s responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. Babin v. St. Paul Fire and Marine Ins. Co., 385 So.2d 849 (La.App. 1st Cir. 1980). Due care may require a physician perceiving symptoms of bodily abnormality to alert the patient to the condition. Dowling v. Mutual Life Ins. Co. of New York, 168 So.2d 107 (La.App. 4th Cir.1964). It may call upon the physician confronting an ailment which does not respond to his ministrations to inform the patient thereof. It may command that the physician instruct the patient as to any limitations to be presently observed for his own welfare, and as to any precautionary therapy he should seek in the future. It may oblige the physician to advise the patient of a need for or desirability of any alternative treatment promising greater benefit than that being pursued. Canterbury v. Spence, supra. Finally, as the present case indicates, due care normally demands that the physician warn the patient of any risk to his well being which the contemplated therapy may involve.

Indeed, a careful review of La.R.S. 40:1299.40 reveals that it is concerned only with the final duty stated above and does not attempt to codify the others. The statute merely prescribes the duty of a physician to inform the patient of the risks involved in the medical or surgical procedure to be performed. If the physician complies with the statute in warning the patient of any risk to his well being which the contemplated therapy may involve, it cannot be said that the patient failed to knowingly and intelligently assume these particular risks. On the other hand, when reasonable care calls for a physician to inform his patient of an alternative treatment promising greater benefit than that being pursued, to alert him of a bodily abnormality, or to apprise him of an ailment’s lack of response to treatment, his basic duty of due care under the law cannot be discharged by merely informing the patient of the risks involved in the medical procedure performed. Therefore, compliance with La. R.S. 40:1299.40, as reasonably construed, satisfies only one duty of the physician to his patient during the course of treatment and does not supplant his obligation to fulfill his other duties contemplated by the doctrine of informed consent.

It is obvious from a reading of the statute itself that the legislature did not even consider the questions of the physician’s duty to advise the patient of alternative treatments, alert the patient to bodily abnormalities, instruct the patient as to any limitations to be observed for his welfare, alert the patient to an ailment which does not respond to treatment, and perhaps other duties encompassed by the doctrine of informed consent. Since a patient’s right to decide which medical or surgical treatments may be performed upon his own body has constitutional dimensions, it is unthinkable that the legislature would sanction the withholding of such information from a patient when it is necessary to make a knowing and intelligent decision in exercising autonomy over his or her own body. Because these subjects were not even alluded to in the statute, the only reasonable construction of the statute is that it defines only the duty of a physician to inform the patient of the risk's involved in the medical or surgical procedure to be performed and does not attempt to prescribe any of his other duties contemplated by the doctrine of informed consent. Accordingly, until the legislature enacts a comprehensive statute restating the rights of patients and the duties of physicians as to the entire doctrine of informed consent, future cases falling outside the narrow confines of the present statute should continue to be governed by the jurisprudence.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Paul Wesley RUPLE, Defendant-Appellant.
    No. 15440-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      George H. Meadors, Asst. Dist. Atty., Homer, for State-appellee.
    Kitchens, Benton & Kitchens by Paul E. Kitchens, Minden, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, Paul Wesley Ruple, was convicted by a jury of attempted aggravated rape. R.S. 14:27 and 14:42. The district judge imposed a sentence of thirty years at hard labor in the custody of the Department of Corrections. Ruple appeals his conviction and sentence. We affirm.

Mrs. R, a 78 year old widow, was attacked and raped in the bedroom of her residence in Homer, Louisiana, during the predawn hours of March 21, 1982. The victim immediately reported the crime to the authorities and identified the perpetrator as her nineteen year old next door neighbor, Paul Wesley Ruple. Ruple was arrested shortly thereafter.

Ruple was formally charged by bill of information with aggravated rape and aggravated burglary. A trial on these charges was commenced but it ended when the trial judge granted the state’s motion for mistrial on grounds that a prosecution for the offenses charged could not be initiated by bill of information.

Ruple was then charged by bill of information with attempted aggravated rape. His motion to quash the bill of information on grounds of double jeopardy was denied by the district court and his application to this court for supervisory writs was denied.

The defendant was then tried for attempted aggravated rape. The jury unanimously convicted Ruple of attempted aggravated rape. The district judge imposed a sentence of thirty years at hard labor.

Ruple sets out twelve assignments of error. However, he has specifically abandoned assignment of error number ten and it will not be considered.

Assignments 1, 2 and S

The defendant assigns as error the district judge’s granting of the state’s motion for mistrial in the first trial, the denial of his motion to quash the original charges and the denial of his motion to quash the present charge of attempted aggravated rape. With respect to these assignments of error the defendant adopts and relies exclusively on the arguments made in his writ application to this court.

In denying the writ application we said:

“A prosecution for a crime punishable by life imprisonment is constitutionally and statutorily required to be brought by indictment. LSA-Const. Art. 1, § 15, C.Cr.P. 382. Otherwise, the prosecution is afflicted with a “legal defect”, which may be noticed by a court ex proprio motu, and which may not be waived by a defendant or cured by a responsive verdict of a lesser included offense which could have been charged by a bill of information. Any verdict rendered under a bill of information charging aggravated rape would be reversible as a matter of law, C.Cr.P. 775(3). State v. Stevenson, 334 So.2d 195 (1976); State v. Donahue, 355 So.2d 247 (1978); State v. Davis, 385 So.2d 193 (1980).”

We adhere to those views.

A person shall not be considered as having been in jeopardy in a trial where the indictment was invalid. C.Cr.P. 595(3). Here a valid indictment was required and there was no indictment.

The mistrial was properly granted and the motions to quash were properly denied.

These assignments of error are meritless. Assignment 4

The defendant assigns as error the denial of his motion for mistrial on grounds of a reference to other crimes by a prosecution witness.

During the direct examination of the victim by the assistant district attorney the following exchange occurred:

Q. Has he (Ruple) ever been in your house?
A. He was in there one time when — in my house. The last time that I remember him ever being in there was when he shot his little brother, and they, the law made him come over there while they made — (R. 73).

It is undisputed that the victim’s reference to a shooting was unsolicited and not desired by the prosecution. However, following the remark the defendant moved for a mistrial.

Mistrial under C.Cr.P. art. 771 is at the discretion of the trial judge and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515 (La.1982).

The trial judge concluded that an admonition would be sufficient to cure any prejudice resulting from the remark. He strongly admonished the jury to disregard the comment and then asked whether any juror would not be able to disregard the remark. No juror indicated that he could not disregard the comment.

The motion for mistrial was properly denied. Under the circumstances of this case the admonition was sufficient to dispel any prejudice resulting from the victim’s unsolicited remark. State v. Hutto, 349 So.2d 318 (La.1977).

This assignment of error is without merit.

Assignment 5

The defendant assigns as error the trial judge’s failure to sustain objections to testimony by a serologist as to the percentage of the population with certain blood characteristics and by a toxicologist as to blood alcohol levels and the amount of alcohol required to produce them. The defendant contends that the objected to testimony was beyond the areas of expertise of the witnesses.

The test of the competency of an expert is his knowledge of a subject about which he is called upon to express an opinion. R.S.15:466. The competence of a witness to testify as an expert is a question of fact within the sound discretion of the trial judge and his rulings on this subject will not be disturbed unless clearly wrong. State v. Coleman, 406 So.2d 563 (La.1981); State v. Traylor, 311 So.2d 847 (La.1975).

The record shows that the serologist, Pat Wojtkiewicz, is the supervisor of the serology section of the North Louisiana Crime Lab. Mr. Wojtkiewicz holds a B.S. in biology and a M.S. in microbiology. He has sixteen credit hours in mathematics including statistics and probabilities. Wojtkiew-icz had previously given expert testimony in the field of statistics as well as serology. The trial judge accepted Wojtkiewicz as an expert in microscopic analysis and forensic serology, including mathematical probabilities.

Mr. Wojtkiewicz’s educational background and experience fully support the trial judge’s conclusion that he was qualified to testify in the area of mathematical probability. The defendant’s objections to the testimony concerning the percentage of the .population with certain blood characteristics were properly overruled.

In rebuttal the state called as a witness Mr. Jimmy Barnhill, a toxicologist. Barnhill has both a B.S. and a M.S. in chemistry and thirteen years of experience in toxicology. Barnhill is the supervisor of. the chemistry section of the crime lab. He has participated in workshops and seminars on toxicology both as student and instructor. He has also taught college courses pertaining to toxicology at LSU-Shreveport and Bossier City Community College.

Barnhill gave detailed testimony as to the method he used to calculate blood alcohol levels at various prior times based on a known blood alcohol level at a specific time. He also explained the method he used to determine the amount of alcohol which must be consumed in order to produce a given blood alcohol level. The witness’s testimony on these matters was within his field of expertise as a toxicologist and the defendant’s objections were properly overruled.

This assignment of error is meritless. Assignment 6

The defendant assigns as error the trial judge’s refusal to admit testimony by Ricky Rainwater concerning certain statements by Doug Beavers.

The defendant sought to elicit testimony from Rainwater that Beavers, who had been a suspect in the rape, had said, referring to the rape, “I don’t believe Paul done it.” The state objected to this testimony as hearsay and irrelevant. The trial judge sustained the objection. The defendant argues that the evidence is non-hearsay and relevant.

Hearsay is in court testimony as to an out of court statement offered to show the truth of the matter asserted therein and, thus, resting for its value oh the credibility of the out of court asserter. State v. Toomer, 395 So.2d 1320 (La.1981).

The defendant argues that the evidence is non-hearsay because it is not offered to prove the truth of the matter asserted. While under those circumstances the evidence would be non-hearsay its relevance would be highly questionable. We fail to see how the mere fact of the statement by Beavers has any tendency to prove or disprove Ruple’s guilt. The trial judge properly sustained the state’s objection.

This assignment of error lacks merit.

Assignment 7

The defendant assigns as error the trial judge’s failure to instruct the jury as to the definition of “heterosexual rape.”

The defendant submitted proposed instructions including an instruction that:

“This defendant is charged with Attempted Aggravated Rape. That makes it necessary that I define for you some of the terms and this I do by quoting from the Criminal Code of this State. Article 41 defines rape as follows:

“Rape; heterosexual;
‘Heterosexual rape is the act of sexual intercourse with a female person not the wife of, or judicially separated from bed and board from, the offender, committed without her lawful consent. Emission is not necessary; and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime.’ ”

The provisions of R.S. 14:41 upon which the defendant’s proposed instruction is based were repealed in 1978. As reenacted § 41 no longer defines “heterosexual rape.” The requested instruction was erroneous and the trial judge properly declined to give it. C.Cr.P. art. 807. We note that the instructions actually given by the district judge adequately set out the material portions of the definition of rape as presently provided by R.S. 14:41.

This assignment of error is without merit. Assignment 8

The defendant assigns as error the trial judge’s failure to instruct as to the definition of “attempt.” A review of the record shows that the jury was fully instructed as to attempt. R. 734. The substance of the requested charge as to the definition of attempt was included in the charge given and, thus, there was no error in not giving the requested charge. C.Cr.P. art. 807.

This assignment of error is meritless. Assignment 9

The defendant assigns as error the trial court’s inclusion in its instructions an instruction that guilty of attempted simple rape was a responsive verdict to the charge of attempted aggravated rape.

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the error. C.Cr.P. art. 801.

Guilty of attempted simple rape is not a responsive verdict to a charge of attempted aggravated rape. See C.Cr.P. art. 814(A)(9). The trial judge erred in instructing the jury to the contrary.

However, the defendant did not object to the charge and instead requested it. R. 38. Further, the jury found the defendant guilty of attempted aggravated rape and did not make a finding on the erroneous responsive verdict.

Under these circumstances the defendant is not entitled to raise this error. C.Cr.P. art. 801. Nevertheless, we observe that there is no reversible error because the defendant was not prejudiced by it. C.Cr.P. art. 921. See State v. Beavers, 394 So.2d 1218 (La.1981) (defendant not prejudiced by inclusion of a responsive verdict on which trier of fact made no finding).

This assignment of error lacks merit.

Assignment 11

Defendant assigns as error the jury’s conclusion, implicit in its verdict, that the victim resisted to the utmost and was overcome or that she was prevented from resisting by threats of great and immediate bodily harm accompanied by the apparent power of execution. See R.S. 14:42(1) and (2). We interpret this as an assignment of insufficient evidence with respect to these issues.

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

Here our inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the victim resisted to the utmost and her resistance was overcome or that victim was prevented from resisting by threats of great and immediate bodily harm accompanied by the apparent power of execution.

The victim (age 78) testified that Ruple (age 19) burst into her bedroom and attacked her. She testified that he beat her, choked her and threatened to kill her. The victim testified that she did her best to protect herself and prevent the rape but, as she observed, “There wasn’t much I could do,” and in the end her efforts were unsuccessful.

From this evidence a rational trier of fact could find that the victim resisted to the utmost and was overcome. The evidence supports the jury’s verdict.

This assignment of error lacks merit.

Assignment 12

Through this assignment defendant attacks his sentence. He assigns as error the failure of the trial judge to allow him the opportunity to present mitigating circumstances before the sentence was imposed.

The transcript of the sentencing shows that defendant did not request such an opportunity prior to sentencing. When the defendant objected to the lack of such an opportunity after he was sentenced the trial judge immediately offered the defendant an opportunity to present mitigating factors and stated that he would change the sentence if defendant presented factors making a lesser sentence appropriate.

Defense counsel then presented the court with several factors. The trial judge’s excellent sentencing reasons show that he had previously considered most of these factors. He found the remaining factors insufficient to indicate that a different sentence should be imposed.

The defendant cites no authority which would require that he be allowed to make a pre-sentencing presentation of mitigating circumstances. Further, the defendant was allowed to make a presentation of mitigating circumstances immediately upon request and the trial judge agreed to consider those circumstances and change the sentence if a change was appropriate. This .action was sufficient to cure any prejudice to defendant. As defendant was not prejudiced by the alleged error it would not provide grounds for reversal. C.Cr.P. art. 921.

This assignment of error is without merit. Conclusion

The conviction and sentence of the defendant, Paul Wesley Ruple, are AFFIRMED.