author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gerald JOHNSON, Defendant-Appellant.
    No. CR83-175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 28, 1983.

      Dan McKay, Jr., Bunkie, Michael J. Johnson, Cottonport, for defendant-appellant.
    J. Edward Knoll, Dist. Atty., and David Lafargue, Asst. Dist. Atty., Marksville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and. DOU-CET, JJ.
   CUTRER, Judge.

On November 24, 1982, defendant was tried by jury for the crime of armed robbery (LSA-R.S. 14:64) and found guilty as charged. He was sentenced to serve five years at hard labor at the Louisiana Department of Corrections without benefit of probation, parole or suspension of sentence.

FACTS

An armed robbery occurred at the E-Z Shop No. 1, located in Bunkie, Louisiana, on July 5, 1982. Ms. Mable Kimmerer, the assistant manager, was on duty at about 10:30 P.M. when the robbery occurred.

Prior to the robbery three men had entered the store three or four times, walked around, then left. The three men were identified as Ross Bowie, Ronnie Ray Christian and Gerald Johnson, the defendant. Each time the men entered the store that evening there had been other customers present. At a point where there were no customers, two men — one wearing white pants, no shirt and a black stocking mask, the other in blue jeans, no shirt and the identical mask — entered the store and, at gun point, demanded money from Ms. Kim-merer and an associate.

The two men who actively robbed the store were identified as Ross Bowie and Ronnie Ray Christian, the same two men seen earlier in the store with the defendant. A gray strongbox was taken containing approximately two to three hundred dollars, consisting principally of rolled coins.

A short time before the robbery, Ms. Rosa Lee Armstrong, who was enroute to the E-Z Shop, noticed three men standing by the bushes along the railroad track near the store. She noticed that they were without shirts and one of them had on white pants. She knew the three men by name and identified them as being the defendant and the other two men charged with the robbery.

Upon leaving the store, Ms. Armstrong again observed the men lurking by the bushes and, becoming suspicious, she went to a nearby home and telephoned the police. An officer on patrol responded; detecting nothing unusual, he returned to the station. Within five minutes of the policeman’s report of no activity, E-Z Shop No. 1 was robbed.

On July 6, 1982, the police issued an arrest warrant for the defendant, based on statements by two persons that defendant had been seen running from the store about the time of the robbery. Following several failed attempts to arrest the defendant at his home, the police station received a call from attorney Dan McKay. He stated that the defendant was his client and that the latter had a statement to make to police. Defendant was read his rights and indicated that he understood them. The defendant then gave a statement of his version of what happened on the night of the robbery. He stated that he was walking down the road when he saw Ross Bowie and Ronnie Ray Christian come out of the E-Z Shop with a shiny pistol and a metal cash-box. The two had no shirts and wore black stocking masks. The defendant stated that he then picked up some clothes near the bushes by the railroad tracks and took them to Ronnie Ray Christian’s house. Upon entering the house, he observed Ronnie Ray Christian and Ross Bowie in a bathroom dividing up their loot. He then gave the two men a ride in his car, after which he found some rolled coins left on the seat.

The defendant told the police that he still had the coins at his home, and he consented to their seizure. The amount recovered was $35.50. After receiving the defendant’s statement the police delayed arresting him, pending further investigation, but on July 12, 1982, the defendant was arrested and charged with armed robbery.

On November 24, 1982, the defendant was tried by a jury and found guilty. He was subsequently sentenced on January 6, 1983, to the minimum statutory sentence of five years hard labor at the Louisiana Department of Corrections without benefit of probation, parole or suspension of sentence. It is from this conviction that the defendant has presented nine assignments of error:

(1) The trial judge erred in denying the defendant’s motion for a continuance;
(2) The trial judge erred in denying the defendant’s motion for acquittal;
(3) The trial judge erred in denying the defendant’s request for jury instructions;
(4) The verdict of guilty was contrary to the law and evidence;
(5) There was a total lack of evidence to support the verdict;
(6) The trial judge erred in denying a motion for new trial and/or arrest of judgment on the grounds that the prosecution should have been instituted by bill of indictment, rather than by information;
(7) The defendant was denied due process of law and effective representation of counsel in that Louisiana law does not allow the jury to return a verdict finding the defendant guilty as an accessory after the fact when he has been charged with armed robbery;
(8) The trial judge erred in denying a motion in arrest of judgment an/or for new trial on the grounds that the court was improperly constituted; and
(9) The trial judge erred in denying a motion for new trial based on the grounds of newly discovered evidence as to a material witness’ testimony.

Those assignments are addressed as the defendant argued them in brief.

ASSIGNMENTS OF ERROR NUMBERS 2, 4 and 5

(2) The trial judge erred in denying the defendant’s motion for acquittal;
(4) The verdict of guilty was contrary to law and evidence;
(5) There was a total lack of evidence to support the verdict.

These assignments relate to the sufficiency of the evidence supporting defendant’s conviction and will be discussed conjunc-tively.

The defendant was convicted for armed robbery. As he was not one of the two men who entered the store and actually took the money at gun point, his guilt may only be established by his actions as a principal. LSA-R.S. 14:24 provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

LSA-R.S. 14:64(A) defines armed robbery as follows:

“(A). Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of' force or intimidation, while armed with a dangerous weapon.”

Therefore, the State was required to prove the following: The defendant was concerned in the commission of a theft, of anything of value, from the possession or immediate control of another, by use of force or intimidation, and while armed with a dangerous weapon. The evidence previously set forth in the factual recitation clearly establishes that an armed robbery occurred. The sole element of the crime at issue is whether the defendant was “concerned in the commission” of that crime.

The defendant argues that the State’s evidence of his participation in that robbery was entirely circumstantial and failed to exclude every reasonable hypothesis of his innocence. LSA-R.S. 15:438. Our Supreme Court, after several varying approaches, has recognized the appropriate standard of review in cases such as this in light of both the due process standards of Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and LSA-R.S. 15:438, to be as follows:

“An appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime.” (Emphasis in original.)

State v. Sutton, 436 So.2d 471 (La.1983). Also, see State v. Chism, 436 So.2d 464 (La.1983).

Applying the aforementioned standard of review, we find that the State has met its burden of proof as to the defendant’s participation as a principal in the armed robbery at issue. The evidence amply supports this finding.

Defendant was positively identified by the victim as having entered the store with the two active participants in the robbery (Christian and Bowie) three or four times on the night of the crime (committed at approximately 10:30 P.M.). Ms. Armstrong saw defendant behind some bushes with Christian and Bowie thirty minutes prior to the robbery. When she passed that area a short time later, the three men were in the same location, which was near the store subsequently robbed, and the men had removed their shirts. Their suspicious behavior prompted her call to the Bunkie Police Department. When Christian and Bowie entered the store wearing masks, they had removed their shirts. The officers had been told by two witnesses that they had seen the defendant after the robbery running in the area of the store, while carrying something in his arms. Defendant, in his voluntary statement, admitted that he saw Christian and Bowie leaving the store carrying both a gray box and a pistol. He also admitted that the two had stockings on their heads and were shirtless and that he went back to the bushes and retrieved their shirts, hat and sunglasses.

Defendant further admitted that he took the clothes to Christian’s home and was directed to the bathroom where Christian and Bowie were dividing the money. Defendant subsequently drove the two to another location, where he left them. Defendant stated that Bowie left “rolls of quarters, pennies and nickels” in the car when they departed. At the time of his initial statement the defendant directed the officers to his home, where he turned over to them $35.50 of the stolen change.

The only reasonable conclusion from these facts is that defendant was a principal to the armed robbery in that he was concerned in and aided and abetted Christian and Bowie in the crime committed. No other reasonable hypothesis exists. Also, see State v. Bindom, 410 So.2d 749 (La.1982); State v. Johnson, 365 So.2d 1267 (La.1978).

This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 9

(9) The trial judge erred in denying a motion for new trial based on the grounds of newly discovered evidence as to a material witness’ testimony.

At the hearing on a motion for new trial, the defendant elicited testimony from Dr. John Ubanks, a psychiatrist and appraiser of students from Rapides Parish, who tested Rosa Lee Armstrong in November 1976, and found her to be an educable mental retardate. Dr. Ubanks estimated her “mental age,” at the time of trial, to be ten and one-half to eleven years of age. Dr. Ubanks confirmed, however, that a person of such mental age could identify a person or persons out of a group of people, could tell right from wrong and could communicate what she had seen or heard.

The defendant argues that the only evidence that tends to show the defendant’s pre-robbery participation is Rosa Lee Armstron’s suspect testimony. We disagree. The assistant manager, Ms. Kimmerer, also saw the defendant associate with the actual perpetrators prior to the robbery. There was also the testimony of Officer Franklin, which indicated that two local Bunkie residents had seen the defendant run from the E-Z Shop carrying something. Further, defendant’s own statement incriminated him, as did his possession of money stolen from the store.

Defense counsel contends that a new trial should have been granted defendant, as the jury had not been informed of Ms. Armstrong’s lessened mental capacity. Defendant further argues that the record, on post-trial motions, is full of inconsistencies in Mr. Armstrong’s statements. However, it was noted by Judge Bennett that, being sworn and under oath on two separate occasions, Ms. Armstrong held to the same story. The trial judge did not find Ms. Armstrong’s mental deficiencies to be sufficient grounds to set aside the trial. We agree.

LSA-C.Cr.P. 851(3) provides that the court, on motion of the defendant, shall grant a new trial whenever:

“New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;”

The newly-discovered evidence must be such that it would probably have changed the verdict of guilty, and the test to be employed is not simply whether another jury “might” bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result from the verdict reached. State v. Huizar, 414 So.2d 741 (La.1982); State v. Talbot, 408 So.2d 861 (La.1981); State v. Molinario, 400 So.2d 596 (La.1981). Additionally, it is well settled that the decision on a motion for a new trial rests within the sound discretion of the trial judge, who is accorded considerable latitude in evaluating the reliability of evidence and its potential impact on the verdict. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of his discretion. State v. Graham, 422 So.2d 123 (La.1982); State v. Huizar, supra; and State v. Molinario, supra.

Under the instant facts, we are unable to say the new evidence is so material that it would produce a different result from the verdict reached. Clearly the trial judge did not abuse his discretion in denying defendant’s motion for a new trial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 7

(7) The defendant was denied due process of law and effective representation of counsel in that Louisiana law does not allow the jury to return a verdict finding the defendant guilty as an “accessory after the fact” when charged with armed robbery.

Defendant alleges that LSA-C.Cr.P. art. 814(A)(22) denies him due process of law, as it does not include “guilty of accessory after the fact” as a responsive verdict to the charge of armed robbery. This is merely an attempt to re-argue the evidence, as defense counsel argues that the evidence failed to support the conviction for armed robbery, but the jury “felt” that the defendant had done something wrong and must be punished. Defendant contends that art. 814 unconstitutionally denied the jury the “option of convicting [defendant] as accessory after the fact.”

The only verdicts responsive to armed robbery are mandated by art. 814, and the trial court has no authority to add to those verdicts. State v. Thibodeaux, 380 So.2d 59 (La.1980). In this case, the jury had been informed by defense counsel, the State and the trial judge as to the crime of “accessory after the fact” and that it was not responsive to a charge of armed robbery. They were also instructed that, if they could only find defendant guilty of accessory after the fact, they were required to acquit him. The record reflects that the trial court properly instructed the jury as to the State’s burden of proof, and we can find no support for defendant’s allegations that his due process rights have been infringed by the Legislature’s refusal to include “guilty of accessory after the fact” as a responsive verdict to an armed robbery charge.

As stated by our Supreme Court in State v. Marse, 365 So.2d 1319, 1322 (La.1978):

“Defendant’s ultimate protection is that if the state fails to prove the elements of the offense charged or of those offenses for which responsive verdicts are prescribed by La.C.Cr.P. art. 814, he is entitled to an acquittal.”

We previously held in addressing defendant’s assignments of error numbers 2, 4 and 5, that the State had adequately met its burden of proof, and we cannot find that the defendant’s constitutional rights were abridged. The Louisiana responsive verdict system has withstood previous constitutional challenges, and it easily withstands this one. See, State v. Matthews, 380 So.2d 43 (La.1980), and the cases cited therein. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 8

(8) The trial judge erred in denying a motion in arrest of judgment and/or for new trial on the grounds that the court was improperly constituted.

Prior to trial, Judge James N. Lee re-cused himself on his own motion and appointed Marksville City Court Judge, B.C. Bennett, Jr., as Judge ad hoc. The record does not reflect any reasons given for the recusal; however, the defendant’s counsel at that stage of the proceedings was Mr. Dan McKay, Judge Lee’s son-in-law and an associate of the judge’s son’s law firm, Nelson M. Lee and Associates.

The defendant admits the relationship between counsel and judge, but he adds in brief the facts that Judge Lee is a resident of Bunkie and a former city judge there. The robbery at issue occurred in Bunkie, and the victims, defendants and witnesses are all from Bunkie, including several police officers and the Chief of Police. Based on these factors, defense counsel argues that the reason for recusal may be bias, prejudice or personal interest as defined in LSA-C.Cr.P. art. 671(1). If this were the reason for recusal, defendant argues that the court would be improperly constituted based upon C.Cr.P. art. 675. That article, in pertinent part, states:

When the ground assigned for the re-cusation of the judge of a district court having one judge is that he is biased, prejudiced, or personally interested in the cause, the judge shall appoint a district judge of an adjoining district to try the motion to recuse. When any other ground is assigned for the recusation of such a district judge, he may appoint either a district judge of an adjoining district, or a lawyer domiciled in the judicial district who has the qualifications of a district judge, to try the motion to recuse.”

LSA-C.Cr.P. art. 676 authorizes a district judge who recuses himself to appoint a judge ad hoc to try the case. In this instance, by appointing Marksville City Judge B.C. Bennett, Jr., as Judge ad hoc, Judge Lee complied with statutory mandate if the grounds for recusal were not bias, prejudice or personal interest. There is nothing in the record to indicate that they were.

From the record and briefs, it is obvious that a legitimate ground for recusal existed, that being the relationship between counsel and judge. There is no evidence that any other ground existed. The burden of proving that Judge Lee recused himself for other reasons lay with the defendant. LSA-R.S. 15:439. He has not met that burden in the instant case. Since the relationship was a legitimate ground for recu-sal, the judge’s actions were proper, and the allegation that the court was improperly constituted is without merit.

ASSIGNMENT OF ERROR NUMBER 1

(1) The trial judge erred in denying the defendant’s motion for a continuance.

The record indicates that, immediately prior to trial on July 5, 1982, Mr. McKay made an oral motion for continuance based on the absence of two witnesses.

LSA-C.Cr.P. art. 707 states:

“A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
“ Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice."

This article has been strictly construed by Louisiana jurisprudence, such that a motion for continuance must be in writing and must allege the specific grounds upon which it is based. Where no written motion for continuance appears of record, the denial thereof will not be considered. State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Jones, 340 So.2d 563 (La.1976).

The grounds asserted by defendant, in his request for a continuance, were that two of his witnesses were not present. This ground is specifically recognized in LSA-C. Cr.P. art. 709, which sets forth certain requirements:

“A motion for a continuance based upon the absence of a witness must state;
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

The record indicates that the defendant failed to comply with any of these requirements. This reason and the fact that the motion was oral are sufficient to uphold the trial court’s decision.

A decision to grant a continuance is placed in the discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Washington, 407 So.2d 1138 (La.1981). In this instance there was clearly no abuse. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 6

(6) The trial judge erred in denying a motion for new trial and/or arrest of judgment on the grounds that the prosecution should have been instituted by bill of indictment, rather than by information;

Defendant contends that the trial court erred in denying his motion for a new trial and/or an arrest of judgment on the grounds that his prosecution was improperly instituted by bill of information, when a bill of indictment should have been utilized.

Article I, § 15 of the Louisiana Constitution and Article 382 of the Code of Criminal Procedure require that the prosecution be instituted by an indictment by a grand jury only when the offense is punishable by death or by life imprisonment. All other criminal prosecutions in a district court are to be instituted by indictment or by information. Defendant was charged and convicted for the crime of armed robbery, which is punishable by a maximum term of imprisonment of nmety-nine (99) years. LSA-R.S. 14:64.

Defense counsel argues that the possible sentence, when added to the accused’s age, would exceed the expected life span of human beings, such that armed robbery is punishable by life imprisonment. This argument has previously been addressed and rejected by our Supreme Court. State v. Johnson, 365 So.2d 1267 (La.1978); State v. Qualls, 353 So.2d 978 (La.1977). We, in a similar vein, reject defendant’s contention. The grand jury indictment is clearly mandated only for those offenses which the Legislature has chosen to expressly punish by death or life imprisonment.

Accordingly, this assignment has no merit.

For these reasons the conviction and sentence are affirmed.

AFFIRMED.

      . The record does not reveal what those instructions were or that defendant objected to the instructions read by the trial judge. See LSA-C.Cr.P. art. 841. Further, defendant provides no argument on this assignment, and it is, therefore, abandoned on this appeal. State v. Washington, 430 So.2d 641 (La.1983).

         At his jury trial defendant phrased this pre-ver-dict motion as being for a directed verdict of acquittal. This is an unknown procedure for jury trials in Louisiana, which does allow a motion for acquittal in bench trials. LSA-C. Cr.P. art. 778. However, effective on the dale of defendant’s trial (November 24, 1982), were the newly enacted provisions of LSA-C.Cr.P. art. 821. That article allows the trial judge to enter a post-verdict judgment of acquittal in jury trials when the evidence fails to support the conviction entered. Defendant’s motion was, therefore, technically defective inasmuch as it was made after the State had rested its case but prior to the rendering of the jury’s verdict. Nevertheless, the issue sought to be addressed by the motion — insufficiency of evidence — is encompassed by assignments four and five and is dealt with by the argument herein.

      .The term “theft” is defined in LSA-R.S. 14:67 as:
      “Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”

      . The term “anything of value” is defined in LSA-R.S. 14:2(2) as:
      “ ‘Anything of value’ must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term ‘property.’ In all cases involving shoplifting the term ‘value’ is the actual retail price of the property at the time of the offense.”

      . The term “dangerous weapon” is defined in LSA-R.S. 14:2(3) as:
      “ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

      . This metamorphosis is revealed in the following cases: State v. Williams, 423 So.2d 1048 (La.1982); State v. Graham, 422 So.2d 123 (La.1982); and State v. Austin, 399 So.2d 158 (La.1981).

      . LSA-R.S. 14:25 provides, in pertinent part, as follows:
      “An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.
      “An accessory after the fact may be tried and punished, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amendable to justice.”

      . Those responsive verdicts are
      Armed Robbery.
      Guilty.
      Guilty of simple robbery.
      Guilty of attempted armed robbery.
      Not guilty.

      . LSA-C.Cr.P. art. 671 in its entirety provides:
      “In a criminal case a judge of any court, trial or appellate, shall be recused when he:
      (1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
      (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
      (3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
      (4) Is a material witness in the cause;
      (5) Has performed a judicial act in the case in another court; or
      (6) Would be unable, for any other reason, to conduct a fair and impartial trial.
      In any cause in which the state, or a political subdivision thereof, or a religious body is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation.”

      . LSA-C.Cr.P. art. 676 provides, in part:
      “A. When a district court judge, or a judge of a separate juvenile court or of a family court, recuses himself, he shall appoint a judge ad hoc to try the case in the manner provided by Article 675 for the appointment of a judge ad hoc to try a motion to recuse....

      D. The judge ad hoc has the same power and authority to dispose of the case as the recused judge would have.”

      . Even though the Code of Criminal Procedure provides that the application for continuance shall be by written motion, the trial court’s denial of defendant’s oral motion for a continuance can be properly reviewed by this court where the occurrences that allegedly made the continuance necessary arose unexpectedly, so that defense counsel has no opportunity to prepare a written motion. See State v. Parsley, 369 So.2d 1292 (La.1979). However, this exception to C.Cr.P. art. 707 is not applicable in this instance.


source: Caselaw Access Project

author:
DOMENGEAUX, Judge.
     DOMENGEAUX, Judge,

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Wallace ANDERSON, Defendant-Appellant.
    No. CR82-821.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 28, 1983.

      Hardy M. Parkerson, Lake Charles, Charles Schrumpf, Sulphur, for defendant-appellant.
    Leonard Knapp, Jr. and Karen Lee Price, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   DOMENGEAUX, Judge.

The defendant, Wallace Anderson, was indicted by the Calcasieu Parish Grand Jury on charges of aggravated rape under La. R.S. 14:42, and attempted aggravated rape under La.R.S. 14:42 and 14:27. These charges arose from an incident in December, 1981, involving the defendant, and two juveniles. Following his plea of not guilty, defendant was tried jointly before a twelve (12) member jury on both charges and was found guilty on each count.

The trial court sentenced the defendant to the mandatory penalties for aggravated rape and attempted aggravated rape, i.e., life imprisonment without benefit of parole, probation or suspension of sentence on the former and fifty (50) years imprisonment on the latter, the second sentence to be served consecutively to the first.

On this appeal from his conviction and sentence, the defendant has presented fifteen assignments of error, which are as follows:

(1) The trial court erred in failing to allow the attorneys for defendant to rehabilitate the defendant after he was impeached for prior convictions.
(2) The trial court erred in using the responsive verdicts effective on the trial date (October 1982) in its charge and interrogatories to the jury, when the alleged offense occurred in December 1981.
(3) The trial court erred in using an improper and unconstitutional jury instruction in stating that the jury may find that the defendant intended the natural and probable consequences of his acts.
(4) The trial court erred in failing to give the amended written jury charges to defendant’s counsel, although defendant had requested a copy of the charge that was read to the jury.
(5) The trial court erred in allowing, over defendant’s objection, hearsay evidence from police officers as to what the alleged victims had told police officers concerning defendant’s actions.
(6) The trial court erred in recognizing Barbara Ray as an expert in the field of serology.
(7) The trial court erred in allowing the prosecutor in closing argument to allude to evidence which was not in the record and highly prejudicial; specifically, evidence that Barbara Ray had stated that she had found type 0 blood on the defendant’s underwear, when in fact, Barbara Ray had stated that she was unable to type the blood on the underwear.
(8) The trial court erred in allowing into evidence certain photographs taken by police, which were not included in the State’s answers to defendant’s motion for discovery; nor were the photographs made available to defendant’s counsel when defense counsel inspected the State’s evidence at the Sheriff’s Department pursuant to the written authorization furnished to defendant’s counsel by the State of Louisiana in satisfaction of the defendant’s motion for discovery; and in failing to timely amend and supplement its answers to discovery prior to trial in violation of Code of Criminal Procedure Articles 718 and 729.3.
(9) The trial court erred in prejudicing the jury by calling down the defendant in front of the jury, although the defendant had done nothing wrong; the court addressed him in a hostile tone, ordering him to take gum out of his mouth, when in fact he merely had a speech impediment.
(10) The trial court erred in allowing into evidence, over defendant’s objection, a rape kit without the State having proved a proper chain of evidence and without a proper foundation having been lain for an introduction of same.
(11) The trial court erred in limiting defendant’s counsel’s closing arguments, when defense counsel attempted to analogize to similar fact situations and cases.
(12) The trial court erred in finding that the evidence presented by the State was sufficient to show a rape beyond a reasonable doubt and to exclude every reasonable hypothesis of innocence.
(13) The trial court erred in allowing the State, in its closing arguments to refer to evidence which was not in the record with regard to who called the police.
(14) The trial court erred in not placing the witnesses for the State under a sequestration order, after defendant had requested by motion that all witnesses be placed under the rule of the court.
(15) The trial court erred in allowing prospective jurors who had been summoned to have their names withdrawn from the jury venire, or excusing such jurors without notifying defense counsel of the reasons for so excusing the prospective jurors.

FACTS

On Saturday, December 5, 1981, during late afternoon, two Lake Charles police officers, Detective Reinecke and Officer Bar-field, responded separately to an anonymous call that a possible rape was in progress in an abandoned apartment at 613 Armstrong Street. Detective Reinecke arrived at the location first and observed a single automobile parked in the apartment complex’s driveway. In that vehicle were two black juveniles, Brenda Anderson (age 14) and Philip August (age 9). Before approaching the car, Reinecke inquired without success of several pedestrians as to who had called the police. Upon logging in the license number of the automobile, Reinecke was joined by Officer Barfield, and the two saw a black female standing at an upstairs window pointing to the apartment below.

Before proceeding further, the officers asked the children in the parked car what was wrong. Brenda, who was crying at that time, stated that her “daddy” had just raped her and that he had her little sister inside the apartment at that moment. She also told the officers that the defendant (“daddy”) had a knife. Finding the door heavily padlocked, the officers entered the apartment through a window and promptly arrested the defendant whose clothes were “disarranged [and] kind of dirty.” Melissa August (Brenda’s younger sister), age 10, was found tucking her shirt in her pants and arranging her clothes, and when she was asked by the officers what had happened, she answered “that Wallie [defendant] was getting ready to do it to her.” Melissa showed the officers where the defendant had hidden the knife when he heard them entering the apartment. At the time of the offenses, the defendant was free on a weekend pass from Angola, where he was serving a prison term on a conviction for manslaughter.

ISSUES

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant alleges that the trial court erred in refusing to allow his attorneys to rehabilitate him after he had been impeached by references to prior convictions. During his counsel’s examination the defendant admitted that he had been convicted for manslaughter and had been serving a prison term for that offense since 1979. The defendant further admitted to his prior convictions for other felony crimes. The State referred twice, as set forth below, to defendant’s manslaughter conviction during its cross-examination of him:

“Q. Now, Mr. Anderson, you told this jury that you’ve been convicted of manslaughter, you killed a human being, right?
“A. Yes, ma’am.”

and

“Q. Then the eighth one, moving up in the world, [sic] convicted of killing somebody, huh?
“A. Yes, ma’am.”

Upon his redirect examination, the defendant was asked by his counsel to “tell [the jury] about the manslaughter.” The State’s objection to that question and the answer it sought to elicit was sustained by the trial judge.

Defendant contends that the trial court’s refusal to allow him to be rehabilitated by explaining the details of his prior conviction for manslaughter violated fundamental fairness, inasmuch as the State is allowed to cross-examine the defendant about the details of the prior crime in order to show its true nature. See State v. Kimble, 407 So.2d 693 (La.1981); La.R.S. 15:495. It is well established that the prosecution may question the defendant as to the details of prior convictions in order to impeach his credibility. However, that questioning must be of a limited nature and may not go into far-reaching and irrelevant matters, which might prejudice the rights of the accused. State v. Talbert, 416 So.2d 97 (La.1982); State v. Connor, 403 So.2d 678 (La.1981); State v. Oliver, 387 So.2d 1154 (La.1980). The extent of the State’s inquiry which is allowable depends upon the facts of each case, and the trial judge’s discretion in determining the scope of pros-ecutorial questioning is great and will not be disturbed on appeal absent a showing of abuse. State v. Chaney, 423 So.2d 1092 (La.1982); State v. Thompson, 364 So.2d 908 (La.1978).

In the case sub judice the State did not go into the details of defendant’s manslaughter conviction, and we cannot find that the trial judge erred in refusing to allow the defendant to go into those details. Nor was defendant denied due process of the law or fundamental fairness under these facts. The defendant chose to admit to the prior convictions, and the State did not elaborate upon the circumstances surrounding the crimes committed. We do not find it necessary to add to the accused’s panoply of rights by overruling the trial court’s correct determination that defend-ant’s attempted redirect examination was irrelevant. Allowing one to explore the circumstances of a previous conviction under the nebulous assertion that he should be allowed to rehabilitate himself, when he himself has provided the source of impeachment, would do nothing more than circumvent the rule that irrelevant evidence is not admissible. La.R.S. 15:441.

Clearly, the defendant’s attempt to introduce the facts surrounding his previous conviction for manslaughter would not have tended to prove or disprove any material fact in his trial for aggravated rape and attempted aggravated rape. State v. Hathorn, 395 So.2d 783 (La.1981). The trial court did not err in denying defendant the right to introduce irrelevant testimony, and this assignment, accordingly has no merit.

Defendant argues, for the first time in brief, that the State’s references at trial to other convictions not admitted to by defendant during his direct examination were improper impeachment under the United States Supreme Court’s ruling in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). The court in Loper held that the State’s use of prior uncounselled convictions for impeachment purposes so prejudiced the defendant under the facts of that case that his conviction must be vacated and remanded. That case involved the testimonies of only the victim and the defendant, the latter’s credibility being severely damaged by the introduction of convictions for which he had not been afforded the right to counsel.

In the instant case, the defendant admitted under direct examination to his prior convictions for manslaughter, forgery and aggravated battery. However, upon cross-examination the State questioned him about prior convictions for non-support, simple escape, and attempted theft (it appears from the sheriff’s records that defendant may not have been convicted of attempted theft). Assuming arguendo that defendant did preserve his objection to this line of questioning, we cannot find that an error has been committed or that the defendant has been prejudiced.

Louisiana jurisprudence has adopted the Loper rule, but it has expressly placed the burden upon the defendant to establish that the convictions used to impeach him were unconstitutionally obtained. See State v. Roland, 379 So.2d 721 (La.1979). See also State v. Nicholas, 397 So.2d 1308 (La.1981). A careful examination of the record indicates that defense counsel never attempted to establish that the prior convictions were unconstitutionally obtained. See State v. Bernard, 326 So.2d 332 (La.1976).

Additionally, we note that the convictions referred to by the State were lesser in degree than the ones admitted to by defendant, and the defendant was not, therefore, prejudiced by their relatively slight degree of impeachment value. We find this to be especially true in light of the overwhelming evidence of defendant’s guilt. This contention is, accordingly, meritless.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that an error occurred when the trial judge provided to the jury a list of responsive verdicts, effective on the trial date (October 1982), but which had not been in effect on the date of the offenses at issue. In support of his proposition, defendant cites State v. Ferguson, 358 So.2d 1214 (La.1978). We find that case and its adherence to the rule set forth in State v. Martin, 351 So.2d 92 (La.1977), to be applicable to the instant facts.

Defendant was charged with having committed both an aggravated rape (upon Brenda Anderson) and an attempted aggravated rape (upon Melissa August). The offenses were established to have occurred in December 1981, and at that time the responsive verdicts to these crimes were as follows:

Aggravated Rape
1.Guilty,
2. Guilty of attempted aggravated rape;
3. Guilty of simple rape;
4. Guilty of forcible rape;
5. Guilty of attempted forcible rape; or
6. Not guilty.
Attempted Aggravated Rape
1. Guilty;
2. Guilty of attempted forcible rape;
3. Guilty of attempted simple rape; or
4. Not guilty.
La.C.Cr.P. Art. 814 A(8), (9).

However, the trial judge instructed the jury as to the responsive verdicts effective on the trial date. Acts 1982, No. 763, § 1 had amended Article 814 A(8) and (9), and those amended forms were in effect in October 1982. The responsive verdicts in the amended article, which the trial judge provided to the jury, are set forth below:

Aggravated Rape
1. Guilty;
2. Guilty of Attempted aggravated rape;
3. Guilty of forcible rape;
4. Guilty of attempted forcible rape;
5. Guilty of sexual battery; or
6. Not guilty.
Attempted Aggravated Rape
1. Guilty;
2. Guilty of attempted forcible rape; or
3. Not guilty.
La.C.Cr.P. Art. 814 A(8), (9).

Relying upon State v. Ferguson, supra, and State v. Martin, supra, we hold that the trial judge properly applied the listing of responsive verdicts in effect on the date of defendant’s trial. The Supreme Court in Martin squarely held that amendments providing for different responsive verdicts were procedural changes and that the controlling law as to procedural matters is the one in existence at the time of trial. 351 So.2d at 93. The court in Ferguson reiterated the Martin rule, but affirmed the trial judge’s decision not to include instructions as to forcible rape being a crime responsive to aggravated rape, because the crime of forcible rape had not been legislatively identified when the offenses at issue in that trial had occurred. That decision correctly recognized that the enactment of the crime of forcible rape was a substantive change, which could only act prospectively, thereby precluding a conviction for a crime which was not in existence at the time of occurrence. 858 So.2d at 1221-1222. See also State v. English, 367 So.2d 815, 821 (La.1979).

Our decision is not affected by the inclusion of “guilty of sexual battery” as an additional responsive verdict to which defendant would not have been subjected in December 1981, the date of the offenses in question. That crime had been legislatively defined on that date and has remained unchanged to this time. The substantive rights of the defendant were not, therefore, affected by a prohibited retroactivity. Additionally, we note that it appears anomalous for one to allege that he was prejudiced, when he was convicted of the precise crime charged, despite the existence of arguably erroneous lesser responsive verdicts which were found to be inappropriate by the trier of fact. See State v. Prestridge, 399 So.2d 564, 578 (La.1981); State v. Beavers, 394 So.2d 1218, 1229 (La.1981) (Justice ad hoe Stoker). For the aforementioned reasons, the trial judge properly utilized the responsive verdicts effective at the time of defendant’s trial, and this assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment defendant alleges that the trial judge committed reversible error by instructing the jury that it “may find that the defendant intended the natural and probable consequences of his acts.” Defendant relies, for his proposition, upon the United States Supreme Court decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its adoption by our state Supreme Court in State v. Heads, 385 So.2d 230 (La.1980).

The rationale of those two decisions was recently capsulized in State ex rel. Ross v. Blackburn, 403 So.2d 719 (La.1981) (Justice ad hoc Laborde), as follows:

“The defense urges that this instruction violated the recent case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and State v. Heads, 385 So.2d 230 (La.1980). In Sand-strom, supra, the United States Supreme Court found an instruction that ‘the law presumes that a person intends the ordinary consequences of his voluntary, acts’ suggestive of serious constitutional problems since such a presumption could have the effect in a deliberate homicide prosecution of shifting the burden to the defendant to show that he lacked the requisite mental state of the crime, or create a conclusive presumption of intent against the defendant. A jury’s inference that the presumption was mandatory and irre-buttable would alleviate the state’s burden of proving beyond a reasonable doubt every element of the crime charged, in violation of the mandate of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
This Court applied the rationale of Sandstrom in State v. Heads, supra, a first degree murder case where the same instruction was given, i.e., ‘a man is presumed to intend the natural and probable consequences of his acts.’ This Court held:
‘As in Sandstrom, the jury could have interpreted the instruction as either shifting the burden of proving intent to defendant or creating a conclusive presumption of intent against defendant. Since intent, an essential element of the crime charged, was the main issue in the case and was also the subject of the erroneous instruction, we are unable to say that the error was harmless beyond a reasonable doubt. Hence, we must remand the ease to the district court for a new trial consistent with the views expressed by the United States Supreme Court in Sandstrom v. Montana, supra.” At 721.

However, in Sandstrom and Heads the juries were instructed that one is presumed to intend the natural and probable consequences of his acts. In the instant case the jurors were told only that they “may find that the defendant intended the natural and probable consequences of his acts.” We do not find that this statement impermissi-bly shifts the burden of proof to the defendant as had occurred in Sandstrom and Heads.

The jury had correctly been instructed that the burden of proving beyond a reasonable doubt every element of the crimes charged lay with the State. The context of the instructions complained of is provided herein:

“Each of these crimes require[s] a certain type of criminal intent. Criminal intent may be specific or general.
“Specific criminal intent is that state of mind which exists when the circumstances indicate, that the defendant actively desired the prescribed criminal consequences to follow his act or failure to act.
“General criminal intent is present when the circumstances indicate that the defendant must have averted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. A general criminal intent is always present when there is a specific intent.
“Whether criminal intent is present must be determined in light of ordinary experience. Intent is a question of fact which may be inferred from the circumstances.
“You may find the defendant intended the natural and probable consequences of his act.”

It is clear that the jury was never instructed as to an impermissible presumption against defendant, and the burden of proving the defendant’s intent was properly placed upon the State. See State v. Harris, 383 So.2d 1, 11 (La.1980); State v. Vaughn, 431 So.2d 763 (La.1983). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial court erred in failing to honor his counsel’s request for a written copy of the amended charges. Article 801 of the Code of Criminal Procedure requires that the defendant be given a copy of the jury charges, if he requests that they be reduced to writing. Under the instant facts defense counsel had received a copy of the charges, which the trial judge intended to read to the jury. Prior to the reading of those charges, the parties met in chambers to discuss proposed amendments.

During the in-chambers conference, the charges were discussed in detail, and each party made individual notes of the slight changes on his original copy of the charges. The trial court told the parties that he would add the discussed changes to the charge he would read to the jury, and at no time prior to that reading did the defendant request a copy of the amended charge. The issue before this court is whether the trial judge committed reversible error in failing to provide defense counsel with a copy of the amended charges. We hold that he did not.

Two factors are significant in our determination. First, is the fact that defense counsel participated in the discussion regarding the changes to be made to the jury instructions/charges. He could not, therefore, claim that he was surprised by the charges read to the jury. We further note that the amendments were of no significant consequence, and no showing has been made that defendant was prejudiced by the reading of the charges. Second, and of equal importance, is our observation that it was not until after the jury retired for its deliberations that the defendant complained that he had not been given a written copy of the amended charges. Defendant made no request of the trial judge to be provided a copy of the document he was reading.

Although it may be argued that it would have been more consonant with the spirit and intent of La.C.Cr.P. Article 801 for the trial court to have provided defendant a copy of the amended charges, we cannot say that reversible error occurred. Defendant’s failure to contemporaneously object to the lack of a revised copy constituted an acquiescence to the trial court’s reading of the charges and therefore waived any objections to the matter upon appeal. La.C. Cr.P. Art. 841. Additionally, we do not find that any substantial, or insubstantial, rights of the defendant have been prejudiced. Accordingly, this assignment is meritless.

ASSIGNMENT OF ERROR NO. 5 ■

By this assignment defendant alleges that the trial court erred in allowing the two arresting officers to testify, over defense counsel’s objections, as to statements made by the victims which strongly incriminated defendant with the crimes for which he was convicted. The testimony of which defendant complains is as follows:

“Q. I ask you again, Detective Rei-necke. What did Brenda tell you when you went up to the car?
“A. I asked her what the problem was. She was crying. She looked at me and said that ...
“Q. Answer the question.
“A. She told me. She said my daddy raped me and he has my little sister inside now.”
“Q. What did you [Detective Rei-necke] do with Melissa in that room that you had labeled 1, sir?
“A. I asked her if she was all right. She said yes. And then I asked her what had happened.
“Q. What did she tell you?
“A. She told me that Wallie [defendant] was getting ready to do it to her.”

Officer Barfield also testified that he heard Brenda tell Detective Reinecke that “her daddy had raped her.” ,

We note that defendant was convicted of separate crimes against each victim and that, technically, the statements attributed to Brenda and Melissa are to be considered only as to defendant’s conviction on the applicable crime. However, we find the same rationale controlling as to each statement and see no need to make further unnecessary distinctions.

There is no doubt that the officers provided hearsay testimony:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertor. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434.”

State v. Hatcher, 372 So.2d 1024, 1031 (La.1979) (On original hearing).

The issues before us are whether the testimony falls under an exception to the hearsay rule and, if it does not, whether the error in its admission so prejudiced the defendant as to require a reversal of his convictions.

Defense counsel asks this court to give unmerited weight to the fact that the victims, ages 14 and 10, were responding to questions by police officers when they gave statements incriminating defendant. In support of this proposition is cited State v. Hunter, 340 So.2d 226 (La.1976). In that case, the Louisiana Supreme Court held admissible the hearsay statements of the victim which identified her attackers under the “early complaint of a rape victim” exception. Supra, at 233. Without attributing any weight to or elaborating upon it, the Court noted that the victim’s statements were not made in response to police interrogation. We disagree with defendant’s attempted interpretation.

In a host of decisions the Louisiana Supreme Court has affirmed lower courts’ decisions allowing the hearsay testimony of rape victims’ statements which incriminated the accused. State v. Middlebrook, 409 So.2d 588 (La.1982); State v. Prestridge, 399 So.2d 564 (La.1981); State v. Hatcher, supra; State v. Elzie, 351 So.2d 1174 (La.1977); State v. Noble, 342 So.2d 170 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976); State v. Brown, 302 So.2d 290 (La.1974); State v. Pace, 301 So.2d 323 (La.1974). Each of those cases involved different aged victims with different periods of time between the sexual attack and the statements of its commission. For example, in Prestrldge, supra, the victim was 10 years of age and told her babysitter, in response to the latter’s questioning, on the morning after the rape, of its occurrence and the identity of the perpetrator. The court in Prestridge held the statements to be admissible under the “original [early] complaint” exception. And, in Elzie, supra, the victim’s statements were elicited only after repeated questioning.

In Noble, supra, two days had transpired between the crime and the four year old victim’s statement. And, in Hatcher, supra, the court held admissible the hearsay testimony of a fourteen year old girl’s statements, when she had refused initially to respond to her mother’s questions, but subsequently told her sister that she had been raped. We find the following language of State v. Adams, 394 So.2d 1204 (La.1981) (Justice ad hoc Guidry), to be persuasive:

“This Court has previously recognized that in prosecutions of sex offenses the better rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication. State v. Pace, 301 So.2d 323 (La.1974); State v. Noble, 342 So.2d 170 (La.1977). In Noble, supra, the prosecutrix was a four year old child who made her statements identifying the perpetrator to her grandmother a full two days after the offense. The statement was held admissible because the circumstances indicated that the statement was made at the first opportunity the child had to speak to a close family member. In the instant case, there was a lapse of approximately eight to ten hours between the offense and the victim’s statement to Ms. Hun-gerford. The record reflects that the victim’s statement was the first complaint by the child concerning the perpetrator of the rape. Further, it was the first opportunity for the child to state the person who was responsible for her injury. There is no indication in the record that the child’s statement was a product of fabrication, but rather, the circumstances reflect that the victim’s response was merely a truthful answer to an adult’s concerned inquiry. The child was upset and frightened and made her statement at the first reasonable opportunity under the particular facts and circumstances of this case.” At 1212.

The instant facts reveal that Brenda was approached shortly after the rape by the officers and was asked what had happened. She stated that she had been raped. There is no suggestion that her answer was fabricated. Indeed, she confirmed at trial that she had been raped by defendant. The statements were so closely attached to the crime as to constitute a part of the res gestae, forming an exception to the hearsay rule from which is derived the “original complaint” exception. La.R.S. 15:447 and 15:448. State v. Middlebrook, supra, at 590.

There was no significant or unexplained lapse of time between the occurrence of the rape and Brenda’s statement to the officers. The record reflects that only a short period of time had transpired. We do not attach any significance to the observation that Brenda, upon crawling through the window subsequent to her rape, saw a neighborhood resident (apparently, the woman who initially called the police) and briefly told her, “Hello.” No further conversation was had between the two. When the officers approached the car occupied by Brenda and Philip, Brenda was still crying from the traumatic and “shocking episode” she had been forced to endure. The attendant facts and circumstances (the victim’s tender age, the short period of time involved, the nature of the crime, and that Brenda’s statement was her first complaint of the rape) clearly support a finding that the officers’ hearsay testimonies were admissible under the “early complaint” exception.

The foregoing analysis applies with even greater strength to Melissa’s statements, as she was four (4) years younger than Brenda and as defendant was still in the apartment with her when she was arrested. This created a much more immediate circumstance, further supporting the admissibility of the victim’s statements. See State v. Middlebrook, supra, at 590.

We observe, additionally, that, even had the statements been inadmissible, as hearsay, their entrance into evidence would have constituted nothing more than harmless error. Each of the victims had already testified that the crimes occurred exactly as they had initially told the officers. The testimony of the latter merely corroborated that already given by the victims, and it did not, therefore, prejudice defendant. State v. McIntyre, 381 So.2d 408 (La.1980). For all of the aforementioned reasons, we hold that the trial court did not err in admitting the officers’ testimony, and this assignment has an absence of merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges by this assignment that the trial judge erred in accepting Barbara Ray as an expert witness in the field of serology. The applicable statute, La.R.S. 15:466, reads as follows:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

This provision necessarily vests the trial judge with a great amount of discretion, and his determination as to the competency of an expert witness will not be upset unless the reviewing court is convinced that a clearly erroneous decision was made. State v. Sherer, 411 So.2d 1050 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. Lawson, 393 So.2d 1260 (La.1981); State v. Williams, 386 So.2d 1342 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), certiorari denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25. In our review of the record, we cannot find that the trial judge abused his great discretion in accepting Ms. Ray as an expert in the field of serology. That she had not been qualified as such an expert before this trial is of no consequence. To hold otherwise would preclude an “expert” from ever passing muster. This assignment has no merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment defendant argues that the trial court erred in allowing the prosecutor during her closing argument to allude to evidence which was not in the record. Specifically, defendant complains of the prosecutor’s statement that she

“[hjeard Miss Ray testify that there was type 0 blood. That type 0 blood was found on the victim’s underwear. And that blood was found on the subject’s [defendant’s] underwear, but, [sic] it was so small that she couldn’t type it.”

A review of Ray’s testimony reveals that the blood on the victim’s (Brenda’s) underwear was from Group A, not 0. Ray also stated that she was unable to group the blood on defendant’s underwear and that she did not know what his blood type was.

Initially, we note that defendant failed to preserve his right to raise this issue on appeal by failing to object contemporaneously. The trial judge was not afforded the opportunity to timely correct any alleged errors, and the defects now complained of are deemed to be waived. La.C.Cr.P. Art. 841; State v. Brogdon, 426 So.2d 158 (La.1988).

However, we do note that the standard for appellate reversal is whether we are convinced that the complained of remarks influenced the jury and contributed to its verdict. State v. Barrow, 410 So.2d 1070 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981). Applying that standard, we cannot find that defendant was prejudiced by the prosecutor’s remarks or that the prosecutor’s erroneous statement that the serologist (Ray) had found Group O blood, contributed to his guilty verdicts.

Closing arguments are to be limited to the evidence admitted, to the lack of evidence presented, to the conclusions of fact that may be drawn therefrom, and to the law applicable to the case. La.C.Cr.P. Art. 774; State v. Messer, 408 So.2d 1354 (La.1982). In the instant case, the State in closing referred to Group O blood, rather than to Group A, which had been the type entered into evidence. However, the erroneous reference to blood typing failed to prejudice defendant inasmuch as he was never linked to any blood group.

The error made by the State was, accordingly, of no consequence to the jury’s verdict, and this assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends that a reversible error was committed when the trial court allowed into evidence police photographs which were not included in the State’s answers to the defendant’s motion for discovery. The photographs (two) were taken at the scene of the crime, and defendant alleges that he was not made aware of their existence until the State sought to introduce them into evidence. In his motion for discovery, defendant requested to be allowed to inspect and reproduce any photographs in the State’s possession, which were material and relevant to the issue of guilt or innocence. The State responded to this request by authorizing defendant to inspect the objects and items in the possession of the Lake Charles City Police or the Calca-sieu Parish Sheriff’s Office. Counsel stated that the photographs were not among the items he was allowed to view.

Under Article 718 of the Code of Criminal Procedure, defendant was entitled to inspect and reproduce the photographs if they were within the possession of the State. If they were not yet available, but subsequently became so, the State was under the continuing duty to disclose them to the defendant. La.C.Cr.P. Art. 729.3; State v. Strickland, 398 So.2d 1062 (La.1981). The remedies available for noncompliance are set forth in La.C.Cr.P. Article 729.5:

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

We observe that defendant did not request any of these remedies from the trial judge. He merely objected to the photographs on the grounds that they had not been described in the State’s answer to the motion for discovery.

We shall assume that the State erroneously failed to comply with its duty to provide defendant access to the two photographs. However, we cannot find that this constituted reversible error. It is only when the defendant has been prejudiced by the State’s failure to disclose that he is entitled to a reversal. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Vaccaro, 411 So.2d 415 (La.1982). In the instant case, there has been no suggestion that the State has acted other than in good faith in seeking to comply with defense counsel’s discovery requests. Counsel did not allege at trial, nor in their briefs before this court, that defendant was prejudiced by the State’s good faith omission, and we are unable to find any. See State v. Washington, 407 So.2d 1138, 1146 (La.1981) (Justice ad hoc Doucet). For the reasons cited above this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 9

By this assignment defendant alleges that the trial court erred in speaking to him in a hostile tone, while they were in the presence of the jury. The record reveals that during his direct examination, the defendant was repeatedly asked by his counsel to speak so that he could be understood. The trial judge finally told the defendant to get rid of the gum or whatever other item was in his mouth, but he was told by defense counsel that the defendant didn’t have anything in his mouth. We do not find that the defendant was spoken to in a “hostile tone”, nor have we been informed as to the relief desired, or directed to any authority supporting an unnamed relief.

More importantly, we note that the defendant failed to lodge any objection before the trial judge, such that this issue is not properly before us. La.C.Cr.P. Art. 841. This assignment is, therefore, meritless.

ASSIGNMENT OF ERROR NO. 10

This assignment addresses the trial judge’s decision to allow into evidence a rape kit performed on one of the victims, which defendant contends was entered without the State having proved the proper chain of evidence and without a proper foundation having been laid for its introduction. Initially, it should be observed that a continuous chain of custody need not be proven; it suffices if the evidence in its entirety establishes that it is more probable than not that the rape kit introduced into evidence was the one used on the victim (Brenda). State v. Sharp, 414 So.2d 752 (La.1982); State v. Davis, 411 So.2d 434 (La.1982). Any alleged deficiencies in the chain of custody are attributed to the weight of the evidence, not to its admissibility. State v. Tonubbee, 420 So.2d 126 (La.1982).

In the instant case, the State established by the testimony of Detective Rei-necke that he had been given the sealed rape kit performed upon Brenda by the examining physician, Dr. Tyson Barnes. Although the kit was not handed to Rei-necke personally by Dr. Barnes, it did come from the nurse who assisted the physician in the preparation of the kit. Reinecke then delivered the completed kit to the official custodian of evidence at the Lake Charles Police Department and subsequently identified that kit positively at trial. We find that the State clearly satisfied its foundation and chain of custody requirements and that the rape kit was, therefore, properly admitted into evidence. This assignment is lacking in merit.

ASSIGNMENT OF ERROR NO. 11

This assignment addresses the trial judge’s ruling which sustained the State’s objection to certain remarks made in closing argument by defense counsel. The pertinent colloquy is set forth as follows:

“MR. SCHRUMPF: ... Brenda’s lying, Melissa’s lying. Before you go back into the jury room to deliberate, of course, Ms. Oubre is going to get a chance to rebut any and all of my arguments because the burden is on her, because the burden of proof beyond a reasonable doubt is so great, she is going to get another attempt to talk to you. Before she does, I want you to remember just recently that men in Texas and Ohio were convicted of rape charges ...
MS. OUBRE: ... Objection, Your Honor.
THE COURT: Objection sustained.
MR. SCHRUMPF: Your Honor, merely an argument . .. alluding to other cases.
MS. OUBRE: He can only refer to facts that were brought out on this witness stand in this courtroom.
THE COURT: Your [sic] objection is sustained, Mr. Schrumpf.”

We have previously addressed (in assignment of error number seven) the permissible scope of closing arguments set forth in La.C.Cr.P. Art. 774. The trial judge has been afforded wide discretion in confining those arguments within the proper scope. State v. Toomer, 395 So.2d 1320 (La.1981). Defense counsel’s reference to two other rape convictions in Texas and Ohio, unrelated to the facts introduced into evidence, was not within the proper scope of closing argument, and the trial court did not err in sustaining the State’s objection to those remarks. See State v. Weathers, 320 So.2d 895 (La.1975). This assignment has an absence of merit.

ASSIGNMENT OF ERROR NO. 12

By this assignment defendant alleges that the State produced insufficient evidence to support the convictions for aggravated rape and attempted aggravated rape. We are required to review this argument under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), notwithstanding our constitutionally limited power of reviewing only questions of law in criminal cases. La. Const. Art. V, § 10. See also State v. Gatson, 434 So.2d 1315 (La.App.3rd Cir.1983) (with special concurrence by the author).

Applying the Jackson standard the Louisiana Supreme Court has held that a

“conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Graham, 422 So.2d 123, 129 (La.1982).”

The crime of aggravated rape is defined 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.
Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

And rape is defined in La.R.S. 14:41:

“Rape is the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent.
Emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.
For the purposes of this Chapter, a person shall not be considered to be a spouse if a judgment of separation from bed and board has been rendered.”

An attempt has been legislatively designated in La.R.S. 14:27(A) as follows:

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

In reviewing defendant’s conviction for the aggravated rape of Brenda Anderson, we find that the State presented sufficient evidence to satisfy the due process requirements of Jackson v. Virginia, and its Louisiana progeny.

In carefully reviewing the testimonies we cannot find that the defendant’s purported alibis are supported by the evidence. Brenda testified without hesitation that, when she was alone in the vacant apartment with the defendant, he pulled out a knife and, holding it to her throat, threatened to kill her if she did not submit to him sexually. She unequivocally stated that sexual penetration occurred. Although the rape kit performed upon Brenda failed to indicate the presence of sperm, the negative inference created is lessened by the fact that the rape occurred during the victim’s period of menstruation, and the State introduced expert testimony to the effect that this factor will lessen the possibility of detecting sperm.

The examining physician testified that he was unable to perform as thorough a physical examination upon the victim as he would have preferred, primarily because of her extreme discomfort and refusal to let him conduct a complete internal examination. However, he did note that the physical appearance of her vagina indicated that it had been irritated recently and, in his opinion, sexual penetration had recently occurred.

The defendant’s fingerprints were not found on the knife seized by the officers, but the State’s witness who examined the knife said he could not take any prints from it due to the rough nature of the blade and the tape on the handle. Both victims identified at trial the knife as being the one with which defendant threatened them. Additionally, the investigating officers testified that when they first saw Brenda in the car she was still crying from her prior ordeal, and she told them that she had just been raped by the defendant. We find that the evidence abundantly supports the jury’s finding of guilt as to defendant’s aggravated rape of Brenda Anderson. See State v. Dawson, 392 So.2d 445 (La.1980).

We also find that defendant’s conviction for the attempted aggravated rape of Melissa August was supported by evidence sufficient to amply satisfy the review standards of Jackson v. Virginia. See State v. Washington, 430 So.2d 641 (La.1983). Brenda told the officers that the defendant was inside with Melissa and about to rape her also. When the defendant was arrested and searched the arresting officer detected that the defendant had an erection. Melissa testified that the defendant told her to take off her clothes and that he had pulled down his pants prior to hearing the officers at the locked door. She also said that he threatened with his knife to kill her and her mother if she didn’t submit to him sexually. Melissa promptly told the arresting officers that defendant was about to rape her also.

Defendant’s contention that the State failed to prove that Melissa was less than twelve years old (for purposes of La.R.S. 14:42(4)) is equally without merit, as Melissa testified that she was eleven years old on the day of trial. See La.R.S. 15:430.1. Even if the age of this victim had not been established by the State, the evidence was sufficient to have convicted defendant under Sections 2 and 3 of La.R.S. 14:42. For all of these reasons, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends that the trial court committed reversible error in allowing the State in its closing argument to refer to evidence not in the trial record; specifically, the prosecutor’s statements as to the identity of the anonymous phone caller to the police. This issue is not properly before us, as defense counsel failed to object contemporaneously to the complained of remarks (La.C.Cr.P. Art. 841), and the assignment, accordingly, is without merit.

ASSIGNMENT OF ERROR NO. 14

By this assignment defendant alleges that the trial court erred in not placing the State’s witnesses under the rule of sequestration. Article 764 of the Code of Criminal Procedure requires that “upon request of the state or the defendant the court shall” order the witnesses to be sequestered. In the instant case the defendant did request such an order, which was granted by the trial judge. However, at the time of that order none of the State’s witnesses were present, although the trial judge told the prosecutor that, when the State’s witnesses appeared, they were to be instructed as to the sequestration order.

Defendant contends that this order was violated, as the State’s witnesses were never sequestered. No support for this allegation has been provided, nor can we find that defendant properly afforded the lower court an opportunity to cure this purported defect as required by La.C.Cr.P. Art. 841. Of equal importance is our observation that defendant has failed to make any showing that he was prejudiced by a defective sequestration. La.C.Cr.P. Art. 921; State v. Tauzier, 397 So.2d 494 (La.1981); State v. Ardoin, 340 So.2d 1362 (La.1976). For these reasons, this assignment has no merit.

ASSIGNMENT OF ERROR NO. 15

In his last assignment defendant alleges that the trial court erred in excusing certain prospective jurors without notification to defense counsel and in excusing a prospective juror from service, when his name was drawn from the jury box during jury selection. The lower court’s authority to excuse prospective jurors is set forth in La.C.Cr.P. Art. 783, in pertinent part as follows:

“A. The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. The panel shall be selected from the remaining members of the petit jury venire. The court, either on its own motion, or that of the state or a defendant, may order the attachment of an absent and unexcused petit jury venireman.
B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.”

In the case sub judiee, the trial court released several jurors for health reasons.

We find the Supreme Court’s recent ruling in State v. Brown, 414 So.2d 726 (La.1982), to be controlling over this issue:

“The court is authorized to excuse a person from jury service either prior to or after his selection for the general venire, jury pool or jury wheel if such service would result in undue hardship or extreme inconvenience. The court may take this action on its own initiative or on the recommendation of an official or employee designated by the court. See C.Cr.P. art. 783(B). We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Sheppard [350 So.2d 615], supra. The trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Edwards, supra; State v. Sheppard, supra. The defendant makes no allegation of fraud or collusion nor does the record give any indication of such; therefore, the court’s action in releasing the proposed jurors will not be disturbed.” At 728.

The present defendant has made none of the showings of prejudice, via fraud or collusion, referred to in Brown, supra, and we do not find that the lower court abused its great discretion in releasing sua sponte several prospective jurors due to their ill health. This assignment is, therefore, meritless and defendant’s convictions and sentences for the crimes of aggravated rape and attempted aggravated rape are

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

I specially concur in this case which I authored, only insofar as the review of facts doctrine of Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979) is concerned. I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). The continued application of the Mathews rationale relegates the appellate courts to nothing more than “second guessers” of the triers of fact.

       For reasons assigned therein, the author of this opinion has also filed a concurring opinion.

      . Defendant’s requests for a sanity commission report and a hearing on same were granted, and he was found sane and able to proceed to trial.

      . Ten (10) jurors voted guilty, one (1) voted not guilty, and one (1) did not vote.

      . The articles provide:
      Art. 718:
      “Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
      (1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
      (2) are intended for use by the state as evidence at the trial, or
      (3) were obtained from or belong to the defendant.
      The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.”
      Art. 729.3:
      “If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.”

      . Apparently the call was received on the Crime Stoppers phone line at the Police Department.

      . It appears that defendant may not have been the biological father of either victim, although Brenda bears his surname. Defendant and the victims’ mother had a “common-law” marriage.

      . During a patdown search of the defendant, Reinecke detected that the former had an erection.

      . In 1979, defendant was sentenced to fifteen (15) years on that conviction.

      . The other crimes admitted to were forgery and aggravated battery.

      . Although the trial court’s reasons for sustaining the objection were not provided expressly, the ruling appears to have been correctly based on the lack of relevancy of the defendant’s response. La.R.S. 15:435 and 15:441.

      . La.R.S. 15:441 states:
      “Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent.
      “Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

      . Defendant made no proffer as to what his testimony would have established.

      . Defendant argues for the first time in brief that the hearsay exception for the original complaints made by rape victims denies him (defendant) the equal protection of the law by making a special exception based on sex. Neither authorities nor rationale other than ipse dixit are set forth in' support of this unexplained assertion. Nor are we aware of any.

      . La.R.S. 15:447 states:
      “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
      La.R.S. 15:448 states:
      “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

      . The actual length of time Is unknown, but, due to the facts that the officers responded promptly to the call and that Melissa had not yet been raped, it appears that approximately fifteen (15) minutes had passed between Brenda’s rape and her statement to the officers.

      . Counsel for defendant alleges that he was denied his right to cross-examine the victims about their statements, as they testified before the officers did. No showing has been made that he attempted to have those witnesses recalled or that he timely raised this issue before the trial court. It presents, therefore, nothing for us to review. La.C.Cr.P. Art. 841.

      .It is also noteworthy that Ms. Ray’s testimony was corroborated by her supervisor, Mr. Francis Touchet, when he testified at trial. Neither Ms. Ray nor Mr. Touchet could provide any evidence linking the victims with any sexual activity. Therefore, defendant was not prejudiced by Ray’s testimony. See La.C.Cr.P. Art. 921.

      . “Section 10. (A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.
      (B) Scope of Review. Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts. In criminal cases its appellate jurisdiction extends only to questions of law.
      (C) Other Criminal Matters. In all criminal cases not provided for in Paragraph (D)(2) or Paragraph (E) of Section 5 or Paragraph (A)(3) of this Section, a defendant has a right of appeal or review, as provided by law.”