author: GARRISON, Judge.

text:
    Sylvia ANDREWS v. LOUISIANA COCA-COLA BOTTLING CO., LTD., W. Breaux, Commercial Union Insurance Company and James Steward.
    No. CA 1723.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearings Denied Sept. 27, 1984.
    Writ Denied Nov. 9, 1984.

      Robert P. Charbonnet and Wayne E. Garrett, Charbonnet & Charbonnet, New Orleans, for plaintiff-appellant.
    Normand F. Pizza and Michael R. Zsem-bik,'Reuter, Reuter, Reuter & Pizza, New Orleans, for defendant-appellant.
    Anthony J. Livaccari, Jr., Brough & Li-vaccari, New Orleans, for defendants-ap-pellees.
    Before REDMANN, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered June 22, 1983, granting damages in the amount of $5,179.00 to plaintiff, Sylvia Andrews, a guest passenger, finding the drivers of both vehicles each 50% negligent, and ordering both drivers, an employer, and their respective insurers to pay 50% of the amount awarded.

From that judgment which we affirm, plaintiff appeals, alleging that the amount awarded is so low as to constitute a clear abuse of discretion.

Additionally, defendant, La. Coca-Cola Bottling Company appeals alleging that the trial court erred in finding that its driver, Welman W. Breaux was negligent in causing the accident at issue.

On March 4, 1981, Sylvia Andrews and her sister were guest passengers in a vehicle driven by James Steward. Mr. Steward had agreed to drive plaintiff to Moffet’s Pharmacy on St. Charles Avenue in New Orleans for the purpose of having a prescription filled. The Steward vehicle was outside of Moffet’s Pharmacy and all three people were in the car when the accident occurred. Mr. Steward’s insurer is Commercial Union Insurance Company.

Welman W. Breaux was driving a delivery truck owned by his employer, La. Coca-Cola Bottling Co. Although it was not part of his regular route, on the date in question Mr. Breaux was instructed by his employer to make a delivery stop at Moffet’s Pharmacy. The accident occurred at approximately 3:00 p.m. on a bright, sunny day.

At this point the testimony differs dramatically. Both Steward and Andrews testified that their car was parked, that the motor was off, and that in disembarking from their vehicle, Mrs. Andrews stepped directly onto the curb and was not required to step into the street prior to stepping onto the curb. They further testified that the truck hit their vehicle in an ill-fated attempt to parallel park and/or turn.

Mr. Breaux testified that the car’s motor was running, that the car was parked 3 to 4 feet away from the curb, thus protruding into the street, and that the Steward vehicle pulled out into the street, hitting the truck.

There is no police report in the record and there are no photographs of the damage to either vehicle. Mrs. Andrews testified that the Steward vehicle was hit as follows:

“Q. You don’t know where the truck hit the car, do you?
A. Yeah.
Q. Where did it hit the ear?
A. In the front of the car. On the driver’s side.
Q. Did it hit in the left front fender area?
A. Around that area close to the door. Q. Close to the door?
A. Around it. Yes.
Q. Close to the door or close to the front fender?
A. I guess between the front fender and the door.
Q. You’re certain of that?
A. I wouldn’t say that I was really certain of it because I didn’t really know. I wasn’t even thinking about the car, you know. I was thinking about after the car hit us. And how it was, really was a surprise to me, you know, after we had parked there.
Q. When we took your deposition on February 2, 1982, I’m looking at page 15 of the deposition, I asked you, ‘Did the truck hit the front of the car or back of the car?’, and your answer was then, ‘I’m not sure. T know it was on the driver’s side.’
A. That’s the same thing I’m telling you now.
Q. But you don’t know where on the driver’s side, do you?
A. I know it had to be close to the front area.
Q. All right.
A. Between the door and fender.” (Tr. p. 21-22).
James Steward testified as follows:
“Q. After the collision occurred where did his vehicle come to rest? Where did he stop? After the two cars collided about where did his vehicle stop?
A. His vehicle was still right to my car where he hit me. Where the back tire hit me on the left.
Q. Was it — that would be his right back tire?
A. Yes.
Q. The area of his right back tire made contact with what area of your vehicle? A. On the front fender of my vehicle. Q. On the left side?
A. It was on the left side.
Q. That’s the driver’s side?
A. The driver’s side. That’s right.” (Tr. p. 75).
Welman Breaux testified as follows:
“Q. At the time you noticed him what was his vehicle doing?
A. Sitting there parked. Waiting.
Q. As you proceeded to pull into Mof-fett’s Drug Store how fast were you going?
A. I would say about five miles. I was getting ready to park. I was driving in to park.
Q. Where was it your intention to park, parallel to the curb on St. Charles?
A. Yes, it was.
Q. Now, was there a collision between your vehicle and the Steward vehicle?
A. When you say “collision” what do you mean?
Q. Was there contact between the two vehicles?
A. Yes, there was.
Q. The contact occurred while you were in the process of trying to bring your truck in line with the curb?
A. Yes.
Q. What part of your vehicle struck which part of Mr. Steward’s vehicle?
A. Well, I didn’t strike Mr. Steward’s vehicle. He struck the truck. Struck the tire rim of the truck. As I was coming up I noticed he and the lady, I don’t know if they were arguing or fussing, but they were talking. I seen him as I was pulling up. I got bad vibes and said, ‘I’d better watch the car’ because he wasn’t paying attention to what he was doing.” (Tr. p. 86-87).

On appeal, the standard to be applied is whether the trial judge was manifestly erroneous in his factual determinations. Canter v. Koehring Co., 283 So.2d 716 (La., 1976); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978). The accident at issue is one of those cases in which no one will ever know what really happened. This court, however, must give great deference to the judgment of the trial judge who is in a position to observe the demeanor of the witnesses in assessing credibility. It cannot be said that the trial judge was manifestly erroneous.

Turning to the second issue on appeal, it should be noted that plaintiff first visited her physician, Dr. Nathaniel D. Ross two days after the accident on March 6, 1981 with complaints of headaches, pain and stiffness in the neck, shoulder, lower back and knees. Dr. Ross’s examination revealed:

“... an abrasion of the forehead about an inch to inch and a half area. Swelling and tenderness in the immediate surrounding area. The neck showed restricted range of motion in all directions. The neck pain was aggravated by attempts to flex, extend or rotate. There was spasm and tenderness in the posteri- or paraspinous cervical muscles on palpation. The shoulders, restricted motion of both shoulders. Pain aggravated by motion. Tenderness in both supraclavicular areas and in both shoulder girdle areas. The lumbar sacral spine showed restricted range of motion. The low back pain was aggravated by flexion, extension and rotation. There was a spasm and tenderness in the lower back from the region of the second lumbar to the first sacral vertebrae area. The straight-leg raising and Lasegue’s tests were negative. There was tenderness and minimal swelling of both knees in the patella areas. The neurological examination shows the cranial nerves to be intact. The deep tendon and cutaneous reflexes were normal. There was no abnormal reflex. X-rays taken on 3/24/81 and multiple views showed straightening of the cervical spine normal lordotic curve consistent with muscle spasm and irritability.” (Tr. p. 41-42).
Dr. Ross’s diagnosis at that time was: “... contusion, abrasion and swelling of the forehead, sprained cervical musculo-skeletal system, contusion and sprain of both shoulders, lumbosacral sprain and contusion of both knees.” (Tr. p. 43).

Dr. Ross prescribed pain medication, muscle relaxants, cortisone injections, microwave diathermy, and ultrasound therapy. She was given a cervical collar to wear on the neck and a lumbar sacral brace. She was advised to use home heat treatments and to sleep on hard surfaces. She showed gradual improvement and was discharged on July 14, 1981 with a referral to an orthopedist, provided: The discharge diagnosis

"... she had complete range of motion of the cervical and lumbosacral spine with minimal pain at the extremes of rotation.”
“She had minimal pain at that time. The neurological examination was normal and then she was discharged on this occasion. At that time she was told to discontinue the cervical collar and lumbosacral brace and given muscle relaxants and advised to return if symptoms reoccurred.” (Tr. p. 48).

During the period from March 6th through July 14th, plaintiff had 38 treatments from Dr. Ross’s office totaling $1,060.00.

Some three weeks later, on August 23rd, plaintiff returned to Dr. Ross’s office with complaints of neck stiffness and pain as well as lower back stiffness and pain. Dr. Ross’s examination at that time revealed the following:

“The neck showed restricted range of motion on flexion, extension and rotation of lateral motion, and the neck pain was aggravated by motion and continued minimal spasm on palpation to the posterior paraspinous cervical muscles. The lumbar spine showed restricted range of motion of the lumbar spine, and flexion, extension and rotation and lateral motion of the low-back pain was aggravated by motion. There was tenderness on palpation from the third to first sacral vertebrae areas. The straight-leg raising test was positive fourteen inches bilaterally. The neurological examination, the complete neurological examination including a fundoscopic examination revealed no evidence of abnormal neurological findings.” (Tr. p. 45).

At that time Mrs. Andrews was placed on microwave diathermy and ultrasound therapy. She was required to recommence wearing both the cervical collar and the lumbo sacral brace; she was once again advised to sleep on a hard surface. Additionally she was prescribed Parafon Forte, two tablets four times a day, injections of Dicatron, and Tylenol No. 3 with ½ gram of Codeine, two tablets every four hours. Plaintiff remained under Dr. Ross’s care from August 3rd through October 26, 1981, during which period she was treated on 17 occasions. Dr. Ross’s bill for that period is $490.00.

The trial judge provided the following oral reasons for judgment:

“The Court, having listened to the testimony of all of the witnesses, the plaintiff and the two defendants, Mrs. Andrews, Mr. Breaux and Mr. Steward, and the Court is impressed with the testimony of Mr. Breaux and the impartial nature in which he rendered it. And also the testimony of Dr. Ross.
The Court finds, as a matter of fact, that Dr. Ross in his examination of the lady and the therapy, while the Court believes it to be excessive for the time that he was treating the lady for the injury that was involved, and the physical contact of the two automobiles or the automobile and the truck seems to be rather slight insofar as the point of impact on the truck being the rear wheel, the right rear wheel of the truck, the Court feels that the injuries to Mrs. Andrews in accordance with the testimony of Dr. Ross, she was discharged July lj, 1981, for the medical bill one thousand sixty dollars and one hundred nineteen dollars that was given for the x-rays to Dr. Meyers, so that’s eleven hundred seventy-nine dollars in medical, and the Court does not give any medical to Dr. Ross for that period of August the 3rd until what is considered the second discharge date. In fact, it seems that thirty-seven (sic) times within this period of time for therapy seems to be rather excessive, even though the Court did allow the full amount of money involved, one thousand sixty dollars, the Court believes that both parties were at fault. That Mr. Breaux was attempting to pull the truck to park, and it’s quite obvious on the part of the testimony of Mrs. Andrews and Mr. Steward that neither was paying any attention, and the court does feel he was in the process of moving out and that the truck continued on even though he saw that the party was about to move out, as was the testimony of Mr. Breaux. He feels on comparative negligence they were both negligent in the amount of fifty per cent each, so the medical bills for Dr. Ross and Dr. Meyers will be eleven hundred seventy-nine dollars, and the Court awards the passenger Mrs. Andrews, Sylvia Andrews, four thousand dollars for pain and suffering. So, that’s eleven hundred seventy-nine dollars for medical and four thousand for pain and suffering. That’s a total of fifty-one seventy-nine to be split between Mr. Breaux and his insurers and the Coca Cola Bottling Company and Commercial Union and Mr. Steward.” (Tr. p. 117-119) (emphasis added).

Apparently, the trial court deemed this case to be one of “excessive treatment”, reasoning that the amount of medical treatment perhaps may not have been justifiable in light of the severity of the injuries. On that basis, the trial judge denied recovery for the second period.

In Hillebrandt v. Holsum Bakeries, 267 So.2d 608, 610 (App.4th, 1972), Judge Redmann, as organ of the court, stated on rehearing:

“In the absence of fault on the part of the patient in accepting the treatment, the fault which causes the patient’s predicament is not that of the doctor alone, but that of doctor and tortfeasor. And it is foreseeable to the tortfeasor that the tort may place the victim in the hands of an overcharging or overtreating physician, since such physicians are not so unheard of as to make it unreasonably unlikely that overcharge or overtreatment of a tort victim may occur.
In our opinion the blameless tort victim should not bear the expense of litigating with his doctor and should certainly not bear the risk of having to pay tort-caused charges the tortfeasor escapes, since neither item is attributable to the victim’s fault.
A tortfeasor is liable for additional suffering caused his tort victim by inappropriate treatment by the attending physician; Hudgens v. Mayeaux, 143 So.2d 606 (La.App., 1962). See also Thibodaux v. Potomac Ins. Co., 201 So.2d 159 (La. App., 1967); Restatement Torts 2d Section 457. The tortfeasor should similarly be liable to the victim for additional monetary damage caused by excessive treatment, which is also the result of the foreseeable cumulation of fault of tort-feasor and doctor.
As between tortfeasor and doctor, perhaps the tortfeasor should not ultimately be liable, since no one should have to pay a doctor for overtreatment. But as between tortfeasor and victim (not himself at fault in accepting the treatments) the tortfeasor must be liable.”

See also: Dequeat v. Dobbins, 334 So.2d 555 (App.4th, 1976); Brown v. Bright, 346 So.2d 281 (App.4th, 1977); Blappert v. Lopez, 357 So.2d 1331 (App.4th, 1978). Accordingly, the trial court committed an error of law in failing to allow the $490.00 medical bills for the second period.

Lastly plaintiff argues that the amount awarded for pain and suffering is so low as to constitute a clear abuse of discretion. While the amount awarded for pain and suffering stands at the lower limits of the trial judge’s “much discretion”, we cannot say that the amount awarded constitutes a clear abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La., 1979). Accordingly, the judgment below is affirmed on this issue.

For the reasons discussed, the judgment of the district court is amended as follows and, as amended is affirmed:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Sylvia Andrews in the full and true sum of FIVE THOUSAND SIX HUNDRED SIXTY-NINE AND NO/100 ($5,669.00) DOLLARS, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert fee of Dr. Nathaniel Ross is set at the sum of ONE HUNDRED FIFTY AND NO/lOO ($150.00) DOLLARS:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Commercial Union Insurance Company and James Steward. are liable unto plaintiff, Sylvia Andrews for fifty (50%) per cent of the damages and costs as hereinabove set forth, and that Louisiana Coca Cola Bottling Company, Ltd., and W. Breaux are liable unto plaintiff, Sylvia Andrews, for fifty (50%) per cent of the damages and costs as hereinabove set forth.”

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenny CASIMIER.
    No. KA-1706.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    George G. Angelus, New Orleans, for defendant-appellant Kenny Casimier.
    Before GARRISON, KLEES and WARD, JJ.
   KLEES, Judge.

On October 28, 1982, the appellant Kenny Casimier was indicted for aggravated rape in violation of R.S. 14:42. He was arraigned on November 12th and pled not guilty. On March 3, 1983, a twelve member jury found him guilty of sexual battery in violation of R.S. 14:43.1. A pre-sen-tence investigation was ordered at that time. On April 8, 1983, the appellant’s Motion for Post Verdict Judgment of Acquittal and for New Trial were denied, and he was sentenced to serve ten years at hard labor. A Motion for Appeal was filed on April 19, 1983.

FACTS:

Early in the morning of September 5, 1982, Ms. S.C. returned to her home which she shared with her two daughters, one son, and the defendant. The five-year-old daughter was awake and appeared frightened when the mother arrived home, but she would not tell her mother what was troubling her. That evening the mother took the child to Charity Hospital.

The child was examined at the hospital, where it was found that her hymen was torn but that she had no bruises or lacerations. While at the hospital, the child was interviewed by Ms. Stephanie Bender, a human service worker for the Orleans Parish Child Protection Center. The child told Ms. Bender that she and her “daddy” were “playing booty” the night before, and that he got in bed with her nude and stuck his “weenie” into her between her legs. The child was later interviewed by Det. Arthur Arnolie of N.O.P.D., and she told him basically the same story. Det. Arnolie arrested the defendant that night.

The five-year-old child testified that while her mother was gone, the defendant came into her room nude and got on top of her. She testified that the defendant touched her between the legs with his hand and with his “weenie.” She testified that he hurt her and she cried. The defendant told her not to tell anyone what had happened, but she testified that she told her mother and a policeman at the hospital what the defendant had done to her.

The defendant testified that he was the father of all three of Ms. S.C.’s children (contrary to Ms. S.C.’s testimony that the five-year-old was not his daughter). The defendant denied having any sexual contact with the child. He testified that all three children slept in the same room and that the alleged victim stayed in her bed all night.

The defendant’s father testified that the day after his son’s arrest he and his son’s attorney visited Ms. S.C. at her apartment. He testified that Ms. S.C. told them that the child had told her that the defendant had not touched her.

ERRORS PATENT AND SUFFICIENCY OF THE EVIDENCE

A.Errors Patent

A review of the record reveals that the trial court failed to wait twenty-four hours after the denial of the appellant’s motion for new trial before sentencing him. The transcript of his sentencing on April 8, 1983 reveals that the appellant did not waive this delay. The Supreme Court has held such error to be harmless unless prejudice is shown by the defendant. State v. Brogdon, 426 So.2d 158 (La.1983); State v. White, 404 So.2d 1202 (La.1981). Because the appellant has not shown any prejudice here and has in fact not even raised this issue, we consider this error harmless.

B. Sufficiency of the Evidence

See assignment of error number six.

C. Assignments of Error

I and II

The appellant’s first and second assignments of error concern the competency of the victim to testify at trial. By his first assignment, the appellant alleges that the trial court erred in ruling her competent to testify. By his second assignment, he contends that the trial court erred by failing to ask her questions prepared by defense counsel to determine her understanding and capacity to testify.

The test to determine the competency of a young witness to testify is set forth in R.S. 15:469, which provides:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

The Louisiana Supreme Court has long held that the trial judge’s determination of the competency of a witness is entitled to great weight on review because the judge has the opportunity to see and hear the witness, State v. Foy, 439 So.2d 433, 435 (La.1983); State v. Edwards, 420 So.2d 663, 677 (La.1982); State v. Humphrey, 412 So.2d 507, 516 (La.1981); State v. Skipper, 387 So.2d 592, 595 (La.1980), and such finding of competency should not be disturbed absent a showing of manifest error. State v. Arnaud, 412 So.2d 1013, 1018 (La. 1982). Unresponsive answers given by the witness do not necessarily indicate incompetency of the witness, especially in light of the intimidation a child may feel at the seriousness of the trial and the formality of the courtroom. State v. Foy, supra; State v. Edwards, supra; State v. Humphrey, supra. The key determination that must be made seems to be whether the witness is able to understand truth from lies and to understand the serious need to relate the truth or suffer the consequences. State v. Foy, supra; State v. Edwards, supra; State v. Humphrey, supra.

Witnesses as young or younger than the victim here have been deemed competent to testify. In State v. Arnaud, supra, the trial court found the four-year-old witness competent to testify even though his conception of time was not good. His testimony as a whole, however, established an adequate time frame for the events he had witnessed. The Court held there was no error in the trial court’s finding of competency.

In State v. Skipper, supra, the trial court questioned both the five- and the seven-year-old witnesses about their understanding of the truth and the punishment for lying. In State v. Pace, 301 So.2d 323 (La.1974), the trial court questioned the five-year-old witness on her ability to recognize the truth and her knowledge of the consequences of not telling the truth. The court found the witness to be competent to testify.

In State v. Noble, 342 So.2d 170 (La. 1977), the four-year-old victim testified readily to most questions but then became unresponsive when questions concerning her rape were asked. After a fifteen minute break, the victim again took the stand and then testified as to the rape. The Court found no abuse in the trial court’s determination of competency of the victim.

However, in State v. Dykes, 440 So.2d 88 (La.1983), the victim was three years and ten months old at the time of the trial. The transcript of the pre-trial competency hearing was unavailable; thus, the Supreme Court could only review testimony from the trial to determine the victim’s competency. This transcript revealed that the victim was vague as to what happened to him and contradicted himself during his testimony. In addition, there was contradictory testimony by another witness. The victim’s responses as to his understanding for the need to tell the truth were vague. He also testified that others (including his father) had told him what to say in court. The Supreme Court found this witness to be incompetent to testify and it reversed the defendant’s conviction. Id. at 93.

Here, the victim’s testimony at the competency hearing and at trial established that she knew she would be punished if she did not tell the truth. Her testimony in chambers at the competency hearing appears to be direct and unhesitating. At trial in the courtroom her testimony, like that of the victim in State v. Noble, supra, faltered when she was asked about the attack on her. Yet between the use of dolls to illustrate the attack and questioning by the prosecutors she .was able to tell the jury what had happened to her. Thus, it does not appear that the trial court erred by determining that she was competent to testify at trial. Assignment of error number one is without merit.

The appellant’s second assignment is that the court erred by curtailing his examination of the victim and by failing to ask her the thirty-two questions he propounded to establish her competency. Some of these questions concerned her ability to understand the truth and to understand that she must tell the truth. These subjects were adequately covered by the judge’s own questions to the child. Other questions dealt with whether she knew that the appellant could be imprisoned for life if found guilty, whether she would be able to tell her story at trial “without making mistakes,” and whether she understood exactly what the appellant had done to her.

The trial judge apparently decided not to ask most of these questions because many of them (especially with respect to the nature of the crime and the punishment the appellant could receive) were irrelevant to the issue of her competency to tell the jury what had happened to her. Although the judge did not ask the child any questions about whether anyone had “rehearsed” her story with her, the defense attorney at trial brought out how many times the child had been to court and had spoken to the prosecutors about the case. We conclude that the trial court did not abuse its discretion by refusing to ask the child the somewhat complex questions propounded by the appellant. See State v. Foy, supra. This assignment also lacks merit.

Ill

By his third assignment of error, the appellant contends that the trial court erred by allowing three different prosecutors to examine the child during her direct testimony. Although the appellant could cite no authority for this proposition, he alleges that this use of three prosecutors to extract her testimony concerning the attack on her, unduly prejudiced his case because by doing so, the judge implied to the jury that he believed the prosecutor’s story and would not quit until the “truth” was heard.

There seems to be no statute of jurisprudence on point. R.S. 15:275 provides:

In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a - witness, whether such examination be direct or cross, and even though no objection be urged by counsel.

The Louisiana Supreme Court has held that a trial judge has wide discretion in controlling the examination of witnesses, and a judge’s rulings in this regard are to be disturbed only upon a showing of an abuse of this discretion. State v. Murray, 375 So.2d 80 (La.1979); State v. Lewis, 353 So.2d 703 (La.1977).

Here, the trial judge did allow three prosecutors to question the child on direct examination as to the attack on her. It is evident from the record t^at because of her age she had trouble telln^ her story, and the judge allowed “repetitive” questioning by the prosecutors merely to obtain her testimony. The appellant’s mere allegation of prejudice is not a sufficient showing of abuse on the part of the trial judge. This assignment lacks merit.

IV

By his fourth assignment, the appellant alleges that the trial court erred by permitting the prosecutors to ask the child leading questions to such an extent that they suggested the answers she was to give. The appellant especially points to the child’s use of two dolls to demonstrate the attack on her, alleging that the prosecutor’s “rehearsal” of this demonstration was unduly suggestive and influenced her testimony.

A “leading question” is defined by R.S. 15:277 as “one which suggests to the witness the answer he is to deliver.” Although section 277 limits the use of leading questions to one’s own witness only where the witness is unwilling or hostile, the Supreme Court has held that leading questions may be asked during direct examination of certain witnesses, including children. State v. Kahey, 436 So.2d 475, 493 (La.1983); State v. Vanderhoff, 415 So.2d 190, 194 (La.1982); State v. Bolton, 408 So.2d 250, 256 (La.1981). The Court has held:

[ljeading questions are not the type of prosecutorial error which diminish the reliability of a jury’s verdict ... [ojnly when there is a clear abuse of discretion which prejudices defendant’s rights will a conviction be reversed because of leading questions.
State v. Felde, 422 So.2d 370, 385 (La. 1982).

See also State v. Vanderhoff, supra; State v. Prestridge, 399 So.2d 564, 573 (La.1981).

In State v. Vanderhoff, supra, the trial court allowed the prosecutor to use leading questions while examining the nine-yéar-old rape victim. On review the Court noted that without these questions, it was probable that the victim’s testimony would not have revealed what happened to her. The Court refused to reverse the defendant’s conviction, noting there was no abuse by the trial court in allowing the prosecutor to ask leading questions of “a witness who, because of youth, confusion or otherwise, cannot understand direct questions.” Id. at 194.

In State v. Prestridge, supra, the trial court was found not to have abused its discretion by allowing the prosecutor to ask the twelve-year-old victim leading questions. The Court noted the trial judge carefully monitored the questioning, and there was no indication in the record that the witness acquiesced to any false suggestions made by the prosecutor. The Court found no clear abuse by either the prosecutor in asking the questions nor by the trial judge in allowing such questions to be asked. Id. at 573.

Here, the trial judge did monitor the questioning and did warn the prosecutor at least once about the suggestiveness of her question. As in Vanderhoff, it is quite probable that the child would not have been able to testify as to the attack on her without the aid of leading questions. There is no indication that the child acquiesced to any false suggestions made to her by any of the prosecutors. We conclude that the trial judge did not abuse his discretion by allowing the prosecutors to ask the child leading questions. This assignment lacks merit.

V

By his fifth assignment of error, the appellant alleges that the trial court erred by allowing Ms. Bender, the social worker, to testify as to what the child told her about the attack. The appellant contends that the hearsay exception under which the judge allowed Ms. Bender to testify, that of the first complaint of a young rape victim, did not apply to this case because the evidence indicated that the child’s mother was the first person to receive her complaint.

The Louisiana Supreme Court has held that the first complaint of a rape victim is an exception to the hearsay rule and as such is admissible at trial. In order for this exception to apply, there must be “no unexplained lapse of time between the rape and the victim’s complaint,” and the utterance must be spontaneous. State v. Middlebrook, 409 So.2d 588, 590 (La.1982); State v. Hatcher, 372 So.2d 1024, 1031 (La. 1979). The facts and circumstances must show that the statement “was a product of the shocking episode and not a fabrication.” State v. Prestridge, supra at 572; State v. Adams, 394 So.2d 1204, 1212 (La. 1981).

The lapse of time between the first opportunity for the victim to make the complaint and the making of the complaint itself seems to be the key factor in deciding whether such statement is admissible. Where the statement is made by the victim at the first opportunity to do so safely, the Court has held that such statement is admissible. In State v. Prestridge, supra, the ten-year-old victim’s statement to her babysitter the morning after the attack by her mother’s boyfriend was admissible. In State v. Adams, supra, eight to ten hours had elapsed between the attack on the five-year-old victim by her stepfather and her complaint to another adult. The Court held such statement to be admissible because the child appeared to be upset and frightened at the time of the complaint which was made at the first reasonable opportunity to do so.

In State v. Noble, 342 So.2d 170 (La.1977), two days elapsed between the attack and the statement of the four-year-old victim to her grandmother telling her what happened. The victim had severe injuries and was hysterical at the time of the statement. The Court held that such statement was admissible because the defendant was living with the victim, and her statement to her grandmother was the first opportunity outside the atmosphere of the home for the victim to confide in someone she trusted. Id. at 173.

In State v. McIntyre, 381 So.2d 408 (La.1980), US cert. den. 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980), the Court found that the victim’s statement made to the coroner who examined her was not admissible because many hours had passed since the attack and the victim had spent time in three different police stations where she reported the rape prior to being examined by the coroner and making her statement to him. The Court ruled, however, that the trial court’s error in admitting this statement was harmless due to the fact that it was merely cumulative of other evidence presented at trial which firmly established the defendant's guilt. Id. at 411.

Here, the child told Ms. Bender about the attack the evening after the attack. Although the child’s mother testified that the child did not tell her about the attack until after she told Ms. Bender about it in the hospital, there were indications that the mother called the police concerning the attack prior to taking the child to the hospital. However, Det. Arnolie testified that the mother told him that the child would not tell her anything about the attack.

Additionally, appellant contends that the child’s statement to Ms. Bender was not made at the first opportunity for her to tell anyone about the attack because she could have told her mother about it. However, it is probable that the child would not want to tell her mother about the attack because the offense was perpetrated by her mother’s boyfriend (the appellant). As in Noble, the child’s statement to Ms. Bender was made at the first opportunity to confide in someone outside the atmosphere of the home she shared with the appellant. And we conclude that the “first complaint” exception should apply to this case. This assignment is without merit.

VI

By his sixth assignment of error, the appellant contends that there was insufficient evidence to support his conviction for sexual battery. Specifically, he alleges that the prosecution failed to prove that the child was in fear of receiving bodily harm, an essential element of the offense.

In its review of the sufficiency of evidence to support a conviction, the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

Sexual battery, as defined by R.S. 14:43.1, includes the touching of the genitals of the victim by the offender using any part of the offender’s body, where the victim is not the spouse of the offender and where the offender compels the victim to submit by placing the person in fear of receiving bodily harm. Here, the five-year-old victim testified that the appellant (her mother’s boyfriend) put his “weenie” in her “booty,” pointing to the area between her legs. She also testified that the appellant hurt her when he attacked her and made her cry. The passage cited by the appellant in his brief reads:

BY MS. BIZZARRO:

Q _ (Name omitted by this court), did Kenny tell you anything when he did this to you?
A (Nods head, indicating yes)
Q What did he tell you?
A Not to tell nobody.
Q Not to tell nobody? Were you afraid?
A Yeah. (Tr. p. 101)

Thus, it appears that the child had already answered the question of what the appellant told her, and the affirmative response she gave to the prosecutor was in answer to the question of whether she was afraid. It appears that all the elements of sexual battery were proven beyond a reasonable doubt. State v. Arnaud, supra. This assignment is without merit.

VII and VIII

By his seventh and eighth assignments of error, the appellant challenges the sentence he received. He alleges that the trial judge erred by not complying with the sentencing guidelines of C.Cr.P. art. 894.1 and by imposing an excessive sentence. The appellant was given the maximum sentence for sexual battery, ten years at hard labor.

Article I, Section 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be reviewed for excessiveness even though it is within statutory limits. State v. Soco, 441 So.2d 719 (La.1983); State v. Guajardo, 428 So.2d 468 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Bing, 410 So.2d 227 (La.1982); State v. Sepulvado, 367 So.2d 762 (La.1979). Once a sentence is found to be apparently severe, the reviewing court must then look to see if the sentence is excessive with respect to the case at hand. A sentence may be unconstitutionally excessive if it is “grossly out of proportion to the severity of the crime,” or “is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Telsee, supra, at 1253; State v. Prados, 404 So.2d 925, 926 (La.1981).

The factors used by the trial court in its determination of the sentence imposed must be made apparent to the reviewing court in order to ensure an adequate review of the sentence. C.Cr.P. Art. 894.1 sets forth eleven criteria to be used by the trial court in its sentence determination. Although a full recitation by the trial court of the factors listed in Art. 894.1 in its reasons for sentence is preferable, there is adequate compliance with Art. 894.1 if there is evidence elsewhere in the record that the factors have been considered and that the sentence was tailored to fit the particular defendant and his particular crime. State v. Socco, supra; State v. Telsee, supra; State v. Robinson, 423 So.2d 1053 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982); State v. Washington, 414 So.2d 313 (La.1982).

Here, the judge noted that the pre-sen-tence investigation report showed the appellant did not have “a bad history.” However, the judge noted that the appellant attacked a five-year-old child and could have been found guilty of a much more serious crime. He then sentenced the appellant to serve ten years at hard labor.

The appellant’s background was apparently made available to the judge via the pre-sentence investigation report. However, this report is not part of the record before this court because of its confidential nature. Unfortunately, it is extremely difficult for this court to review the trial judge’s compliance with Art. 894.1, especially in light of the lack of information contained in the record.

If compliance with Art. 894.1 is found, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant. A trial court has great discretion in its sentencing powers, and a sentence should not be set aside by a reviewing court absent a manifest abuse of this discretion. State v. Trahan, 425 So.2d 1222, 1227 (La.1983); State v. Washington, supra; State v. Bing, supra; State v. Bradley, supra. The reviewing court may look to similar cases in that court and other courts to determine a sentence’s excessiveness, especially to assure that

maximum sentences are reserved for the most egregious violations and that other offenders of similar conduct will not receive lighter sentences than this defendant. State v. Guajardo, supra at 473; State v. Telsee, supra at 1254.

In State v. Lanclos, 419 So.2d 475 (La. 1982), the defendant was originally charged with aggravated rape but pled guilty to sexual battery. He was twenty years old and had no prior convictions but did have a prior arrest for aggravated rape. He choked and struck the victim, dislocating her jaw. The Court held that his ten year sentence at hard labor was not excessive. Id. at 478.

In State v. Arnaud, supra, the defendant received six years at hard labor. However, his sentence was not considered on appeal.

Here, the appellant sexually attacked a five-year-old girl, but the record contains almost nothing about his background. Thus, it is impossible to tell whether his sentence was tailored to the offense and to his background. Accordingly, for the reasons expressed above we conclude that the appellant’s conviction be affirmed. However, the sentence is hereby vacated and this matter is remanded for resentencing in compliance with Art. 894.1.

CONVICTION AFFIRMED SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . R.S. 14:43.1 provides:
      Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender compels the other person to submit by placing the person in fear of bodily harm:
      (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
      (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
      Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, for not more than ten years.

      . The defense counsel attempted to address this issue at the competency hearing, but the state's objection to this question was essentially sustained.

      . See State v. Feeback, 414 So.2d 1229 (La.1982), where repetitive questioning was allowed by the trial court where the witness' initial answers were vague and required additional questioning for clarification. Id. at 1235.

      . See also State v. Carthan, 377 So.2d 308 (La.1979), where the posing of one leading question to ten-year-old victim by prosecutor was not error where such question was designed to overcome victim’s hesitancy in testifying about rape.

      . See also State v. Hatcher, supra, where the statement of the fourteen-year-old victim who rode the bus home, took a bath, and then told her sister about the attack was admissible; State v. Elzie, 351 So.2d 1174 (La.1977), where the victim’s statement was admissible where she dressed and walked to a friend's house to notify the police (she had no telephone) and where she appeared frightened and hysterical; and State v. Pace, 301 So.2d 323 (La.1974), where the five-year-old victim’s statement to her parents made later in the day of the attack when the victim arrived home was admissible.

      . Art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or a probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


author: YELVERTON, Judge.

text:
    William Braxton HARBOUR, Jr., et al., Plaintiffs-Respondents, v. NORMAL LIFE OF LOUISIANA, Defendant-Relator.
    No. 84-298.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1984.

      Jefferson, Bryan & Gary, New Orleans, and Christian M. Goudeau, Opelousas, for defendant-relator.
    G. Steven Duplechin, Baton Rouge, for plaintiffs-respondents.
    Before FORET, CUTRER, DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The defendant-relator, Normal Life of Louisiana, Inc. (Normal), sought supervisory writs from a judgment granting a preliminary injunction. We granted the writ in order that the positions of the parties could be more closely considered, and we ordered up the transcript of the proceedings. We ordered a stay of all proceedings pending further action by this court.

In addition to their argument on the merits of the writ application, wherein they contend that the preliminary injunction was proper, Respondents (plaintiffs below) assert that we prematurely exercised our supervisory jurisdiction. We adhere to our decision to entertain the application for writs. On the merits, we shall reverse and set aside the preliminary injunction. Both these matters will be discussed after a brief recitation of the facts.

FACTS

Normal is a corporation for profit licensed by the State to provide community homes for mentally retarded individuals pursuant to LSA-R.S. 28:475-478. Normal presently has lease agreements for eight residences. The residence which is the subject of this suit is located in Royal Gardens Subdivision in St. Landry Parish at 410 Avenue of the Acadians. Normal has contracted to purchase this home.

Thirteen residents of Royal Gardens Subdivision petitioned the district court seeking a preliminary injunction to stop Normal from operating the community home alleging that the activity was in violation of the building restrictions affecting the property within the subdivision. The building restriction relied on by the residents reads as follows:

“1. Property set forth on said plat shall be used exclusively for residential purposes ...”

Defendant answered the suit and also reconvened against the plaintiffs for damages and attorney fees.

A hearing was held on March 28 and April 2, 1984. On April 2, the trial court orally rendered judgment granting the preliminary injunction upon the posting of a $3,500 bond. The trial court found that Normal’s activities would be a violation of the building restriction. On April 4, 1984, Normal applied to this Court for writs of certiorari and a stay order which were granted. The judgment of the trial court was signed on April 17, 1984.

MOTION TO DISMISS WRIT APPLICATION

Respondents have filed .a motion to dismiss the application for writs and stay order alleging that this court lacked or should not have exercised supervisory jurisdiction in the case. It is argued that the application was premature because as of the date of filing the application for writs no security had been furnished and no judgment had been signed. We disagree.

Article 5, Section 10, of the Constitution of 1974 provides that a court of appeal “has supervisory jurisdiction over cases which arise within its circuit.” Courts of appeal have supervisory jurisdiction over cases involving injunction proceedings within their geographical jurisdictions. Fabacher v. Hammond Dairy Co., Inc., 389 So.2d 87 (La.App. 4th Cir.1980).

In the present case the judgment was orally rendered on April 2, 1984, and signed on April 17, 1984. The bond was executed on April 3 and filed in the record on April 17, 1984. Normal applied for writs of certiorari on April 4, 1984.

It is clear this court has supervisory jurisdiction over the present matter since it was tried within our geographical jurisdiction. We also find that although the relator’s application for writs of certiorari may have been technically premature in that the writs sought review of a judgment which had not yet become final, we may nevertheless entertain the application. The judgment was' signed in close proximity of time to the premature application. The judgment is not substantially different from that previously announced. The respondents will in no way be prejudiced. See the analogous cases of Jeanmard v. Sears, Roebuck and Co., 436 So.2d 575 (La.App. 3rd Cir.1983) and Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2nd Cir.1976). We deny the motion to dismiss.

ON THE MERITS

On the merits we hold the trial court committed error by ordering the issuance of the preliminary injunction for the following reasons.

The trial court found that Normal planned “to operate a type of business, since it would be not only furnishing a residence but simultaneously performing commercial services in the home, for which it is paid a fee.” The trial court then concluded that the operation of this business would violate the building restriction which provided that the property “shall be used exclusively for residential purposes.”

When the trial court reached this decision the case of Tucker v. Special Children’s Foundation, Inc., 449 So.2d 45 (La.App. 1st Cir.1984), writ denied 450 So.2d 959 (La.1984), had not yet been published. That case presented a similar question. In that case the defendant was a non-profit corporation established to provide community homes for the mentally handicapped. The plaintiffs sought injunctive relief alleging the use of the residence as a community home was a business operation and therefore in violation of the building restrictions placed upon the property.

The First Circuit reasoned:

“The fact that the residence is a part of non-profit corporation’s business does not violate the building restrictions affecting the property. The fact remains that the residence is being used as a residence as contrasted from a situation where a business was actually being run from the structure. We find nothing in the restrictions which would preclude any one of the other owners in the subdivision from leasing their residences to single family units.”

In the present case the house in Royal Gardens Subdivision is to be used strictly as a residence for six or fewer mentally handicapped. Two (sometimes one) staff members will work in the house on a rotating shift basis. Normal’s activities within the home is to provide services for the residents of their home in teaching them daily living skills such as cooking, cleaning, washing clothes, transportation, shopping and personal skills such as bathing, clothing maintenance, and appearance. Normal’s financial operations are conducted from its business offices in Lafayette and Kenner.

We agree with the reasoning of the First Circuit’s Tucker case. The fact that the residence is part of the business of a corporation for profit does not violate the building restrictions. The fact remains that the house is being used strictly as a residence and not as a place from which a business is being run. Its license does not permit Normal to use the house for any other purpose than to provide a residence in the form of a community home for six or fewer mentally handicapped persons. For these same reasons we attach no importance to the fact that the relator in the present case is a corporation for profit as distinguished from a non-profit corporation, as in Tucker.

Accordingly, the judgment of the trial court enjoining Normal Life of Louisiana, Inc. from operating a community home for the mentally retarded as defined in LSA-R.S. 28:381(8) is hereby reversed and set aside. The case is remanded for further proceedings consistent with this opinion. Respondents are to bear the costs of this writ application.

WRIT GRANTED AND MADE PEREMPTORY; INJUNCTION REVERSED AND SET ASIDE; CASE REMANDED.

FORET, J., dissents.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Phillip WILLIAMS, Sr., Appellant.
    No. 16179-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.

      Donald R. Minor, Asst. Indigent Defender, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Sonia D. Peters and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Defendant appeals his conviction by a unanimous jury verdict of manslaughter of his son and his sentence to 18 years at hard labor. LRS 14:31, LSA-Const. Art. 1, § 20, CCrP Art. 894.1.

Two of defendant’s six assignments of error are not briefed or argued and are deemed abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). Three of the remaining assignments raise issues regarding the admissibility of evidence of the choking of his wife and about defendant’s arguments with his wife and his 18-year-old son, which culminated in the manslaughter. Defendant’s final assignment concerns his sentence. We review the four assignments and affirm the conviction and the sentence.

FACTS

Defendant Williams lived with his wife and son, Phillip, Jr., in a rural settlement on the Wallace Lake Road near Shreveport. The family existed on monthly disability income received-by Mr. Williams in two checks totaling about $300 from federal agencies and on weekly earnings of Ms. Williams and Phillip from seasonal work on a truck farm in the area. Each contributed to the routine monthly expenses for the house payment, utilities, and telephone.

The homicide occurred about 8:00 p.m. on Saturday, April 30, 1983. On Friday, April 29, Phillip gave defendant $40 of the $50 he had been paid on that day. An argument followed when defendant demanded the remaining $10 that Phillip had. Defendant was drinking at the time. Phillip left home, not to return until Saturday afternoon. Ms. Williams worked on the farm on Saturday. When she returned home defendant demanded money from her. Defendant was also drinking on that day and argued with his wife over money when she would not give him but $20. Defendant and his wife left in their automobile and later drove to the home of neighbors, Mr. and Mrs. Duncan. There Mr. Williams' resumed the argument and physically attempted to take money away from Ms. Williams by choking her in the presence of the neighbors. The Duncans intervened and prevailed upon Ms. Williams to stay at their home and upon defendant to return to his home. Defendant came back to the Duncan home about 15 minutes after he left, attempting again to get his wife to accompany him. Ms. Duncan said she heard of the shooting about an hour after defendant last left her home.

In the meantime, Phillip, with three friends, returned to the Williams home but could not gain entry. Mr. Williams had padlocked the front door and had failed to place the key in its usual hiding place. Phillip, too, had been drinking on this day. He obtained a hammer and forced the padlocked hasp from the door and door frame. He entered the house and changed his shirt.

After leaving the Duncan house for the second time, defendant arrived home to find Phillip and his friends and saw that the hasp had been removed from the door facing. Defendant learned that Phillip had removed the hasp. He and Phillip argued outside and then inside the home. Phillip’s friends testified about the length (15 minutes) but not the content or substance of the argument. When Phillip came out of the house, one or more of his friends persuaded Phillip to leave with them. Phillip agreed, but said he was going back to his bedroom to get cigarettes he had left there. Phillip’s friends testified that the front door was shut and apparently unlocked. They said that Phillip was shot by defendant, who was sitting on the couch with a shotgun, just as soon as Phillip entered the room through the front door. The couch was within 12 feet of the doorway. Phillip was unarmed and, according to his friends, did not, by words or actions, threaten the defendant. The record also reveals that defendant appeared “drunk,” and that he refused to allow Phillip’s friends the use of his telephone to call an ambulance after the shooting. Phillip died from his wounds about the time that he reached a hospital in an ambulance which his friends called from another telephone.

Defendant testified. He admitted that he was drinking. He said that he and Phillip argued about money inside the home and that Phillip demanded that defendant drive him to the Duncan home to get money from his mother when defendant refused to give him any money. Defendant said that he reattached the padlocked hasp to the door after Phillip went out of the house and that he shot Phillip only when Phillip “kicked in” the door because he was afraid that Phillip was going to attack him and hurt him.

Before the trial, which occurred on September 26 and 27, the State gave notice on September 22 to defendant of its intent to introduce the “res gestae” evidence about the arguments over money and defendant’s trying to take money from his wife by “choking” her in the presence of Ms. Duncan. Defendant then moved on the first day of trial to have this evidence ruled inadmissible. The trial court deferred ruling until the evidence was offered during trial. See CCrP Arts. 521, 703.

On the second day of trial Ms. Duncan testified about the argument that occurred between defendant and his wife in the Williams’ automobile when they first parked in the front of the Duncan home:

“They [Mr. and Ms. Williams] were arguing, and I went there to the car and asked what was going on.
“What did you see?
“And Phillip was choking her.”

Defendant’s motion for a mistrial was denied after argument outside the presence of the jury. Defendant declined the court’s offer to admonish the jury (CCrP Art. 771). Defendant asked instead that his “objection” be noted and agreed with the court’s statement that “we’re ... going to have the jury come back in and we’re going to continue without going any further into [the choking] ... is that correct?” The only later reference to the choking was an unsolicited response by Ms. Duncan to the state’s question, “What did you tell Ms. Williams to do?”. Mrs. Duncan answered:

“I told Ms. Williams to get out of the car and come on in — first, [Mr. Williams] started to choking her.”

ASSIGNMENTS 2 and 3

Res gestae is defined as those necessary incidents of the proscribed criminal conduct and whatever may form one continuous transaction with, whether occurring before or after, the particular criminal conduct. LRS 15:447, 448. See State v. Johnson, 440 So.2d 838 (La.App. 2d Cir. 1983). A concise summary and analysis of the res gestae circumstances is presented in State v. Haarala, 398 So.2d 1093, 1097 (La.1981):

“The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wigmore, Evidence § 218 (3d ed. 1940).. In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48. A very close connexity between the charged offense and the other crimes evidence sought to be introduced under the res gestae exception is required.... This close connexity in time and location is essential to the exception because no notice of the state’s intention to introduce evidence of offenses which are part of the res gestae is required ...
“This Court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it .... In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place .... The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised .... ”

Resolution of whether the reference to the choking is admissible under the circumstances of this case will determine whether the trial court erred in denying a mistrial (defendant’s error no. three) or in deferring a ruling on defendant’s motion to exclude the evidence about the reference (defendant’s error no. two).

The state’s theory of its case was that defendant was provoked to extreme anger when his son, on the evening before, his wife, about an hour before, and his son again, only a few minutes before the homicide, argued with defendant over money. The choking incident occurred within 1½ hours of the homicide during defendant’s argument with his wife over money.

The elements, or necessary incidents, of the manslaughter, in this case are defined as a homicide which would be murder, but which was committed in sudden passion or heat of blood caused by provocation sufficient to deprive an average person of his self control and cool reflection. LRS 14:31. If the defendant was provoked by the refusal of his wife and his son to meet defendant’s demands for money, this provocation, if of reasonably close connexity in time and in distance to the homicide, may be admissible as circumstances that form one' continuous transaction with the homicide. LRS 15:447, 448.

The place of the choking (estimated by witnesses as a few blocks or a mile or so from the place of the homicide) and time (estimated by Ms. Duncan as about one to IV2 hours) are closely related to the homicide under the circumstances shown.

The jury was not told that defendant committed a crime (such as a battery) when he was physically attempting to take money from his wife. The state’s emphasis was more on the argument and the attempt to take money than it was on the choking. Defendant admitted that his wife “gave” him $20. He admitted that he argued with his son over money just before the homicide (even though in his version it was the son’s demand to him and not vice versa).

Under these circumstances, we hold that the requisite close connexity was present. The evidence was relevant to show the context in which the homicide occurred. Homicides do not occur in a vacuum. In some circumstances where, as here, the sequence of events forms one continuous transaction, the res gestae exception to the prohibition against other crimes evidence is recognized to allow the complete story of the crime to be told. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982); State v. Curry, 325 So.2d 598 (La.1976).

Additionally, the defendant cannot contend that he was surprised by the evidence because the state gave him notice four days before the trial of its intent to introduce the evidence, even though such notice was not required. The state is not required to give defendant notice of other crimes evidence which were part of the res gestae. State v. Haarala, supra, State v. Prieur, 277 So.2d 126 (La.1973). The evidence was not offered to show intent or system under LRS 15:445, 446, and it was not necessary that the trial court rule on the admissibility of the evidence before trial. See State v. Naas, 409 So.2d 535 (La.1981), cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982). Compare State v. Prieur, supra. We find no error in the trial court deferring its ruling until the res gestae evidence was offered.

For essentially the same reasons, we find that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial. The evidence was admissible, defendant was not surprised, and defendant declined the court’s offer to give an admonishing instruction to the jury. We also do not find that any substantial prejudice occurred to the defendant by the admission of testimony about the incident between defendant and his wife within one and one-half hours of the homicide. See CCrP Arts. 771, 775; State v. Smith, 418 So.2d 515 (La.1982).

ASSIGNMENT 4

One of the friends of the victim ' testified that the victim was “agitated” before he entered the doorway of the home just before he was shot by defendant. Defense counsel complains in this assignment that the trial court then erroneously sustained a hearsay objection to his question to this witness about what the victim said that caused him to believe the victim was agitated.

Defendant had established that the victim had been “drinking” and was drunk or intoxicated. The witness was not asked to state what he meant by “agitated,” and was not asked whether the victim used threatening words or gestures towards the defendant or towards anyone. Moreover, the defendant was allowed to recall this witness after the alleged error occurred and did not attempt to ask about res gestae words or actions on the part of the victim. Even should we find that evidence of the victim’s state of mind, under the circumstances, was admissible as an exception to the hearsay rule, we find no reversible error. CCrP Art. 921. Defendant has not shown specific prejudice to his ease and did not proffer the testimony to enable us to determine whether he was prejudiced by the trial court’s ruling. State v. Edwards, 420 So.2d 663 (La.1982), is inapposite because defendant did not attempt to show an overt act or hostile demonstration on the part of the victim toward defendant or attempt to introduce evidence of the victim’s character. LRS 15:482.

ASSIGNMENT 6

At sentencing, the trial court noted that the defendant had a history of alcohol problems and criminal activity, which included three or four DWI convictions and a 1954 conviction of aggravated rape of his then young daughter. With a prior felony conviction, defendant was not eligible for probation. The court also observed that defendant’s alcohol problem created an undue risk that defendant would commit further crimes. Among other things, the court found that the defendant did not act under “strong” provocation, that the victim did not induce or facilitate the commission of the crime, and that while there might be slight grounds tending to excuse the. defendant because of his alcohol problem, these grounds were not very substantial. The court concluded that the defendant’s attitude and his history of alcohol abuse indicated that he was likely to commit further crimes.

The record shows that the trial court adequately considered the CCrP Art. 894.1 guidelines. While the trial court’s statement about the defendant’s inability to control himself at the time of the offense is ambiguous, we read this statement as an observation by the trial court of the extent and nature of the defendant’s alcohol problem, a problem of abuse so severe that it led to the death of his own son. Apparently the trial court reasoned that similar results would be likely to recur as long as the defendant continued to abuse alcohol. In any case, the trial judge considered the defendant’s intoxication as a mitigating factor even though the defendant did not contend lack of mens rea due to severe intoxication. See LRS 14:15(2).

The trial court’s determination that the defendant lacked remorse because of his refusal to accept plea negotiations prior to trial was improper. The fact that the defendant declined a plea bargain is not a proper sentencing factor. See CCrP Art. 894.1; State v. Smith, 407 So.2d 652 (La.1981). The supreme court has expressed its concern that statistics allegedly show a substantial disparity in the severity of sentences received by defendants who went to trial when compared to sentences of defendants who pleaded guilty. See State v. Oubichon, 422 So.2d 1140 (La.1982). The court found that such a disparity would raise a serious question of the chilling of Sixth Amendment rights and deprivation of due process by “vindictive” sentencing.

Notwithstanding the trial court’s improper reference to plea negotiations, the sentencing record supports a determination that the trial court properly considered all the sentencing guidelines listed in CCrP Art. 894.1. It is not apparent that the 18 year sentence imposed is an unconstitutionally severe sentence in this case. In State v. Boatright, 406 So.2d 163 (La.1981), a second felony offender was sentenced to 15 years on a plea of guilty to manslaughter. See also State v. Tompkins, 429 So.2d 1385 (La.1983), 15 years; State v. Terriault, 369 So.2d 125 (La.1979), 21 years, remanded; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983), 15 years; State v. Mathews, 428 So.2d 988 (La.App. 1st Cir.1983), 21 years.

CONCLUSION

Defendant’s conviction and sentence are AFFIRMED.

      . "THE COURT: Okay. The Court had had a chance prior to trial to be involved in some plea negotiations. A sentence limitation was offered to Mr. Williams and he did not take it. That is an indication to the Court that he did not have a feeling of guilt about what took place. The Court noted during the trial that Mr. Williams displayed no real signs of remorse. There were one or two times I think he may have displayed some emotion, but there were no signs of remorse. I don't even think he was sorry of what was taking place.”


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Tammy Lynn TAYLOR, Appellant.
    No. 16193-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Lee E. Ineichen, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty. by Joseph T. Mickel, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

After a bench trial the defendant, Tammy Lynn Taylor, was found guilty of possession of a controlled dangerous substance (R.S. 40:967) and sentenced to imprisonment at hard labor for five years. The defendant appealed, relying upon four assignments of error.

Factual Context

At about 10:00 o’clock P.M. on March 21, 1983, Deputy Benton of the Ouachita Parish Sheriffs office was driving in a rural area of Ouachita Parish when he noticed an oncoming vehicle being operated in an erratic manner. Benton turned his car around, pursued and stopped the other vehicle. After observing the driver, Tammy Lynn Taylor, and giving her a field sobriety test, Deputy Benton arrested Mrs. Taylor for driving under the influence of an intoxicating liquor.

Mrs. Taylor did not possess a valid driver’s license. When Deputy Benton attempted to ascertain whether she had someone who could come for her vehicle, Mrs. Taylor identified herself by seven or eight different names and gave several different false addresses and telephone numbers. Deputy Benton then decided to call for a tow truck to remove the Taylor vehicle from the scene. He proceeded to place Mrs. Taylor, along with her purse, in his patrol car and took the defendant to the parish jail. While seated on the rear seat of the patrol car, Mrs. Taylor mentioned to Benton that her purse, which he had placed on the front seat, contained valuables.

Upon arrival at the parish jail, Deputy Benton contacted Sgt. Worley and advised him of the situation. In the meantime, an inventory search of the vehicle driven by Mrs. Taylor revealed that it was stolen.

In connection with the booking of the defendant, Sgt. Worley searched her purse and found therein several Phentermine capsules. This prosecution followed.

Assignments of Error Numbers 1 and 2

Defendant contends in these two assignments that the trial court erred in failing to sustain her motion to suppress since the warrantless search of her purse was unconstitutional.

In State v. Duplantis, 388 So.2d 751 (La.1980), the defendant, during the course of his booking, was required to surrender his wallet and other personal belongings. In searching the wallet the booking officer found a controlled dangerous substance. Defendant’s motion to suppress was overruled by the trial court. On appeal, our Supreme Court commented:

“The confiscation of an arrestee’s property at the time he is booked on a charge is authorized under Louisiana law. In State v. Taylor, 347 So.2d 172, 179 (1977), this Court rejected the argument that a search of a notebook surrendered at the time of the booking was unlawful because done without a warrant. There the Court noted that the surrender of personal effects and inventory search at the time of booking are designed to protect the arrestee’s property, the security of his incarceration, and the personal safety of those who come in contact with him. Furthermore, Article 228 of the Code of Criminal Procedure requires that such surrender be made. That article provides that as part of the routine booking procedure a list of any property taken from the defendant shall be entered in a book together with his name, address, the offense charged against him, by whom he was arrested and the date and the time of the booking.”

Also see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In this case the search of defendant’s purse was conducted in connection with her booking and was clearly authorized to be done pursuant to Article 228 without a search warrant. She had insisted that the purse contained valuables. It was essential that they be inventoried, both for the defendant’s protection and for that of the officers.

For the stated reasons these assignments are without merit.

Assignment of Error No. 3

Defendant asserts that, at a pre-sentence hearing to determine if she had been convicted in Texas under another name, the trial judge erroneously admitted into evidence certain documents which constituted hearsay evidence.

The pre-sentence report filed in this case indicated that the defendant had a prior conviction in Texas, under the name of Theresa Joyce Pendergrass, for delivery of a controlled dangerous substance and was currently on probation for that conviction. She denied this before the trial court. Therefore, the trial judge ordered a hearing to resolve this issue.

At the hearing a number of certified documents from the Texas court, along with related correspondence from Texas authorities, were received in evidence. Many of those documents contained the fingerprints of Theresa Joyce Pendergrass. Expert testimony adduced at the hearing established that the fingerprints of defendant were the same as those of Pender-grass.

In complying with La.C.Cr.P. Article 894.1, it was essential that the trial court have accurate information concerning the defendant’s prior criminal record. The hearing in question was held to afford defendant an opportunity to refute alleged incorrect assertions. It is axiomatic that the sources of information from which a sentencing court may draw are extensive and that traditional rules of evidence are not bars to the consideration of otherwise relevant information. State v. Washington, 414 So.2d 313 (La.1982); State v. Douglas, 389 So.2d 1263 (La.1980).

For these reasons the trial judge did not err in admitting into evidence the documents in question at the pre-sentence hearing.

This assignment lacks merit.

Assignment of Error No. 4

Defendant complains that the imposition of the maximum imposable sentence is excessive.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits. Such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

In this case the record shows that the trial judge adequately complied with Article 894.1. Among other things he noted that the defendant had gone to extremes to conceal her true identity; was in possession of a stolen vehicle; had a prior felony drug conviction and was on probation when arrested; and was obviously in need of protracted correctional treatment.

Under the circumstances we do not consider that the sentence imposed, though the maximum, was out of proportion to the seriousness of the offense or constituted a needless and purposeless imposition of pain and suffering.

This assignment is without merit.

Decree

Defendant’s conviction and sentence are affirmed.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Harold James JACKSON, Appellant.
    No. 16206-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., John A. Broadwell, Asst. Dist. Atty., Shreveport, for appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   PRICE, Judge.

Harold James Jackson has appealed his conviction after trial by jury of simple robbery. He was sentenced as a multiple offender to twenty years at hard labor.

Only one of the assignments of error was briefed to this court; therefore, the remaining assignments are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). The viable assignment before us on this appeal is defendant’s contention that the evidence was insufficient to support his conviction.

FACTS:

Don Butts, the victim, testified to the following account of how he was allegedly robbed of approximately $165 by defendant on January 9,1983. Butts was shopping at a Bestyet store on the Greenwood Road on this Sunday morning about 8:00 a.m. Defendant approached him once while he was shopping and asked if he didn’t know him. Later, at the check out counter, defendant was in line behind Butts and he initiated a similar conversation. At the time Butts paid for his purchases he exhibited a roll of money totaling about $165. As Butts was placing his grocery purchases in his truck in the parking lot, defendant again approached him and asked for assistance. He represented that the car he was driving, a white four-door Fiat, was having transmission trouble and he needed a ride to obtain fluid and tools to repair the car.

After taking his purchases home, Butts returned to the parking lot to assist defendant. He was requested to carry defendant to the nearby Ramada Inn where defendant represented his cousin was staying who would loan him the tools necessary for the repairs. At some point during this time defendant suggested he could sell Butts a T.V. and a shotgun for a bargain price of $75 each. After some discussion of this proposition defendant turned down the proposal.

Defendant requested Butts to drive to the rear of the motel to a certain area so that he could load the tools he proposed to borrow. Defendant went into the motel and shortly returned and stood at the driver’s side of the truck and asked Butts, who was seated in the truck, for a dollar which he claimed to need in connection with the borrowing of the tools. Butts took the folded wad of bills from his pocket in preparation to giving defendant the dollar. Defendant leaned in and placed his arm on Butts shoulder and stated “give it up” or “give it all.” Butts started to reply “no, you don’t want to do that,” and defendant wrested the wad of money from Butts hand and ran.

Butts gave chase but was unable to catch sight of defendant. He then returned home and changed vehicles and drove around the area looking for defendant’s vehicle. About an hour after the incident he sighted a police car and reported the matter to the police.

A description of the defendant and the car he was driving was broadcast over the police radio and the next morning another officer who had stopped defendant for running a stop sign, recognized that defendant fit the description. The officer accompanied defendant to his sister’s home to allow him to procure his driver’s license. While the officer waited in the front of the residence defendant absconded through the rear of the house and eluded the officer.

A week later a photographic lineup was shown to the victim, Butts, who identified defendant. A warrant was issued on the complaint of Butts charging defendant with armed robbery and he was arrested on February 8, 1983. The charge was later amended to simple robbery as the victim was not certain defendant had a weapon.

ASSIGNMENT OF ERROR NO. 2:

In his only assignment of error briefed to this court, defendant contends the evidence was insufficient to prove beyond a reasonable doubt that he committed the crime charged on the date in question. Alternatively, he contends that in any event the state failed to prove beyond a reasonable doubt an essential element of the crime of simple robbery and at most only proved a theft occurred which is not responsive to the simple robbery charge. Defendant contends that the evidence showing the money was grabbed from the victims hand does not satisfy an essential element of the crime of simple robbery, that is, “use of force or intimidation.” In support of this position, defendant points to the victim’s responses on cross-examination which he contends indicate the victim was not intimidated and no force was used in the incident. While the victim did testify under cross-examination that he had not been afraid of defendant or intimidated by him, his testimony on direct examination indicates that the money was taken by some degree of force. Butts described the defendant’s actions in taking the money as follows:

Q. Was — what did Mr. Jackson do when you pulled your money out of your pocket?
A. That’s when he hit my shoulder like that. Said give it up or give it all or something and I was in the process of doing this and I said, no, you don’t want to do this. And about that time he grabbed the money and was gone. You know, I was at the stage where I was just more or less kidding him because I never took him serious. You know what I mean.
Q. When he took the money, what did he take the money with?
A. He just grabbed the money with his hand.
Q. And what did he do when he grabbed the money?
A. When he done that—when he grabbed the money like this, I was fighting with his hand and he took off running and that’s when I tried to get out and chase him. He got away.

The state contends that the victim’s testimony that he did not hand the money over to defendant, that he did not give it up voluntarily, and that defendant snatched it from his hands establishes the force or intimidation element of the offense. Furthermore, the state contends that the instant offense was accomplished upon the person of a victim who was fully cognizant of the events taking place and therefore the situation involved an increased danger to human life such that lesser degrees of theft would not be comparable.

At the time of this offense, the simple robbery statute, La.R.S. Art. 14:65, provided as follows:

Simple 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, but not armed with a dangerous weapon.
Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.

The use of force or intimidation is an element of the offense of simple robbery as defined in this statute. Louisiana Courts have determined that the legislative purpose in prohibiting this offense was to recognize the increased risk of danger to human life posed when a theft was carried out in the face of the victim’s opposition and to provide a penalty which would reflect the severity of this grade of theft. See State v. Mason, 403 So.2d 701 (La.1981) and State v. Johnson, 411 So.2d 439 (La.1982). Based on this finding of legislative purpose, the Louisiana Supreme Court held that the taking of a purse dropped by a woman fighting the perpetrator who was attempting to rob another woman was “theft ... by use of force or intimidation” such as to constitute a simple robbery as defined in La.R.S. Art. 14:65. State v. Johnson, supra.

Neither the crimes of theft nor purse snatching are responsive verdicts as listed in C.Cr.P. Art. 814 to a charged offense of simple robbery. The crime of purse snatching is defined in La.R.S. Art. 14:65.1 as “the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.” Cases involving the crime of purse snatching have distinguished the term “snatching” from the legal definition of “the use of force or intimidation”. These cases hold “ ‘snatching’ does not require a face-to-face confrontation and is distinguished from use of force and intimidation by the statute’s very wording.” State v. Anderson, 418 So.2d 551 (La.1982); State v. Jackson, 439 So.2d 616 (La.App. 1st Cir.1983).

Because the instant case did involve a face-to-face confrontation where the defendant grabbed the victim’s money from his hand after the vietim refused to give up the money, the circumstances establish that the taking was by force rather than a mere snatching as defined in State v. Anderson, supra. Therefore we find the evidence to satisfy the element of force or intimidation essential to the crime of simple robbery.

Next we will address the defendant’s claim that the evidence failed to establish that he committed any crime on the date in question. The defendant testified that he was framed by the victim because of an incident which occurred on January 8, 1983. According to his testimony, the following events took place on the Saturday before the alleged robbery. Don Butts approached defendant and another man named Peter who were sitting in the defendant’s sister’s car. Butts appeared to know Peter whom he questioned about some pills. Peter left with Butts after declaring that he knew where he could obtain TVs and shotguns. A short time later, Butts returned to the defendant who was still sitting in the white Fiat. Butts demanded to know where Peter was, and when the defendant refused to give any information, Butts threatened to make a complaint to the police that the defendant had committed an armed robbery against him.

The defendant further testified that on Sunday, January 9, 1983, he could not have committed the alleged robbery because he was en route to Monroe, Louisiana with his sister and niece to visit his nephew who was incarcerated at LTI. The defense presented eight witnesses to corroborate this alibi. The testimony establishing the defendant’s presence at LTI on the date of the robbery includes various estimates by the defense witnesses of the time of the defendant’s arrival in Monroe and specifically at the institute. These various estimated times do not all coincide, ranging from 9:30 a.m. to 11:45 a.m.

The state offered rebuttal testimony from the assistant principal at the training institute who testified that the defendant’s sister signed her son out for visitation after 12:00 on January 9, 1983. Because of this evidence, the fact of the defendant’s presence at LTI after noon on January 9th, would not preclude the possibility that the defendant committed the instant offense at approximately 9:00 a.m. on the same day. The jury obviously found the assistant principal’s testimony more credible than that of the defense witnesses and did not find the defendant’s testimony that the victim had attempted to frame him as credible as the victim’s testimony depicting the incident. Such a credibility call by the factfinder should not be disturbed on appeal. See State v. Husband, 437 So.2d 269 (La.1983); State v. Tompkins, 403 So.2d 644 (La.1981); State v. Alford, 384 So.2d 761 (La.1980).

The sufficiency of the evidence in this case satisfies due process standards since the record evidence, viewed in the light most favorable to the prosecution, is sufficient for a rational juror (factfinder) to conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Peter K. HARRIS, Jr., Appellant.
    Nos. 16,231-KA, 16,228-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Don H. Johnson, Monroe, for appellant.
    William J. Guste, Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Robert Johnson, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   MARVIN, Judge.

Defendant pleaded guilty to possession of marijuana (a misdemeanor, LRS 40:966) and to possession of diazepam (a felony, LRS 40:969), after the trial court denied his motion to suppress and reserved to defendant his right to appeal that ruling. State v. Crosby, 338 So.2d 584 (La.1976).

We granted a writ of review in the misdemeanor conviction and consolidated that review with the appeal taken in the felony conviction.

Defendant was seen at a rock concert in the Monroe Civic Center holding and smoking a hand-rolled “suspected marijuana” cigarette by two undercover narcotics policemen who were assigned to the rock concert to detect narcotics traffic and use. The diazepam and another marijuana cigarette were found when defendant was searched after he was arrested for possession of the marijuana cigarette.

The issue is whether the officers had a reasonable suspicion to detain defendant under CCrP Art. 215.1 and reasonable/probable cause to arrest him under CCrP Art. 213 under the circumstances.

FACTS

Officers Kukal and Walker observed defendant for several minutes from four or five feet away. They were behind defendant who was facing the stage. The stage lights illuminated the several rows of seats immediately in front of the stage. Defendant was standing, with the burning cigarette in his hand behind his back. Walker saw the defendant smoking the cigarette. He conferred with his fellow officer, both of whom were experienced narcotics policemen. Officer Walker testified “we approached [defendant]. I came up on the back side of him and ... grabbed his ... right hand by the wrist. He dropped the cigarette, I reached down ... and picked it up, at which time I believe Officer Kukal ... advised him of his rights ... who we were, why he was being placed under arrest, escorted him ... to ... where a command post had been set up. He was advised of his Miranda rights, we searched him and found another suspected marijuana cigarette and suspected [diazepam] ...”

REASONABLE SUSPICION FOR THE INITIAL DETENTION

Citing State v. Davis, 359 So.2d 986 (La.1978), as controlling, defendant argues that police should not be able to search a citizen on “a mere whim and ... mere chance of obtaining evidence upon which to base an arrest.” Other cases factually similar are State v. Spears, 395 So.2d 762 (La.1981), and State v. Varnell, 410 So.2d 1108 (La.1982).

Davis was observed by police who were in a patrol car 12-15 feet away at 10:00 a.m. when he rode by them on a bicycle on a New Orleans street with a hand-rolled cigarette in his hand. When the police drove around the block and intercepted Davis he no longer had the hand-rolled cigarette. Davis became “irate” when the officers stopped and questioned him. He was arrested for assault when he threatened the officers. The motion to suppress there was directed to heroin that was found in his pocket when Davis was searched after his arrest. The critical issue was whether the police “had reasonable cause to suspect Davis of unlawful activity” to justify their stopping him. The court emphasized that Davis was on a bicycle, the officers were 12-15 feet away in the patrol car, and that it was demonstrated that the officers could not, at that distance, distinguish between tobacco and marijuana in a hand-rolled cigarette. The court said that Davis “could have cupped his hand to shield his cigarette from the wind.”

Varnell, driving his pickup on a Shreveport street, was observed by officers in a patrol car proceeding in the same direction. He was smoking a cigar-sized hand-rolled cigarette. The police stopped him and seized the burning cigarette on the floorboard of his truck, along with two baggies of marijuana they found there.

In Davis and in Varnell, the focus of the court’s inquiry was on the legality of the initial stop or detention. In each case the supreme court held the stop and detention “unlawful” and suppressed the evidence that was seized as a result of that detention.

Spears and his friend were sitting on the hood of an automobile parked on a New Orleans street during the nighttime and were sharing and smoking a hand-rolled cigarette. Two undercover policemen slowly drove by in an unmarked car with the car windows down. From four or five feet away, the officers observed Spears and his friend smoking the cigarette and smelled the aroma of marijuana. The officers stopped and approached the parked car. Spears and his friend saw them and “apparently recognized” them as policemen. Defendants then threw down the butt they were smoking, along with two unburned cigarettes and a coin envelope. Retrieval of the burning cigarette confirmed the officers’ suspicion that it was marijuana. The supreme court overruled the trial court’s sustaining of the motion to suppress directed at the marijuana, holding that it was “abandoned” property and was admissible. Davis was distinguished in a footnote.

These cases illustrate why no hard and fast rule can be stated. The reasonable belief necessary to detain and the reasonable/probable cause necessary to arrest without a warrant must be determined, by hindsight, on the totality of the circumstances in the individual case. State v. Flowers, 441 So.2d 1288 (La.App. 1st Cir. 1983); State v. Goodson, 444 So.2d 1337 (La.App. 2d Cir.1984). The issue is whether a reasonable narcotics officer under the same circumstances, possessed with the articulated knowledge and reasonable inferences that were available to Officer Walker, would have had reasonable grounds to believe that the defendant in this case was involved in criminal activity.

We believe the requisite belief can be found reasonable. These officers were experienced narcotics officers, they observed defendant from four to five feet away for several minutes, they conferred about the suspected marijuana cigarette, and when Officer Walker grabbed defendant’s wrist, defendant dropped the cigarette. Moreover, the officers had every right to work undercover at a rock concert. It is not uncommon for marijuana to be smoked at a rock concert. An experienced undercover narcotics officer, observing for several minutes at close distance what appears to him to be a marijuana cigarette in the hands and mouth of a patron at a rock concert should make a further investigation by detaining the patron and by examining the cigarette. In any event, however, this defendant dropped the cigarette, when Officer Walker, making the “stop,” grabbed his hand, and effectively abandoned that cigarette to the police. The initial stop or detention in these circumstances, we hold, was lawful. The arrest and search incident to the arrest were also lawful.

At appellant’s cost, the conviction in each instance is AFFIRMED.

      . In Goodson, supra, we noted that one or more factors are often emphasized in answering the inquiry. These factors include location, time of day, high crime area, and flight.

      . Defendant’s arrest occurred almost simultaneously with the retrieval of the cigarette by Officer Walker. Defendant does not question the degree of force used in effecting the stop or the arrest.