text:
    STATE of Louisiana v. Jacqueline Polk NETTLES.
    Nos. 83 KA 1110, 83 KA 1111.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Ossie Brown, Dist. Atty. by Richard Chaffin, Asst. Dist- Atty., Baton Rouge, for plaintiff-appellee.
    Kenneth L. Riche, Wall, Thomas, Riche & Wall, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by defendant of her conviction on two counts of possessing controlled dangerous substances.

Defendant, Jacqueline Polk Nettles, was charged by bill of information with possession of Pentazocine with the intent to distribute, a violation of La.R.S. 40:967(A). Defendant was charged by a second bill of information with possession of Phenter-mine and Pentazocine, violations of La.R.S. 40:967(C) and La.R.S. 40:969(C). Defendant pled guilty to the charge of possession with intent to distribute Pentazocine. A jury convicted defendant of the charges of possession of Phentermine and Pentazo-cine. Defendant was sentenced to serve three years at hard labor and pay a fine of $2500.00 for the possession of Phenter-mine. She was sentenced to serve a consecutive sentence of two years at hard labor and pay a fine of $2500.00 for the conviction of possession of Pentazocine. Additionally, she was sentenced to four years at hard labor without probation, parole or suspension of sentence on the charge of possession of Pentazocine with the intent to distribute to be served consecutive to the sentences on the possession charges. Defendant has appealed alleging two assignments of error.

PACTS

Defendant was arrested for the possession of Pentazocine and Phentermine when the narcotics were discovered after a search was conducted of her residence pursuant to a warrant. When the officers arrived to execute the warrant, defendant was seen at a window and was observed to run to the center of the house. The officers immediately entered the house and observed defendant throw an object into the toilet and flush it. The officers retrieved the object, a plastic bag which was found to contain talwin (Pentazocine). A search of the house and residence revealed a quantity of other narcotics, specifically Pentazocine and Phentermine.

ASSIGNMENT OF ERROR NUMBER 1:

In this assignment of error, defendant argues that the court erred in denying her motion for a mistrial after a police officer allegedly alluded to other crimes committed by defendant. The objection occurred during the cross examination of the State’s witness, Bobby Dale Calendar, an officer of the East Baton Rouge Parish Sheriffs Department, who participated in the execution of the warrant. The following exchange took place:

Q. Is that why they asked you to go help with the search warrant, because you’re the door breaker?
A. No, sir. I happen to know her previously, had previous experience with her.

At this point, defense counsel requested a mistrial, which the court denied.

La.C.Cr.P. art. 770(2) provides for mandatory mistrial when the judge, district attorney or a court official makes á remark or comment within the hearing of the jury referring directly or indirectly to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” Absent a showing of a pattern of unresponsive answers or improper intent, a police officer does not fall within the purview of La.C. Cr.P. art. 770. State v. Harris, 383 So.2d 1. (La.1980); State v. Johnson, 447 So.2d 56 (La.App. 1st Cir.1984). The testimony of Officer Calendar showed no pattern of unresponsive answers or improper intent. Consequently, a mistrial was not mandated under La.C.Cr.P. art. 770. In any event, the remark by the witness does not necessarily, or even probably, refer to prior criminal conduct. The trial court’s admonition to the jury was sufficient to cure any possible prejudice. We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 2:

In this assignment of error, defendant argues that the court abused.its discretion by cautioning a State witness to restrict the scope and content of his testimony on cross examination. Defense counsel moved for a mistrial during the testimony of Bobby Dale Calendar. The following exchange took place during the examination of Officer Michelle Fourrier:

Q. Had you not seen Ms. Nettles at the door and make [sic] a quick move, would you have broken down the door?
A. I don’t know, probably so.
Q. You would have just walked up to that door, you would have broken it down and went in without knocking? A. Probably.
Q. Why?
A. Based on past experience.
Q. Well, by being a narcotics agent?
A. Well.
THE COURT: Be careful what you say.
By Mr. Riche:
Q. You would have executed that search warrant whether you seen anybody at the door or not by breaking it in, is that a fair statement?

We note initially that the remark by the court was not objected to at the time of its occurrence, and defendant is thus prohibited from raising the issue on appeal. La.C.Cr.P. art. 841. Even if he had objected, the remark was well within the court’s authority to control the proceedings. La.C. Cr.P. art. 17; La.R.S. 15:275. The question of defense counsel was apparently designed to elicit a response that might refer to other crimes. The trial judge quite properly took steps to avoid another mandatory mistrial issue under La.C.Cr.P. art. 770. We find no merit to this assignment.

For the foregoing reasons we affirm the decision of the trial court.

AFFIRMED.

      . The record for each of these consolidated cases contains the identical assignments of error, relating to events during the trial of the simple possession charges. (83 KA 1111). No assignments of error were filed which arc pertinent to the charge for which defendant appcal-ed in 83 KA 1110, possession with the intent to distribute Pentazocine. We have performed a check for errors patent on the face of that record and, finding none, that conviction and sentence arc affirmed.


source: Caselaw Access Project

author: PONDER, J.

license: Public Domain

text:
    STATE of Louisiana v. Carl E. ARNAUD.
    No. 83 KA 1117.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    James L. Dendy, Baton Rouge, for defendant.
    Allen J. Myles, Asst. Dist. Atty., Plaque-mine, for the State.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, J.

Defendant was charged by bill of information with simple burglary, a violation of La.R.S. 14:62, and found guilty by a jury of six. He was sentenced to serve twelve years with the Louisiana Department of Corrections.

The defendant alleged five assignments of error. We find merit in the third which brought to issue the assistant district attorney’s mention of defendant’s prior criminal record. We reverse and remand.

A store in Plaquemine was burglarized and several pistols and watches were taken. Fingerprints lifted off several remaining watch cases were found to be those of the defendant. On the same night, a nearby doctor’s office, where defendant had once worked, had also been burglarized and cigarettes and a lighter stolen from that office were found in the store.

Defendant argues that the trial court erred in failing to grant a mistrial when defendant’s mother was asked if she was aware of defendant’s criminal record.

The trial judge sustained the objection of defense counsel and admonished the jury, but refused to grant a mistrial. While he felt the question was improper, the trial judge noted that there was no reference to a specific crime and that the question was a character question, and not an assertive one.

We find that the witness was not a character witness and the defendant’s character was not in question. While no specific crime was mentioned, we find that the reference to defendant’s criminal record qualified as an indirect reference to other crimes. See State v. Green, 315 So.2d 763 (La.1975).

The State argues that because the question was of an interrogatory rather than assertive nature, that a mistrial was inappropriate. We disagree.

Assertive questions are those which place before the jury the details concerning the other crime while a purely interrogatory question is one which, while probing for inadmissible evidence, does not present any facts constituting the other crime to the jury. State v. Hatch, 305 So.2d 497 (La. 1974), cert. denied 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975). In this case, the prosecutor’s question placed before the jury the fact that defendant had a criminal record. The prejudicial effect was .enforced by the witness’s answer.

The criminal record was not used to impeach credibility or to show guilty knowledge or intent. La.R.S. 15:495, 445 and 446. State v. Deville, 391 So.2d 1145 (La. 1980).

The effect of the inquiry as to prior criminal record is accentuated by the several questions the state asked about a hearing before the parole board.

In light of the record as a whole, we find that the evidence of defendant’s criminal record was inadmissible and highly prejudicial. The trial court erred in denying a mistrial under La.C.Cr.P. art. 770(2).

The conviction is reversed, the sentence is vacated and the matter is remanded for a new trial.

REVERSED AND REMANDED.

      . The following questioning occurred:
      "Q Do you know whether or not he was at Otasco’s?
      A No, he wasn’t at Olasco's.
      Q You’re sure of that, huh?
      A I’m positive of that.
      Q Now, you weren't a witness, were you?
      A No, I wasn't.
      Q Why you so positive? What makes you sure?
      A I'm just sure he wasn’t there.
      Q Is it because it’s appalling that lie would be charged with burglary of Otasco’s?
      A Let me tell you something.
      Q I just want you to answer my question. Is that the reason why you say that you’re sure?
      A My belief in Carl leads me to say that he isn’t guilty. He wasn’t at Otasco’s.
      Q Arc you aware of Carl having a criminal record?
      A I am aware of it.”

      . The only testimony given by the defendant’s mother which could relate to ihe defendant’s character was elicited by the prosecutor's questioning.


author: COVINGTON, Judge. LOTTINGER, Judge,

text:
    Jacqueline Anne WICKBOLDT v. Alvah Tyson WICKBOLDT.
    No. 83 CA 1144.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Linda Watkins, Baton Rouge, for plaintiff-appellee Jacqueline Anne Wickboldt.
    Stuart R. Thomson, Baton Rouge, for defendant-appellant Alvah Tyson Wick-boldt.
    Before COVINGTON, LOTTINGER and EDWARDS, JJ.
   COVINGTON, Judge.

This is an appeal by defendant-plaintiff-in-rule, Alvah Tyson Wickboldt, from a judgment in favor of plaintiff-defendant-in-rule, Jacqueline Anne Wickboldt, maintaining custody of the minor child, Jennifer Rose Wickboldt, in the mother of the child, subject to certain conditions. We affirm.

The Wickboldts were married on November 29, 1975 and resided in East Baton Rouge Parish. Of this marriage one child, Jennifer Rose, was born. When the child was about 15 months old, the parents separated, and a judgment of separation was granted between the parties on June 23, 1978. In those proceedings, Mrs. Wick-boldt was granted custody of the child, subject to reasonable visitation rights of the father.

The marriage was terminated by judgment of divorce in favor of Mrs. Wickboldt on December 1, 1980. Permanent custody of the child was granted to the mother, subject to reasonable visitation rights of Mr. Wickboldt. Child support was awarded. Although not in the record, it appears that on February 25, 1983, the father filed a rule to change custody, the denial of which is the subject of this appeal.

On appeal, the father contends that the trial court erred in denying change of custody to him and, alternatively, in refusing to grant joint custody to both parents. There is no merit in either contention.

Being a rule to change custody, this situation is governed by LSA-C.C. art. 157(A), which provides for the granting of custody in accordance with LSA-C.C. art. 146. At the time of the filing of the instant rule, there was a rebuttable presumption under Article 146 that joint custody was in the best interest of the child. This principle is consistent with the established jurisprudential rule that in custody cases the paramount consideration is always the best interest of the child. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir.1974).

There was some evidence that for a period of time the child had small sores on her body from mosquito bites and that her personal hygiene left a lot to be desired. There was also evidence that Mrs. Wick-boldt had lived with two different men since 1980, and had used alcohol and drugs.

In his reasons for judgment, the trial judge remarked:

“This case involves the custody of a child, who will be seven years old on the 29th of this month.
“By judgment of separation, in early 1978, her custody was awarded to her mother, and in February 25, 1983, a rule was filed by the child’s father to change custody because of circumstances which existed. It is to be noted that as of that date, she was living with her mother here in Baton Rouge, and her mother was living with the maternal grandparents here in Baton Rouge.
“The court has listened to the testimony in detail, taken very detailed notes, which I have reviewed throughout the process of the case.
“We’ve heard some testimony concerning those mosquito bites, and some testimony concerning other problems, but nothing in this court’s opinion, no proof that Mrs. Peterson [Mrs. Wickboldt] has done anything detrimental to this child, except allowing the child to remain in an unstable and immoral environment for a period of time. It is, however, pretty obvious that that did not work to the serious detriment of this child. This is truly a gifted and talented child, and is in my opinion one of the most bright, sociable, intelligent, poised, and just overall doll that this court has ever met for that age. “Mrs. Wickboldt, rather, Mrs. Peterson did take herself out of what was an extremely bad situation. She has not cleared up all of her problems, and is going to have to do that. People can change, and the proof of that is Mr. Wickboldt himself, who has made a success now of his life. He did admit in testimony to using drugs. He has to take some of the responsibility for Mrs. Peterson’s drug usage because they started down that road together, as I recall the testimony, even before they were married. But he proves to the court that people can change.
“The sole test in these kinds of cases is what is in the best interest of the child involved. Stability is still a very important factor. This child has been with her mother since November, 1977, at the very least by the pleadings because that’s when the parties separated according to the pleadings. This situation does seem stable now. She is apparently doing well in school, seems to be very happy, and very adjusted, and is very happy about her father and his situation, and her new brother. She has the love and affection of a family, a natural parent, and two natural grandparents, and an aunt in a stable home at this time. Mr. Wickboldt is starting a new family with all the problems in starting a new family.
“All things considered, the court feels that there is no reason to change custody at this time, provided that the court will place certain conditions on the continued custody in Mrs. Peterson. Until further orders of this court, custody is conditioned úpon Mrs. Peterson not consuming alcoholic beverages or controlled dangerous substances; regular attendance at Alcoholics Anonymous meetings; no association with Forest Dowdy or Steve Royer; and her domicile is restricted to the Parish of East Baton Rouge.”

While the record reveals that Mrs. Wickboldt’s past behavior has not been exemplary, there is evidence that she has “reformed.” The jurisprudence has developed a “reformation rule” to the effect that a mother is not considered unfit simply because of past conduct or past adulterous relationships if she has “reformed,” either by ceasing the conduct or the relationship, or marrying the paramour. See Fulco v. Fulco.

The evidence shows that at the time of the hearing, Mrs. Wickboldt was living with her parents in Baton Rouge; she was working, was not taking drugs at that time and was not living with a “boyfriend.” She still had a problem with alcohol, but promised to continue attending AA meetings. We find that this evidence suggests a reasonably stable home environment and an attempt to “reform” by Mrs. Wickboldt.

Aside from the consideration of the mother’s “reformation,” we find that it is in the best interest of the child for her to remain in the custody of her mother under the conditions set by the trial judge. Mrs. Wickboldt has apparently had the responsibility for raising Jennifer since the child was about a year old. Jennifer appears to be bright and talented, and does well in school. She seems reasonably happy and well-adjusted under the circumstances. There have been no apparent ill effects upon the child due to the mother’s problems.

We are also mindful of the rule that the trial judge’s decision in custody matters is entitled to great weight, because he is in a better position to evaluate the child’s best interest due to his overview of the conduct and character of the parties. Fulco v. Fulco. In the absence of a clear showing of abuse, the trial judge’s discretion should not be disturbed on review. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Griffin v. Griffin, 424 So.2d 1228 (La.App. 1st Cir.1982).

With these principles in mind, and after a careful review of the record, we find no clear showing of abuse on the part of the trial judge.

For the reasons assigned, the judgment appealed is affirmed. Costs are assessed against the appellant.

AFFIRMED.

LOTTINGER, J., dissents for reasons assigned.

LOTTINGER, Judge,

dissenting.

I disagree with the result reached by the majority.

Though the pleadings seeking a change in custody did not specifically seek joint custody as an alternative, I am of the opinion that La.Civ.Code arts. 146 and 157 mandate that the trial judge consider joint custody. This he did not do. To deprive one parent of the opportunity to participate in decisions concerning the children goes against the intention of the legislature in enacting joint custody. Joint custody awards do not in and of themselves guarantee equal physical custody of the child or children, but rather that the custodial arrangement be in the best interest of the child or children.

Therefore, I dissent and would remand for reconsideration of an award of joint custody.

      . In the judgment of divorce, Mrs. Wickboldt was "allowed to revert to the use of her maiden name, Jacqueline Ann Pederson (Peterson).”


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. William N. WARDLOW.
    No. 83 KA 1168.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      William J. Guste, Jr., Atty. Gen., New Orleans, Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, William N. Wardlow, was charged by bill of information with armed robbery on October 29, 1981, in violation of LSA-R.S. 14:64. Having waived trial by jury, the defendant was tried by the judge and found guilty as charged. He was sentenced to 50 years at hard labor, without benefit of probation, parole or suspension of sentence. The defendant has appealed his sentence alleging it is excessive.

The charge of armed robbery was based on the following facts: On October 29, 1981, the defendant and an accomplice robbed the victim, Robert E. Hicks, of his wallet and his automobile. Each of the culprits perpetrated the crime while armed with a knife and after threatening to kill the victim if he refused to comply with their demands. The victim was shoved out of the automobile, and the robbers drove off. Shortly thereafter, the victim succeeded in stopping a police car which was coming down the road. Hicks described the subjects and the vehicle to the police. After investigation, the police learned the identity of Wardlow. Soon afterward the police recovered the stolen vehicle. Upon learning that the defendant was in a nearby cafeteria, the police made the arrest of the suspect. His accomplice was not apprehended.

The defendant urges on appeal that the trial court erred in imposing an excessive sentence. The maximum sentence which can be imposed for the crime of armed robbery is imprisonment at hard labor for not more than ninety-nine years. LSA-R.S. 14:64. The penalty actually imposed by the trial court was fifty years, or about one-half of the maximum assessable penalty-

The trial judge has wide discretion, though not unbridled, in the imposition of a sentence within statutory limits, State v. Sepulvado, 367 So.2d 762 (La.1979); and given compliance with the sentencing criteria of LSA-C.Cr.P. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983).

Article I, Sec. 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or nothing more than the needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). The determination turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Pearson, 425 So.2d 704 (La.1982).

Sepulvado states that adequate appellate review must consider whether the trial judge gave due consideration to the statutory guidelines and has specifically stated his reasons for imposition of sentence as related to the particular defendant and the particular crime. While the trial judge need not articulate every mitigating and aggravating circumstance presented in LSA-C.Cr.P. art. 894.1, the record must reflect that the judge adequately considered the guidelines in particularizing the sentence to the defendant. State v. Gui-den.

A review of the record in the case reveals that the trial judge carefully particularized the sentence, considering each and every mitigating and aggravating factor as set out in LSA-C.Cr.P. art. 894.1 with respect to Wardlow. The judge noted that the defendant was 25 years of age, was found guilty of the offense, and had a previous criminal background. As reasons for the sentence, the trial judge pointed out that defendant had several prior felony arrests (some of the charges were still pending) and a prior felony conviction for simple robbery, which charge had been reduced from armed robbery. He further stated that both the instant conviction and the prior felony conviction were for violent crimes against the person and that the victim herein had been injured and could have been killed. The trial judge further noted that defendant had “hardly any work history of any stable condition,” and that he refused to cooperate in naming his accomplice. The victim in no way induced or facilitated the commission of the offense. The judge considered that the defendant’s conduct was such that the same or similar circumstances of violence were likely to recur. It was in this context that the trial judge concluded that there was an undue risk that during a suspended, probated or lesser sentence the defendant would commit another crime; that the defendant was in need of correctional attention, treatment and supervision; and that a lesser sentence would diminish the seriousness of the crime. Further, the trial judge discussed the mitigating factors which were taken into consideration in fixing the sentence. In summation, the record shows the trial judge’s articulation of reasons for sentence are more than adequate to meet the statutory criteria.

The sentence imposed is well within the statutorily defined range, and does not appear grossly disproportionate to the severity of the crime and does not appear to be imposed merely for the purposeless and needless imposition of pain and suffering. State v. Brown, 412 So.2d 998 (La.1982). Consequently, this assignment is without merit.

We affirm the sentence.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana v. Robert COLLINS.
    No. 83 KA 1170.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    William J. Guste, Jr., Atty. Gen., New Orleans, Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not the sentence imposed upon defendant is excessive.

On June 15, 1982, at approximately 3:30 A.M., defendant was arrested by a security officer of a Baton Rouge apartment complex after he allegedly broke into a convertible sports car by cutting the plastic rear window. Defendant was charged by bill of information with the unauthorized use of a movable, a violation of La.R.S. 14:68; and, simple criminal damage to property, a violation of La.R.S. 14:56. Defendant pled not guilty and waived his right to a jury trial. Defendant was acquitted of the unauthorized use of a movable charge. He was convicted of simple criminal damage to property worth less than $500 and sentenced to serve six months in the parish prison with 90 days of the sentence suspended. He was placed on unsupervised probation for a period of one year with the condition that he not be convicted of any criminal offense committed during the probationary period. Defendant appeals alleging, in his sole assignment of error briefed, the trial court imposed an excessive sentence.

Defendant contends the trial court did not comply with Code Crim.P. art. 894.1 by failing to consider several mitigating factors raised in his behalf. The following mitigating factors were raised by defendant: (1) his actions caused damage to property but did not cause serious harm, (2) he has made restitution to the victim, and (3) imprisonment would cause him to lose his job and would impose a hardship on his dependants.

The structure of Code Crim.P. art. 894.1 requires the trial court to weigh both aggravating and mitigating circumstances to determine whether or not to impose incarceration. The trial court is not required to articulate every such circumstance in imposing sentence, but the record must reveal the court adequately considered the guidelines enumerated in Code Crim.P. art. 894.1. State v. Parish, 429 So.2d 442 (La.1983). In this case the court adequately considered the mitigating factors.

In citing reasons for imprisonment the trial court specifically mentioned the guidelines of Code Crim.P. art. 894.1. Noting the extensive arrest record of defendant, the court concluded defendant needed correctional treatment in a custodial environment. See Code Crim.P. art. 894.-1(A)(2).

We note the trial court is vested with great discretion in imposing a sentence within statutory limits and such sentence should not be set aside as excessive absent a manifest abuse of this discretion. State v. Landos, 419 So.2d 475 (La.1982).

Defendant faced a possible sentence of six months imprisonment and a fine of $500 for the crime of simple criminal damage to property. La.R.S. 14:56. The fact that the trial court allowed defendant a 90 day suspension from his six month prison term and did not impose a fine illustrates the trial court accorded proper weight to both the aggravating and mitigating factors in defendant’s case. Furthermore, defendant’s unsupervised probation, conditioned upon his not being convicted of a crime committed during probation, indicates the trial court’s caution in tailoring the sentence to meet defendant’s rehabilita-tional needs.

For the foregoing reasons we find no manifest abuse of the trial court’s discretion. Accordingly, the sentence imposed by the trial court is affirmed.

AFFIRMED.

      . Assignment of error number 1 was not briefed and is therefore considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Wayne D. LOVE.
    No. 83 KA 1176.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      William J. Guste, Atty. Gen., New Orleans, Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Wayne D. Love, was found guilty by a jury of simple burglary in violation of L.S.A.-R.S. 14:62 and sentenced to 12 years at hard labor. He appeals his conviction.

On September 4, 1982, Baton Rouge City Police Officers, Jacob Guerin and James J. Kirk, were on patrol when Guerin noticed a shadow reflecting from the bottom half of a glass door of the Penthouse Club on Airline Highway in East Baton Rouge Parish. He did not notice such reflection from the top half of the door. Further, he noticed that a pickup truck was parked in front of the building. Based thereon, the officers decided to investigate. Upon approaching the pickup truck, the officers saw someone running away from the scene. Another person, later identified as co-defendant, Mark Aucoin, was allegedly seen in the truck, but slipped from view as the officers approached. As the officers drove up, Officer Guerin exited to pursue the individual seen running from the scene in a westerly direction. Officer Kirk, upon exiting the police car, saw the defendant herein rounding the corner of the building, walking in a westerly direction toward the pickup truck. After ordering the defendant herein to stop and place his hands upon the truck, Officer Kirk opened the door of the pickup. Therein, he found defendant-Au-coin. Just then Officer Guerin returned to the scene alone, having been unable to find and detain the individual who fled. Aucoin and defendant herein were then arrested and transported to central lockup. Both men were tried together and convicted by a jury of simple burglary.

Defendant assigns as error: (1) the trial court’s accepting a verdict contrary to law and the evidence, and (2) denying defendant’s post-judgment of acquittal. Defendant having combined Assignments of Error No. 1 and 2, they will be treated together.

Defendant asserts that the trial court erred when it accepted a jury verdict of guilty in that the State failed to prove the essential elements of the crime. He further contends that his conviction was based upon circumstantial evidence only.

It is well settled that a conviction will not be overturned if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to exist beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); and State v. Dixon, 432 So.2d 1025 (La.App. 1st Cir. 1983). Further, when that evidence is circumstantial, it must exclude every other reasonable hypothesis of innocence, assuming every fact to be proven that the evidence tends to prove. L.S.A.-R.S. 15:438; and State v. Shapiro, 431 So.2d 372 (La. 1983).

In the instant case, the evidence shows that the officers saw the defendant round the corner of the building from one direction just after one suspect fled the area in the other direction. The record reflects that defendant explained his presence at the scene by stating that he was returning home after an evening at the bowling alley located next door to the Club. He stated that he was merely taking a short-cut home. Both of the arresting officers testified that when questioned, eighteen year old co-defendant-Aucoin denied knowing the thirty year old defendant herein. At trial, Aucoin again denied knowing the defendant herein prior to their arrest.

The owner of the Penthouse Club testified that while the items allegedly taken were similar to those he stocked, he could not state unequivocally that they were taken from his business. Police were unable to find any of the defendant’s fingerprints on any of the items allegedly taken out of the Club (i.e., two 2-liter Coke bottles, cans of juice).

We find the evidence against defendant to be completély circumstantial. Further, the State has failed to exclude every other reasonable hypothesis of innocence even considering those facts proved which the evidence tends to prove. It is reasonable to assume that the defendant was on his way home from the bowling alley. Additionally, the State has failed to prove that there was an unauthorized entering of a structure with the intent to commit a felony or theft therein by the defendant herein.

For the above and foregoing reasons, defendant’s conviction and sentence are hereby reversed, and a judgment of acquittal is entered in defendant’s favor.

REVERSED AND JUDGMENT OF ACQUITTAL IS ENTERED.

      . "Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.
      "Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.”

      . While the defendant assigned three assignments of error by the trial court, he briefed only two. As such, the third assignment of error is considered as abandoned. Rule 2-12.4, Uniform Rules — Court of Appeal, Slate of Louisiana.


author: JASPER E. JONES, Judge.

text:
    Bobby Ray HUGHES, Plaintiff-Appellant, v. Sandra Charlotte Hartsfield HUGHES, Defendant-Appellee.
    No. 16153-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr. and Joe B. Cordill, Jr., Shreveport, for plaintiff-appellant.
    Rogers & Harlow by David L. White, Bossier City, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

Appellant, Bobby Ray Hughes, brought this action on July 18,1983 seeking a termination of or reduction in the alimony and child support payments awarded to his ex-wife by a consent judgment signed January 4, 1983. He appeals the trial court’s ruling sustaining the ex-wife’s exception of no cause of action. For the following reasons the appeal is dismissed.

On August 15, 1983 appellant’s ex-wife, Sandra, filed a rule to make past due alimony and child support executory and on August 16 she filed an exception of no cause of action to appellant’s rule to terminate or reduce alimony and child support. A hearing on both rules and the exception was held August 18, 1983. At the close of the testimony, the trial judge stated in his oral reasons for judgment that the exception was sustained. A judgment was rendered the same day, and signed August 26, 1982, making past due alimony and child support executory. The judgment further provided that appellant was to pay Sandra’s attorney’s fees and all costs of the proceedings. The signed judgment does not refer to the rule to terminate or reduce alimony and child support nor does it contain the trial judge’s ruling on the exception of no cause of action.

A judgment sustaining an exception of no cause of action is a final judgment. Fussell v. Fireman’s Fund Insurance Company, 225 So.2d 727 (La.App. 1st Cir.1969); Carpenter v. Travelers Ins. Co., 402 So.2d 282 (La.App. 3d Cir.1981). No appeal may be taken from a final judgment until it is signed by the trial judge. La.C. C.P. 1911. Where there is no signed judgment in the record an appeal is premature and must be dismissed. Mestayer v. Mes-tayer, 302 So.2d 342 (La.App. 3d Cir.1974); Peoples’ Enterprise, Inc. v. Landry, 288 So.2d 701 (La.App. 3d Cir.1974). See also Reed v. Superior Motors, 415 So.2d 219 (La.App. 2d Cir.1982).

The signed final judgment in the record resolves only issues raised by appel-lee’s rule to make past due alimony and child support executory. Appellant’s rule to terminate or reduce alimony and child support, in which the exception of no cause of action was filed, is a separate and distinct action involving entirely different issues and requiring different proof. The signed judgment contained in the record does not dispose of this rule or the exception.

The appeal is DISMISSED at appellant’s cost.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Maverick HARMON, Defendant-Appellant.
    No. CR82-818.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied May 25, 1984.

      See also 438 So.2d 235.
    Larry C. Dupuis, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

Defendant, Maverick Harmon, appeals from his conviction of second degree murder for the shooting of Michael George Blackwell for which he was sentenced to a mandatory term of life imprisonment. We affirm.

PACTS

On March 26, 1982, around 10:30 in the evening, the defendant and the victim became involved in a fight outside of Fran's Lounge in Lafayette, Louisiana. According to defendant, the victim approached him and made some derogatory remarks. Words were exchanged and a witness testified that the victim began to “push on” the defendant. The defendant, in a voluntary statement to the police, claimed that the victim made a “pocket-play” in which the victim raised his coat and exposed a pouch which was later determined to contain a knife.

A fight broke out between the defendant and the victim during which the defendant managed to draw the handgun he was carrying. Defendant claims that when he tried to hit thé victim with his gun it accidentally discharged, but that bullet did not strike the victim. According to eyewitnesses, the victim backed away from the defendant after the gun discharged and was on his knees before the defendant with his arms raised and his head turned away. At that point the defendant aimed and fired. The bullet entered the back of the victim’s head and the victim fell straight backward. The defendant fired again into the victim’s chest. The defendant claims that when he fired the first shot which hit the victim, the victim was approaching him and he, the defendant, was backing up.

By a unanimous vote, the jury found the defendant guilty of second degree murder. He makes the following assignments of error on appeal:

1. The trial court erred in refusing to allow questioning about the dangerous character and criminal record of the victim.
2. The trial court erred in allowing into evidence bullet fragments which were not properly identified.
3.The trial court erred in giving the jury an instruction on the Aggressor Doctrine.

ASSIGNMENT NUMBER ONE

By this assignment, the defendant argues that the trial court erred in not permitting the victim’s brother, Ronald George, to answer the question, “Had your brother ever been convicted of a crime?” Mr. George testified for the prosecution that he removed the victim’s knife from the closed pouch on the victim’s belt after the shooting. The defendant argues that the question regarding the victim’s prior criminal record is relevant to show this particular witness was biased and, by removing the knife, was trying to conceal that his brother had a bad reputation. Mr. George’s motive in removing the knife from his brother’s body is not important. It is clear that at the time of the shooting, the victim had a pouch containing a knife attached to the belt he was wearing.

Defendant also asserts that evidence of the victim’s criminal record would show a propensity toward violence and is necessary and admissible to show the defendant’s state of mind at the time of the shooting. Evidence of the dangerous character of the victim is not admissible unless there is evidence of a hostile demonstration or of an overt act on his part against the accused. LSA-R.S. 15:482. At the time the question was asked, the only evidence in the record of an overt act was the defendant’s statement in which he claimed that the victim exposed his knife pouch and began the physical confrontation.

Even if these statements by defendant are sufficient to show that there was an overt act, we find that the trial judge was correct in not allowing Mr. George to answer the question regarding his brother’s criminal record. Traditionally, character evidence is established by general reputation, not by specific acts. However, the victim’s criminal record may be admissible to show the defendant’s state of mind if the defendant was aware of prior violent acts by the victim at the time of the homicide. State v. King, 347 So.2d 1108 (La.1977).

The only evidence in the record that the defendant had any knowledge of the victim’s criminal record is in his statement to the police. In that statement, the defendant says he heard on the street that “The dude was bad really, he thought he was bad, he’d hurt you.” This statement is not sufficient to show that the defendant had any knowledge of specific acts by the victim which would affect his state of mind. In any event, the question as asked would not necessarily have solicited evidence of violent acts by the victim, only criminal acts which may not have been admissible.

This assignment of error is without merit.

ASSIGNMENT NUMBER TWO

Defendant asserts that he was denied due process of law when bullet fragments were admitted into evidence which were not properly identified and no chain of possession was shown.

Dr. Freeman, the pathologist who performed an autopsy on the victim, testified that he took the fragments from the victim’s body, placed them in a film cannister and kept them locked up until he turned them over to Detective Rickard. Dr. Freeman stated further that these were the only bullet fragments in his possession at that time. Detective Rickard testified that he received the film cannister with the fragments from Dr. Freeman, marked it with an evidence tag, and retained possession of it until it was introduced at trial.

Defendant’s objection is that Dr. Freeman did not positively identify the fragments at trial; however, in view of the extensive testimony as to the chain of custody of the film cannister, we find that the trial court was justified in finding that the bullet fragments in the cannister were those removed from the victim’s body. In any event, defendant has demonstrated no prejudice as a result of the admission of the fragments. It is unlikely that such prejudice could be shown in light of the defendant’s admission that he fired the shots which killed the victim.

ASSIGNMENT NUMBER THREE

At trial, defendant objected to a jury instruction on the Aggressor Doctrine, but the objection was overruled. The trial judge has an obligation to charge the jury on the law applicable to every phase of the case supported by the evidence whether or not accepted by him as true. State v. Marse, 365 So.2d 1319 (La.1979). In instructing the jury on the Aggressor Doctrine, the trial judge was charging the jury on the whole of the law regarding self-defense. Considering the evidence of the fight between the defendant and the victim, we find that the instruction objected to was within the trial judge’s discretion.

For the above reasons, the defendant’s conviction is affirmed.

A.FFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Louis R. RUTAN, Defendant-Appellant.
    No. K83-922.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Fred S. Gahagan, Gahagan & Gahagan, Natchitoches, for defendant-appellant.
    Ronald C. Martin, Dist. Atty., Natchi-toches, for plaintiff-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

We granted writs of certiorari to review the trial court’s denial of a motion to acquit. The defendant was charged with: careless and reckless operation of a vehicle, a violation of LSA-R.S. 14:99; driving while intoxicated, a violation of LSA-R.S. 14:98; and operating a vehicle while his license was suspended, a violation of LSA-R.S. 32:415. The charges were consolidated for trial. The defendant contends that no evidence was adduced to prove that he was operating a motor vehicle, an essential element of the crime of driving while intoxicated.

LSA-R.S. 15:271 provides:

“The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant guilt. ” (Emphasis added)

After a bench trial, the defendant was convicted of driving while intoxicated and operating a vehicle while his driver’s license was suspended, but was found not guilty of careless and reckless operation.

LSA-R.S. 14:98 defines, inter alia, the crime of driving a vehicle while intoxicated as follows:

“A. The cnme of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel 07-other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs 07-barbiturates.

LSA-R.S. 32:415 defines, in pertinent part, the crime of operating a motor vehicle while a license is suspended:

“A. It shall be unlawfully for any person to operate a motor vehicle upon any public highway of this state during the pe7iod of suspension, revocation 07-cancellation of any license which may have been issued to him by this state or by any other state. ”

The defendant did not take the stand nor did he offer any evidence. At the close of the State’s case, he moved for acquittal. LSA-C.Cr.P. Art. 778 provides:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses cha7-ged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a judgment of acquittal at the close of the state case, the defendant may offer its evidence in defense.

The trial court ruled that there was sufficient circumstantial evidence to prove the defendant’s operation of a vehicle while intoxicated.

In State v. Lindinger, 357 So.2d 500 (La.1978) the Supreme Court stressed that under R.S. 14:98 the State must prove that the defendant did operate his vehicle. In the case sub judice the State sought to prove this element of the crime through circumstantial evidence.

LSA-R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

In State v. Lindinger, supra, the Louisiana Supreme Court addressed the identical issue before us, namely: “Did the [circumstantial] evidence before the trier of fact exclude every other reasonable hypothesis than that the accused, admittedly found later to be intoxicated, had ‘operated ’ the motor vehicle while so intoxicated.” We find, for the reasons discussed below, that the circumstantial evidence failed to exclude every reasonable hypothesis of innocence.

The State’s case-in-chief presented three witnesses, namely: Deputy Pugh and Deputy Mason of the Natchitoches Parish Sheriff’s Office, and Corporal Rodney Brossette of the Natchitoches Police Department. Their testimonies constituted the State’s evidence of the alleged offenses.

On April 17, 1983 at approximately 1:30 A.M., Mrs. Weaver, the owner of the Hilltop Lounge near Campti, called the Natchi-toches Parish Sheriff’s Office to report that there had been an accident in the lounge parking lot. Deputies Pugh and Mason were dispatched to the scene. Deputy Pugh was the first to arrive and found the defendant slumped over in the driver’s seat, with his head against the steering wheel, sleeping with his arms down away from the controls of the vehicle. Deputy Pugh reached into the car through an open window and shook the - defendant to wake him. Deputy Pugh then requested that the defendant get out of the ear and the defendant complied. When Deputy Mason arrived he observed the defendant leaning against his (Rutan’s) car, unsteady on his feet. Both officers were of the opinion that the defendant was intoxicated.

Deputy Pugh noticed that a vehicle in the parking lot was damaged at the rear passenger side, but the record does not reflect the location in the parking lot of the damaged vehicle. Deputy Pugh did not observe any damage to defendant’s car. Neither deputy had personal knowledge of the accident.

The deputies administered a field sobriety test which, in their opinion, the defendant failed. The defendant was then arrested and voluntarily submitted to a P.E.I. test administered by Corporal Brossette which showed a blood alcohol level of .21 percent.

After Corporal Brossette’s testimony, the State rested its case. The defendant then moved for acquittal contending that the evidence adduced did not prove that he was operating a vehicle, an essential element in the crime of driving a vehicle while under the influence of alcoholic beverages. The trial court denied the motion and found that there was sufficient circumstantial evidence to convict the defendant of driving while intoxicated and driving under suspension, but did not find the defendant guilty of careless and reckless operation of a vehicle.

The evidence does not show: (a) how long Rutan had been in the parking lot before the deputies arrived; (b) if Rutan had driven the automobile on the highway to the lounge; or (c) if he had driven the ear to the lounge, that he was intoxicated when he drove from the highway to the parking lot.

The facts of this case are distinguishable from State v. Sims, 426 So.2d 148 (La. 1983), and State v. Phillips, 389 So.2d 1260 (La.1980). In State v. Sims, the defendant was found in his car parked on the shoulder of the road; the car’s engine was running, the stereo was on, and the headlights were being used. The defendant was found intoxicated in his vehicle and no alcoholic beverages were found in or near the car. In the present case, Rutan was found in his automobile which was parked in the parking lot of a lounge where alcoholic beverages were readily available to the general public. The automobile’s engine, the radio, and the headlights were off.

In State v. Phillips, supra, the defendant’s conviction was upheld on the basis that all reasonable hypotheses of innocence had been overcome. In that case the defendant was found in his truck, stopped halfway on the road, with his headlights on in broad daylight. Unlike those facts, Rutan’s automobile was in a parking lot with the automobile’s control systems off.

Although the State proved the defendant was intoxicated, the record is void of any evidence proving defendant operated his vehicle, an essential element to the crime of driving while intoxicated and driving under suspension.

For the foregoing reasons, we reverse the defendant’s convictions and sentences for driving while intoxicated and operating a motor vehicle while his license was suspended. We order that the defendant be discharged.

REVERSED AND RENDERED.