author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Robert NATHAN.
    No. 83 KA 0466.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Bernard E. Boudreaux, Jr., Dist. Atty., Edward M. Leonard, Jr., Asst. Dist. Atty., Franklin, for appellee.
    Richard P. Ieyoub, John Percy Foreman, Lake Charles, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Robert Nathan, was indicted by the grand jury for aggravated crime against nature, aggravated rape, and aggravated kidnapping, occurring on February 28, 1982, in violation of La.R.S. 14:89.1, 42 and 44 respectively. Defendant plead not guilty. After trial by jury on the aggravated rape charge, he was found guilty of forcible rape. He was sentenced to twenty-five (25) years at hard labor with at least two (2) years without benefit of probation, parole, or suspension of sentence and with credit for time served from arrest to the date of sentencing. Defendant appeals his conviction and sentence, alleging nineteen assignments of error, of which he has briefed eighteen to this court. An assignment of error not briefed is considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

On the evening of February 28, 1982, a young woman after visiting a friend was driving home alone in her boyfriend’s truck down Willow Street in Franklin. While stopped at a red light, a man opened the truck door, pushed her over and got in. He stated he wanted a ride and would pay. for the gas. The woman told him she was on her way home and could not give him a ride. He began driving, however, and eventually turned off the road and into a cane field where he stopped the truck. He told the victim he was going to rape her and then began to hit her with his fist. The truck was wrecked on the passenger side which prevented the door from being opened. Thus, the woman was unable to open the door and escape.

The man forced her to take off her clothes, took off his pants and began to have sexual intercourse with the woman on the seat of the truck. He continued to hit and threaten to kill the victim. She was then forced to perform oral copulation. Thereafter, the rapist forced the woman to have anal intercourse. After this act, the man picked up a long neck beer bottle from the floor of the truck and inserted it into the victim’s rectum. After removing this he again forced her to have oral sex and anal intercourse. He then made her put her clothes on and pulled her out of the truck toward some trees. There he hit her in the head with a beer bottle, cut her throat and stomach and kicked her. He threw down the broken beer bottles, pulled her back into the truck and drove back into town. There he left the truck and warned the victim not to say anything about the attack.

The victim started the vehicle and tried to run over the man. The truck, however, stalled; and the man started coming towards the truck. She was able to restart the truck and drove home.

Upon arriving home, she told her boyfriend she had been raped and he called the police. He took her to the hospital where she was treated for her injuries, examined and released. Then they went to the police station, where she gave a description of defendant and viewed a photographic lineup. In addition to identifying defendant at this and two other photographic lineups, the victim made a positive in-court identification of defendant.

ASSIGNMENT OF ERROR NOS. 1, 5, AND 8

Defendant argues that the trial court erred in the denial of the motion to suppress defendant’s confession because it was involuntary and because the judge considered matters outside the evidence.

In Louisiana the statutorily mandated test for voluntariness is not whether a confession- was induced by improper external forces but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; State v. Jackson, 381 So.2d 485 (La.1980). The State has the burden of affirmatively proving that the confession was free and voluntary. Accordingly, it must rebut specific testimony introduced by the defendant concerning factual circumstances which indicate coercive measures or intimidation. State v. Brooks, 434 So.2d 1171 (La.App. 1st Cir.1983).

The admissibility of a confession is a question for the trial judge. His conclusions on credibility and the weight of testimony regarding the voluntariness of a confession for admissibility purposes will not be overturned on appeal unless they are unsupported by the evidence. State v. Brooks, supra.

During interrogation defendant began to cry and indicated he had been hearing voices which told him to do criminal acts. Despite the crying, the deputies continued the questioning. The record indicates Detective Arthur said he would try to get some help for defendant if defendant told the truth. Defendant contends the confession was induced by this promise of help for defendant’s emotional problems.

The trial judge acknowledged that defendant was obviously upset during the questioning, but he found that this crying was not caused by physical force, nor any undue influence by the police. Additionally, the trial court ruled that the promise of help was not an inducement which caused defendant to make his statement. We agree.

In State v. Hernandez, 432 So.2d 350 (La.App. 1st Cir.1983) the defendant testified he was offered help by the officer questioning him. The officer stated he would help the defendant if he gave a statement. In that case we found that the vague promise to help was insufficient to negate the voluntary nature of defendant’s responses to questioning. Likewise, here, we hold that the promise to help cannot be considered sufficient inducement to vitiate the voluntary nature of defendant’s incul-patory statement.

ASSIGNMENT OF ERROR NOS. 2, 3, 4, 6, 7, 9 AND 10

Defendant contends the trial court erred in failing to suppress the rape victim’s out-of-court identification of defendant and the photo array evidence. Three photographic lineups were conducted in this case. The first occurred the night of the rape and consisted of six black and white photographs. The victim selected the photograph of defendant but said she would like to see him in person before she could be positive. Detective Arthur stated that was not possible at the time, but he did obtain a color photograph of defendant for a second photo lineup. This second array, conducted a few days later, consisted of six color photos, one of which included defendant. Defendant was the only person from the first lineup whose picture also appeared in the second. The officer did indicate to the victim that a photo of defendant was included in the second array, although he did not suggest which photo was that of defendant.

The defense contends that the victim knew the name of defendant at this second lineup and that these photographs contained names on the bottom which the victim saw. Detective Arthur testified that the victim knew the name since she signed the photo array report from which contained the name of the man she identified. The victim testified that, although the name was on the form, she did not recall nor recognize his name. In any event, the victim testified that the photographs were in a file folder which covered the names when she viewed them. Although he was not sure when he testified at the motion to suppress, Detective Arthur agreed the names were covered when he testified at trial.

After the second photo array, the victim stated she was sure but wanted to see the first photo array one more time in order to positively identify the rapist. The third array was almost identical to the first, except that one photograph, not that of defendant, was exchanged for another. Detective Arthur could not recall why this was done. At this third lineup, however, the victim positively identified defendant as the man who raped her.

Defendant contends the photographic lineups were suggestive because the victim knew the name of defendant at the second lineup where the victim saw the names on the photos, defendant was the only person included in both the first and second arrays, the detective told the victim that he had a better and clearer picture of defendant which would aid her identification, and a witness for the State perjured himself on the stand regarding the circumstances under which one of the arrays was conducted.

In determining the constitutionality of an out-of-court identification, several factors must be considered. First, the suggestiveness of the identification procedure must be evaluated. State v. Guillot, 353 So.2d 1005 (La.1977). A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. State v. Robinson, 386 So.2d 1374 (La.1980). In reviewing the procedure, the trial court must look at the totality of the circumstances surrounding the identification. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

Although the testimony does indicate the victim knew defendant’s picture was in the second photo lineup, that only a photograph of defendant was included in both the first and second lineups, and that the victim may have known the name of the man she identified, we find that there was nothing on the photographs nor anything said to the victim that singled out defendant. In addition, we find that the testimony adduced indicates the names on the photographs were not visible at the second photographic lineup.

Even if an identification is suggestive, it will not result in reversal of a conviction if it is demonstrated that the identification was reliable. The factors to be used in determining reliability include (1) the opportunity, of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of her prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra.

Applying the Manson analysis to the present case, we find that the out-of-court and in-court identifications were reliable and that there was no misidentification.

(1) The opportunity to view: The victim was with defendant for approximately an hour. Although the rape occurred at night, the victim was in close proximity to the rapist and would have had a good opportunity to view him.

(2) The witness’ degree of attention: The victim was not a casual observer; her full attention was focused on her attacker and his actions.

(3) The accuracy of the description: The victim gave a description to Detective Arthur which reminded him of defendant. The officer used this description to prepare a photo array including defendant’s photograph which the victim identified.

(4) The witness’ level of certainty: The victim consistently identified defendant as the rapist.

(5) The time between the crime and the confrontation: Although the lineup occurred about three months after the rape, the first photo lineup occurred the night of the attack. The second occurred the next day, and the third occurred three days after the rape.

Defense counsel argues the procedure used in the live lineup was suggestive because the attention of the victim was unduly focused on defendant. We find this argument to be without merit. In his brief, defendant admits that, when the victim looked straight through the peep hole, her attention would have been focused on someone who was standing to the right of the defendant, not defendant himself.

Furthermore, we find that there was sufficient resemblance of the physical characteristics and features of persons in the lineup so that the witness’ attention was not focused on defendant. Although there was a difference in some of the features, such as height, there was enough resemblance in other features, such as hair color, skin color and complexion, that no undue suggestion occurred in this lineup. A strict identity of characteristics is not required, but a sufficient resemblance to reasonably test the identification is necessary. State v. Guillot, supra.

ASSIGNMENT OF ERROR NO. 11

Defendant alleges the chain of cusr tody of the broken beer bottles and cup holder introduced at trial was defective. A showing of a continuous chain of custody is not essential to the introduction of physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced is the same as the object originally seized by the officer, State v. Vaughn, 431 So.2d 763 (La.1983); State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983). A complete chain of custody was not clearly established.

The evidence, however, was positively identified by Detective Arthur. That testimony combined with the testimony of Mr. Girouard makes it more probable than not that the beer bottles and cup holder introduced were the same as those in the truck and later found by Detective Arthur at the location of the rape. We find no error in the admission of this evidence.

ASSIGNMENT OF ERROR NO. 12

Defendant contends that his sentence of twenty-five years in prison at hard labor, with two years without benefit of parole, probation, or suspension of sentence, is excessive. Defendant was charged with aggravated rape, however, the jury returned a verdict of guilty of forcible rape. The sentencing range for forcible rape is not less than two nor more than forty years, with at least two years of the sentence without benefit of probation, parole or suspension of sentence. La.R.S. 14:42.1.

Sentences in Louisiana for forcible rape generally reflect a range from ten to twenty-five years at hard labor, with parole excluded for periods of two to eight years. Some cases have imposed the maximum sentence of forty years at hard labor. See State v. Telsee, 425 So.2d 1251 (La.1983). Considering the trial judge’s reasons for sentencing and the record as a whole, we do not find that the sentence imposed is excessive.

ASSIGNMENT OF ERROR NOS. 13 AND 14

Defendant contends the trial court erred in failing to grant defendant’s two motions for mistrial on references by a witness regarding other crimes committed by defendant.

During the trial, Detective Arthur made several references to pictures for the photo lineup acquired from the criminal files of the Iberia Parish Sheriff’s Department. Defendant argues this testimony served as the basis for a mistrial.

La.Code Crim.P. art. 770 mandates a mistrial upon motion of the defendant when a remark or comment made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. A police officer, however, is not a court official within the meaning of La. Code Crim.P. art. 770; and, therefore, a mistrial is not required even if a policeman in the course of testifying refers to another crime. State v. Harper, 430 So.2d 627 (La.1983); State v. Perry, 420 So.2d 139 (La.1982). The appropriate remedy for inappropriate remarks by a police officer is an admonition to the jury each time the remarks were made by the detective. Thus, we find that the trial judge did not err in denying defendant’s motions for mistrial.

ASSIGNMENT OF ERROR NOS. 15, 16, AND 19

Defendant contends the trial court erred in denying the motion for new trial based on a prejudicial error in the proceedings. At the hearing on the motion, counsel for defendant attempted to call Ms. O’Prien, one of the trial jurors, and examine her regarding undue force placed on her from other jurors. The State objected on the basis of La.R.S. 15:470. The trial court sustained the objection and denied the motion for a new trial.

Under La.R.S. 15:470 a juror is not competent to give testimony to impeach the verdict rendered by a jury of which he was a member. That evidentiary rule, however, cannot overcome the defendant’s constitutional rights. Durr v. Cook, 589 F.2d 891 (U.S.App. 5th Cir.1979), State v. Sinegal, 393 So.2d 684 (La.1981). In Durr v. Cook, supra, the court noted that Durr presented a substantial claim that his rights may have been violated, and thus the jury foreman could testify. Here, however, the trial court in ruling the juror incompetent to testify and in denying the motion for new trial, noted defendant did not state with particularity the nature or the type of the extent of any adverse influence upon any prospective juror. We find that defendant has not presented a substantial claim that his rights have been violated. Therefore, the trial court did not err in applying La. R.S. 15:470 to prevent the juror from testifying and in denying the motion for new trial.

ASSIGNMENT OF ERROR NO. 18

Defendant contends the State’s evidence was insufficient to prove his guilt. The evidence is sufficient 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Long, 408 So.2d 1221 (La.1982). After a review of the record, we find the evidence sufficient to support defendant’s conviction. Not only did the evidence include testimony regarding defendant’s oral inculpatory statement, the victim made a positive identification in an out-of-court photo lineup and an in-court identification of defendant.

DECREE

Therefore, for the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . Assignment of error number 17 was not briefed to this Court. Although assignment of error number 3 was not listed, it was included in defense counsel’s second argument and is addressed here.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry E. BOOKER.
    No. 83 KA 0471.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Writ Denied March 16, 1984.

      Alexander L. Doyle, Asst. Dist. Atty., Houma, for plaintiff.
    Charles G. Blaize, Indigent Defender Bd., Houma, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Larry E. Booker, was charged with second degree murder, a violation of LSA-R.S. 14:30.1, in connection with the shooting death of his wife, Loraine Booker. A jury convicted him as charged, and he was subsequently sentenced to serve life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. He has appealed, alleging five assignments of error:

1. The trial court erred in denying defendant’s motion for a speedy trial.
2. The trial court erred in denying defendant’s motion to proceed as his own co-counsel.
3. The trial court erred in admitting a close-up color photograph of the victim after the shooting into evidence.
4. The trial court erred in denying defendant’s motion for a mistrial after it allowed the jury to re-examine the grusome photograph after the jury had started deliberation.
5. The trial court erred in denying defendant’s motion for a new trial.

The victim, Loraine T. Booker, was killed by a shot from a .30-30 rifle fired from close range. The shot entered the victim’s head just below her left eye, killing her instantly.

Defendant was arrested in Mobile, Alabama, several days after the shooting. He gave a written statement in which he admitted that he was holding the gun when the shot was fired, but he stated that the rifle went off accidentally when she grabbed the gun as he was leaving to go on a hunting trip. Defendant admitted that he and the victim had been quarreling all day and that he had consumed a substantial quantity of alcohol.

After the shooting, defendant took his clothing and drove to New Orleans, disposing of the rifle in a field along the way, where it was later recovered. Defendant hitch-hiked his way to Mobile, where some of his relatives lived. He was arrested there on other charges, and it was discovered that an alert had been sent to the Mobile police because of defendant’s relatives there. He waived extradition and was brought back to Louisiana, where he gave the statement. A grand jury subsequently indicted him for the second-degree murder of his wife.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant argues that the trial court erred in denying his motion for a speedy trial.

Initially, wfe note that the trial in this case was commenced well within the three year period set out in La.C.Cr.P. art. 578. Defendant was arrested on November 24, 1981, and indicted for second degree murder on January 7, 1982. The trial commenced on February 14, 1983.

In Louisiana every person is guaranteed the right to a . speedy, public and impartial ...” trial. La. Const. of 1974, art. I, § 16. Under the provisions of article 578 of the Louisiana Code of Criminal Procedure, the State has three years from the date of institution of prosecution to commence trial for this crime.

The right to a speedy trial attaches from the time the defendant becomes an accused by arrest or actual restraint or by formal bill of information or indictment. State v. Bodley, 394 So.2d 584 (La.1981). The time limitation is suspended whenever the defendant files a preliminary plea or motion to quash until the court rules on these matters. In no instance, however, will the State have less than one year after the court’s ruling to commence trial. La.C. Cr.P. art. 580.

If the defendant files a motion for a speedy trial, as in this case, the provisions of article 701(D) of the Code of Criminal Procedure apply. This article provides in part:

After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial shall be as follows:
(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.

As noted above, in this case the defendant was arrested November 24, 1981, and indicted January 7, 1982. A trial date was set for June 23, 1982, but was cancelled on the motion of the State. The minutes reflect that the district attorney requested the continuance because of a conflict with another criminal jury trial which was underway. (However, the transcript of the hearing on the motion reflects that the prosecution thought the case was continued because of the absence of a witness.)

On June 30, 1982, the defendant filed in proper person, a motion for a speedy trial. A hearing was set for September 28, 1982, but was reassigned to October 29, 1982. At the hearing on October 29th, the trial court denied the motion. In effect, the lower court held that since the trial date fell within the time frame set forth in La.C. Cr.P. art. 578, prosecution of the defendant met constitutional muster. The hearing was very short and it is significant to note that neither the defendant nor his counsel made any arguments as to why the motion should succeed.

Our analysis of the record convinces us that this assignment of error lacks merit. Flexibility is the governing philosophy in determining whether or not delay constitutes denial of the right to a speedy trial. In determining whether defendant’s constitutional right to a speedy trial has been violated, no fixed period of time is determinative. Rather, the conduct of both the prosecution and defense are weighed in light of four factors, including the length of delay, the reason for the delay, the defendant’s assertion of his rights and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. James, 394 So.2d 1197 (La.1981).

In weighing the above factors, we admit no hesitation in finding defendant’s argument unpersuasive. First, the length of the delay between indictment and trial was only a little over one year. Given the seriousness of this crime, we do not feel this was an excessive delay. Second, the reason for the delay appears tenable. Whether one accepts the explanation provided in the minutes (interference with another criminal jury trial), or that posited by the district attorney at the hearing (apparent absence of a witness), the reasons for the delay mitigate in favor of the State in this case. Third, while it is true that the defendant did assert his right to a speedy trial soon after the original trial date was cancelled, it is also true that the defendant failed to demonstrate even the slightest prejudice to his case because of the relatively short delay between the first and second trial dates. Our own examination of the record reveals no such prejudice either.

Thus, using the flexible approach suggested by the Barker v. Wingo case as our guide, our analysis reveals the trial judge was correct in denying defendant’s motion, and as such, we reject this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant argues that the trial court erred in denying his motion to proceed as his own co-counsel.

On November 25, 1981, defendant appeared in court, and, after having advised the court that he was without counsel and financially unable to afford an attorney, the court appointed the Indigent Defenders Board to represent him. On June 2, 1982, defendant filed a pro se motion, requesting that he be permitted to directly participate in the proceedings, as co-counsel, because much of the defense evidence consisted of facts within his exclusive knowledge. After a hearing, the court denied defendant’s motion.

The right to self-representation is implied by the Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Louisiana Code of Criminal Procedure, article 511 also provides for a defendant’s right to counsel as follows:

The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours.

Defendant argues that the court violated defendant’s right to counsel by refusing to permit him to act as co-counsel. We disagree.

In Faretta, supra, the court was con- ' cerned solely with the issue of a defense request to represent himself; the court found a violation of his Sixth Amendment’ right in the action of the trial court in requiring the defense to be presented through a court-appointed attorney. The court reversed defendant’s conviction, directing the court to permit defendant to represent himself if he chose to exercise the right of self-representation.

Defendant herein did not wish to represent himself, but to act as co-counsel, in conjunction with a court-appointed attorney. Defendant has no constitutional right to be both represented and representative. State v. McCabe, 420 So.2d 955 (La.1982); Bodley, 394 So.2d at 593. Defendant has not alleged any way in which his defense was prejudiced because he did not participate directly as counsel. We find no error on the part of the trial court and reject this assignment of error.

ASSIGNMENTS OF ERROR THREE AND FOUR

In these assignments of error defendant alleges that the trial court erred in admitting certain photographs of the decedent into evidence and further erred in permitting the jury to reexamine the photographs after the jurors had retired to consider their verdict. Defendant argues that because the defense stipulated as to the identity of the victim and that she had been shot in the face, the photographs were not relevant to any contested issues.

Photographs of the victim are generally admissible to prove corpus delecti, to corroborate other evidence establishing the cause of death, and to establish the identity of the victim. State v. Brogdon, 426 So.2d 158 (La.1983). The ruling of the trial court with respect to allegedly gruesome photographs will not be disturbed unless the prejudicial effect of the pictures clearly outweighs their probative value. State v. Germain, 433 So.2d 110 (La.1983). Although the existence of a stipulation of the facts agreed to by counsel must necessarily bear upon a balancing of the probative value of the photographs against their prejudicial effect, the decision as to admissibility, nevertheless, remains primarily one for the trial court. State v. Cobbs, 434 So.2d 1243 (La.App. 1st Cir.1983). The court found the photographs relevant to the defense of accident. We think the probative value of the pictures outweighed their unpleasant nature, and we find no error on the part of the trial court in admitting the photographs into evidence.

Defendant urges that the trial court should have declared the mistrial requested by defendant, when the jurors requested to see the photographs during deliberation. Basically, his argument is based on the admissibility vel non of the photographs. Since we have already found the photograph to be admissible, we hold that the trial court did not err by denying defendant’s motion for a mistrial.

These assignments of error are without merit.

ASSIGNMENT OP ERROR NUMBER FIVE

By this assignment, the defendant argues the trial court erred in failing to grant his motion for a new trial. This motion was predicated on defendant’s assertion that the verdict was contrary to the law and the evidence.

In reviewing a conviction via a motion for new trial based upon the alleged insufficiency of the evidence, the court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hoffer, 420 So.2d 1090 (La.1982).

The crime of second degree murder is defined in La.R.S. 14:30.1, in part, as follows:

Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm;

The elements of the offense the state must prove are: (1) a killing of a human being occurred; (2) the defendant did the killing; and (3) the defendant had a specific intent to kill or inflict great bodily harm. Specific intent is a state of mind in which “the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). La.R.S. 15:445 provides as follows:

In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.

On appeal, the defendant argues that the State failed to prove the element of intent. Essentially, defendant asserts that the evidence failed to rebutt defendant’s claim that the shooting of his wife was accidental. On the other hand, the State asserts that when the evidence presented to the jury is taken as a whole, then it clearly preponderates in favor of a guilty verdict. We have carefully reviewed the entire record and the exhibits in this case and we think the evidence supports the jury’s determination of guilt.

In the final analysis, our function is not to review the facts and substitute our opinion for that of the jury’s. Rather, we are limited to reviewing whether there is sufficient evidence to support the verdict, and we must do so in a light most favorable to the State. Jackson, 448 U.S. at 319, 99 S.Ct. at 2789. See also State v. Washington, 421 So.2d 887 (La.1982). We think that when the evidence is viewed in a light most favorable to the State, then it is certainly reasonable that a rational trier of fact could have concluded Booker was guilty of the second degree murder of his wife. We agree with the jury’s determination of guilt, and as such, we reject this assignment' of error.

Having found no merit in the defendant’s assignments of error, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . Article 701(D) was amended September 10, 1982, however, the language quoted was in ef-feet on the date of the motion for a speedy trial and the date of the trial on the merits.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Clay C. FREEMAN.
    No. 83-KA-0482.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied April 2, 1984.

      Bernard A. Boudreaux, Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., Franklin, appellee.
    Gary L. Newport, Franklin, for appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Clay C. Freeman, was charged by bill of information with simple burglary and felony theft in violation of LSA-R.S. 14:62 and 14:67, respectively. He was tried on July 21 and 22, 1982, before a six-man jury and convicted of those charges by a unanimous verdict in accordance with LSA-C.Cr.P. art. 782. Pri- or to sentencing, the state filed a bill of information alleging defendant to be a habitual offender. On January 5, 1983, after a full hearing, the trial court found defendant to be a second felony offender under LSA-R.S. 15:529.1 and sentenced him to serve concurrent terms of 24 years at hard labor for his theft conviction and 20 years at hard labor for his simple burglary conviction.

Defendant appeals his convictions and sentence, alleging six assignments of error. He briefed only three of the six assignments of error. We consider abandoned those assignments not briefed. Uniform Rules — Courts of Appeal, Rule 2-12.-4.

Some time between the hours of 6:00 p.m. and 7:30 a.m., on the night of October 19, 1981, Olivier Chevrolet Company, located on Highway 90, east of Morgan City, Louisiana, was burglarized. Several items were stolen, including a 40-channel citizens band radio, a computer system valued at over $3500.00, an unsold 1981 black Caprice Classic automobile, valued at $12,000.00, and a recently sold 1981 maroon Chevrolet Corvette, valued at $19,500.00. The last two items were reported missing by Olivier Chevrolet after Detective James R. Bazet of the Morgan City Police Department had completed his initial investigation of the scene of the crime on the morning of October 20.

The St. Mary Parish Sheriffs Department later recovered the black Caprice found abandoned six or seven miles east of Morgan City near the Brown & Root industrial plant and returned it to Olivier Chevrolet. Detective Bazet entered a description and the license plate number of the Corvette on the National Crime Information Computer (NCIC), a national network of computers used by state and local police departments for speedy identification and discovery of stolen goods possibly moving across state lines.

On October 21, Florida Highway Patrol Trooper Joe Tucker received a radio BOLO (be on the lookout) for a car matching the description of the missing Corvette. On routine patrol that day, he spotted the car on the highway near Milton, Florida, a little town 20 to 25 miles north of Pensacola. He followed the car to a truck stop where the driver and the passenger, upon request, voluntarily identified themselves as Leonard Roundtree and Clay C. Freeman, the defendant. Upon confirming with headquarters that the car was listed on NCIC as stolen, he placed them under arrest and impounded the car.

The defendant waived extradiction proceedings in Florida and was subsequently escorted back to Morgan City by Detective Bazet for prosecution. Olivier Chevrolet eventually recovered all of the stolen items.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant contends that the trial judge erred in overruling his motion in arrest of judgment. He argues that the rendered verdict is ambiguous and “patently defective” and cannot form the basis of a valid judgment.

After charging the jury on the law applicable to felony theft and simple burglary, the trial judge gave the jury, in accordance with LSA-C.Cr.P. art. 809, a written list of verdicts responsive to the charges of theft and simple burglary. The responsive verdicts for the charge of theft were written as follows:

1. — Guilty of Theft of Property of a Value of
(a) Over $500, or
(b) Between $100 and $500, or
(c) Less than $100.
2. — Guilty of Attempted Theft of a Value of
(a) Over $500, or
(b) Between $100 and $500, or
(c) Less than $100.
3. — Guilty of Unauthorized Use of a Movable.
4. — Not Guilty.

After the jury deliberated and reached agreement on the verdict, the foreman wrote on the back of the responsive list in the blank provided for the charge of theft “Guilty of Theft of Property of a Value of Over $500.00, or.” In the blank provided for the charge of simple burglary, he wrote, “Guilty of Simple Burglary.” He then signed his name, and delivered the verdict to the judge in open court in accordance with LSA-C.Cr.P. art. 810.

Defense counsel objected to the form of the verdict and subsequently filed a written motion in arrest of judgment on the ground that the inclusion of the disjunctive “or” indicates an alternative verdict of guilty on one or the other of the charges but not on both. He argues that this alleged ambiguity in the defendant’s conviction renders the verdict illegal under LSA-C.Cr.P. art. 859.

Under art. 810, there is no formal requirement regarding the language of the verdict except that it clearly convey the intention of the jury. If a verdict is ambiguous, a court may refer to the pleadings, evidence, admissions of the parties, the instructions given by the trial judge, or the form of the verdict submitted to determine the jury’s intent. State v. Vincent, 387 So.2d 1097 (La.1980); accord, State v. Williams, 386 So.2d 1342 (La.1980).

The bill of information clearly charges the defendant with two distinct crimes. The state prosecuted the defendant on both crimes and presented evidence of both crimes to the jury. In his charge, the trial judge correctly explained to the jury that they must find the defendant guilty or innocent of both crimes, that is, that they should evaluate the evidence as it relates to each charge and return a verdict of guilt or innocence on each charge or on some lesser included offense of each charge. Accordingly, he instructed them that they could find the defendant guilty of both crimes, not guilty of both crimes, or guilty of one crime but not guilty of the other and vice versa. We do not think this instruction created any confusion in the minds of the jury members as to what the possible verdicts were or led them to believe they could render an “alternative” verdict of guilty of either crime.

In denying the defendant’s motion, the trial judge said that the foreman simply filled in the blank provided for the charge of theft with a verbatim copy of the responsive lists given. Because each responsive verdict included the word “or,” the foreman included it also. We think that this is a correct and accurate explanation of the verdict. The jury clearly intended to find the defendant guilty of both crimes, and its verdict should not be overturned because an arguably ambiguous and inartful expression frames it. See State v. Cole, 158 La. 799, 104 So. 720 (1925).

ASSIGNMENT OF ERROR NO. 4

In this assignment, defendant contends that the trial court erroneously allowed the introduction into evidence of xeroxed copies of defendant’s fingerprints at the habitual offender hearing. He argues that the copies are not the best evidence available and that their introduction violated the defendant’s “right to due process under the Sixth Amendment right to confrontation and under Article 1 Section 2 of the Louisiana State Constitution.”

At the opening of the habitual offender hearing, before calling either of its expert witnesses, the State introduced in globo certified copies of the defendant’s prison record, on file with the Louisiana Department of Corrections, which included a certified copy of an Orleans Parish bill of information dated July 18, 1980. On this bill of information were two thumbprints alleged to be those of the defendant. At the time of the introduction of these documents, the defense counsel made no objection.

The State then called Police Chiefs Alcide Gros and David Naquin, accepted by the trial judge without objection as experts in fingerprint identification. Each had previously conducted a comparative analysis of the defendant’s fingerprints, and each positively testified at the hearing that the fingerprints on the copy of the bill of information matched those of the defendant. On the basis of this testimony, the trial court found defendant to be a multiple felony offender and sentenced him to the maximum penalty for both crimes.

Defense counsel waited until after the State had rested and the trial judge had imposed sentence before raising any objection to the introduction of the documents.

A party must object to an irregularity or error at the time of the occurrence of the error, or within a reasonable time of discovery of the error, and state the reason for his objection in order to allow the trial judge the opportunity to rule on it and prevent or cure the error. LSA-C.Cr.P. art. 841; State v. Herrod, 412 So.2d 564 (La.1982). A party is not allowed to delay his objection in the hope of a favorable decision on the merits and later complain about the alleged previous error when events turn out badly.

In the present case, defense counsel waited until the sentence had been imposed at the close of the hearing, well after the trial judge had a reasonable opportunity to rule on it, before raising any objection to the documentary evidence. Under these circumstances, the objection came too late. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that his sentences are excessive, and that the trial judge did not state the factual basis necessary to support the imposition of a maximum sentence, or consider any mitigating factors, as required by LSA-C.Cr.P. art. 894.1.

Article 1, sec. 20 of the Louisiana Constitution prohibits the imposition of excessive sentences. A sentence may be excessive even though it falls within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is excessive when it is grossly out of proportion to the severity of the offense, or when it makes no measureable contribution to the acceptable goals of punishment and it is nothing more than the needless and purposeless imposition of pain and suffering. State v. Finley, 432 So.2d 243 (La.1983). Moreover, maximum sentences are appropriately imposed only for the most serious violation of the described offense, and for the worse kind of offender. State v. Lang, 430 So.2d 1239 (La.App. 1st Cir.1983).

Under art. 894.1, the trial judge should consider three basic factors before imposing a prison sentence: (1) that there is an undue risk that the defendant will commit another crime during the period of suspension or probation, (2) that the defendant is in need of services of a custodial environment provided most effectively by a commitment to an institution, and (3) that a lesser sentence would deprecate the seriousness of the crime. The trial judge should also consider and accord some weight, though he need not state them all for the record, other factors such as the defendant’s prior criminal record, the seriousness of the offense, the defendant’s personal history and his potential for rehabilitation. See State v. Knox, 425 So.2d 707 (La.1982); State v. Lang, 430 So.2d 1239 (La.App. 1st Cir.1983). Finally, the trial judge must state for the record the considerations taken into account and the factual basis supporting his sentencing choice.

The record discloses that the trial judge considered and based the sentence on the following facts: The defendant is 36 years old, divorced and is the father of two children. He has a high school education. He also has a prior felony conviction for the crime of receiving stolen things, and was sentenced to serve time for that offense on July 18, 1980. He previously served time at a state prison at Angola, Oklahoma, and has a rap sheet “that goes back on and on and on

The trial judge specifically found “nothing redeeming” in the defendant’s “civilian or criminal life that would warrant anything less than the maximum sentence.” He said there was not simply an undue risk but a “dead certainty” that the defendant would commit another crime if suspended. He described the crimes for which defendant was convicted as planned and “well thought out” with the intent of removing the property from Louisiana for disposal in another state.

In light of these facts, the trial judge fully complied with the requirements of art. 894.1 and did not abuse his sentencing discretion in imposing the maximum sentence. The conviction for felony theft carries with it a maximum prison term of 12 years at hard labor; for simple burglary, a term of ten years at hard labor. Under the habitual offender law, a conviction for a second felony offense may be punished by a prison term no greater than twice the maximum term prescribed for the first conviction. LSA-R.S. 15:529.1(A)(1).

Under these facts and the law applicable to them, the sentence imposed is not excessive. This assignment is without merit.

For the foregoing reasons, the defendant’s convictions and sentence are affirmed.

AFFIRMED.

       The list of responsive verdicts to the theft charge given to the jury is technically incorrect. The correct list of responsive verdicts, applicable before article 814 was amended by 1982 Acts, No. 763, sec. 1, reads as follows:
      23. Theft:
      Guilty of theft of property of_dollars in value.
      Guilty of attempted theft of property of_ dollars in value.
      Guilty of unauthorized use of movables.
      Not guilty.
      However, because the jury returned a verdict of guilty of the crime charged, no prejudice resulted to the defendant. See State v. Prestridge, 399 So.2d 564, 578 (La.1981) {held, erroneous charge is not prejudicial when jury returns guilty verdict of crime charged).


text:
    STATE of Louisiana v. Susan HIATT.
    No. 83 KA 0512.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., Baton Rouge, by Joseph Lotwick and Glen Petersen, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald Causey, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Susan Hiatt, was charged by bill of information on October 26,1981 with distribution of diazepam, a violation of La. R.S. 40:969(A). Defendant pled not guilty. On the date set for trial, she asked that the court allow her to change her plea to guilty. After a Boykin examination, the trial court ruled the plea was made voluntarily and accepted the guilty plea. Before sentencing, defense counsel filed a motion to vacate the guilty plea and to enter a plea of not guilty. Defendant also filed a motion in the alternative to be sentenced as a first offender. Both motions were denied. After a hearing, the defendant was sentenced to one year imprisonment at hard labor. She appeals her conviction and sentence, alleging four assignments of error.

ASSIGNMENTS OF ERROR NUMBERS 1, 2, 3, AND 4

Defendant contends that the trial court erred in not sentencing her to a suspended sentence and unsupervised probation. She argues that the trial judge should not have relied on the pre-sentence report which contained hearsay statements of defendant’s prior felony conviction in the state of Georgia. She also argues that the trial court erred in not allowing her to withdraw her guilty plea since she pled guilty under the good faith belief that she did not have a prior felony conviction and would be eligible for a suspended sentence as a first offender.

It is well established that when the trial court relies on pre-sentence information which is materially false or invalid, a defendant must be given an opportunity to refute or explain such misinformation. State v. Lockwood, 399 So.2d 190 (La.1981). The sentencing judge here expressly relied on the information in the pre-sentence report, as he stated that probation would be the preferred sentence but for her prior conviction.

The pre-sentence investigation report ordered by the trial court indicated that defendant was a second offender, as she had a prior felony conviction in Georgia. Under La.Code Crim.P. Art. 893, she would not be eligible for a suspended sentence. Defendant contends she had no prior convictions. At the Boykin examination conducted before the acceptance of her guilty plea, she denied any prior convictions. Furthermore at the hearing on the motion to vacate the guilty plea, defense counsel introduced evidence to rebut the pre-sen-tence investigation report. Defense counsel introduced two letters from the Cobb County Clerk of Superior Court in Georgia. The first, dated September 7, 1982, stated Ms. Hiatt did not have a felony record in that court. The letter dated September 21, 1982, stated Ms. Hiatt was formally adjudicated not guilty on January 4, 1977. The state never objected to the introduction of these letters.

We conclude that the evidence introduced by defendant rebuts the pre-sentence investigation report’s conclusion that she is a second offender. The report states that Susan Hiatt claims to have received an automatic first offender pardon on her Georgia conviction. The only other evidence indicating a prior conviction is the FBI rap sheet attached to the pre-sentence investigation which lists a Georgia felony conviction and probation. The court could rely on this information, even though hearsay, in sentencing defendant. Pre-sentence reports by their nature contain hearsay. See State v. Hamilton, 312 So.2d 656 (La.1975).

Nevertheless, while no full-scale evidentiary trial is required at the sentencing hearing and the state is not required to prove the prior conviction beyond a reasonable doubt, the state should have presented some evidence to explain defendant’s rebuttal of the report. See State v. Trahan, 367 So.2d 752 (La.1979). The state merely argued that the judge should rely on the report despite the letters introduced by defendant. The state contended that defendant’s record was expunged in compliance with Georgia law after completion of her probationary period. No proof of this contention was offered by the state, nor was any other proof of her supposed conviction. Therefore, defendant’s sentence will be vacated and this case remanded for sentencing of defendant as a first offender.

Having found merit in defendant’s argument that she should have been sentenced as a first offender, her alternative argument relative to withdrawal of her guilty plea is rendered moot.

Therefore, for the above and foregoing reasons, defendant’s conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing.

AFFIRMED IN PART AND REMANDED.


text:
    STATE of Louisiana v. Andrew KING. (Two cases) STATE of Louisiana v. Andrew KING.
    Nos. 83 KA 0513, 83 KA 0514.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.
    Ossie B. Brown, Dist. Atty., by Brett Grayson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Walter Dumas, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Andrew King, was charged by bill of information with armed robbery occurring on June 15, 1979, in violation of La.R.S. 14:64. Defendant plead not guilty and waived trial by jury. After a judge trial, he was found guilty as charged. He was adjudged a second offender at a habitual offender hearing. Defendant was sentenced to thirty-three (33) years at hard labor without benefit of probation, parole or suspension of sentence. He appeals his conviction and sentence, alleging four assignments of error. Assignment of error number 2 was not briefed and is therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

About 11:00 p.m. on June 15, 1979, the cashier at the Stop and Go Store on Wood-dale Boulevard in Baton Rouge was closing the store when two males entered wanting to buy beer. When she told them she was closed, one man pulled a gun on the woman and grabbed the cash out of the register.

At the time of the robbery, an eye witness was using the pay telephone located on the outside of the Stop and Go Store. At trial he testified he saw the two men walk from around the side of the building and then enter the store. A few minutes later, one of the assailants exited the store and started walking toward the witness. When the witness gestured as if to say, “Do you want to use the phone? ”, the assailant, who the witness later identified as Andrew King, turned and joined the other robber who in the meantime had also exited the store. The two robbers then fled around the same end of the store from which they came. Seconds later, the cashier, noticeably upset, came out of the store yelling that she had been robbed. The witness who was using the telephone identified King at a picture lineup and at trial as one of the men he saw that evening. The victim also positively identified the defendant at a live lineup conducted a few weeks after the robbery. At trial, she again identified defendant as one of the robbers.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred in not suppressing the live lineup identification of him by the robbery victim. He claims this lineup was suggestive in that the officer handling the lineup (Officer Doughty) nodded in a negative manner when asked by the victim if the man holding number three was the robber.

A defendant attempting to suppress an identification must prove two things: (1) that the identification was “suggestive”, and (2) that there was a likelihood of mis-identification in the identification procedure. State v. Chaney, 423 So.2d 1092 (La.1982).

At the hearing on the motion to suppress, the State and defendant stipulated to the testimony of Kenneth Hall and Donald Stevenson, two of the men who participated in the lineup with King. Stephenson’s testimony would have been that he was number three in the lineup and that Officer Doughty shook his head and said no when the victim asked if he was the robber. Hall would have testified that he saw the officer shaking his head in a negative manner, although he did not hear the conversation.

The victim testified that there was no suggestion made to her regarding which man to choose. She did identify King, who was holding number one, as one of the men who robbed her. Also, she indicated number three was familiar because he often came into the store where she previously worked.

Officer Doughty stated the victim started to ask a question regarding one of the men. He said he raised his hands to his side and said he could not answer any questions at that time. He did not recall nodding his head in a negative manner.

Furthermore, defendant’s own testimony corroborates that of the police officer. King stated he could not hear the conversation between the officer and the victim and the only thing he observed was the officer moving his hands.

Considering all the testimony, we conclude that the trial judge was correct in finding that the lineup was not suggestive and that defendant’s rights were not violated. Furthermore, after applying the Manson analysis, and the five factors to be weighed in determining reliability of an identification, we conclude this out-of-court identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, 353 So.2d 1005 (La.1977). This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends the trial court erred in permitting the State to ask leading questions of its own witness on direct examination. At trial, the State called Phillip King, defendant's father, as a witness. The State questioned Mr. King about the events of June 15 and 16, 1979. Phillip King stated that his family, including the defendant who lived with him, attended a wedding in New Orleans on Saturday, June 16. When asked if defendant went anywhere the Friday night before, Mr. King answered no. At this point, the State pleaded surprise and, in an attempt to impeach the witness, requested permission to ask leading questions. The trial court permitted the State to lead the witness.

No one can impeach his own witness, unless he has been taken by surprise by the testimony of such witness, or unless the witness shows hostility toward him, and, even then, the'impeachment must be limited to evidence of prior contradictory statements. La.R.S. 15:487. In this case, the assistant district attorney was attempting to impeach Mr. King, the State’s own witness, by showing he made a prior inconsistent statement to police about defendant’s activity on the night of the robbery.

By repudiating his earlier statement to police, Phillip King testified upon a material matter against the party introducing him and in favor of the other side. La.R.S. 15:488. State v. Brown, 414 So.2d 689 (La.1982). Thus, the prosecution could properly plead surprise and impeach its own witness through prior contradictory statements.

Furthermore, Louisiana law is clear that a party may not ask leading questions of his own witness unless the witness is unwilling or exhibits hostility to the party calling him. La.R.S. 15:277; State v. Fulmer, 263 La. 971, 270 So.2d 116 (La.1972). In this case, the record demonstrates that Phillip King was an unwilling witness. Thus, the trial court did not err in allowing the prosecution to ask leading questions of his own witness. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends that there was insufficient evidence to justify the guilty verdict returned by the trial judge. Despite the absence of a motion for an acquittal or a motion for a new trial, we will consider the evidence to determine whether it meets constitutional standards. State v. Woods, 435 So.2d 1137 (La.App. 1st Cir.1983). After reviewing the record and evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In this case, the defendant was charged and convicted of armed robbery, La.R.S. 14:64, which is defined in part as follows:

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

The record clearly indicates that the State proved every essential element of the crime of armed robbery. The factual circumstances of this case unequivocally demonstrate that the defendant and a companion entered the Stop and Go armed with a gun, pointed the gun at the victim and then stole a certain amount of money from the cash register controlled by the Stop and Go employee. Thus, the elements of the crime were proven at trial. There is no merit to this assignment.

Having found no merit to any of the defendant’s assignments of error, we affirm the defendant’s conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Gary MOORE.
    No. 83 KA 0575.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.

      Ossie B. Brown, Dist. Atty. by Thomas Damico, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    John Cornish, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Gary Moore, was charged by grand jury indictment with having committed the crime of forcible rape in violation of LSA-R.S. 14:42.1. Defendant pled not guilty and waived jury trial. After trial by a judge alone, defendant was found guilty of sexual battery in violation of LSA-R.S. 14:43.1 and sentenced to nine and one-half (9V2) years at hard labor with credit for time served in custody on this charge from arrest to date of sentence. Defendant now appeals his conviction alleging five assignments of error and briefing one. In defendant’s only assignment of error properly presented to this court, he alleges that the trial court erred when it denied defense counsel’s motion for a directed verdict (judgment of acquittal) on the charge of forcible rape. Since defendant has neither briefed nor argued the other assignments, we will consider them as abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.

About 11:00 p.m. on December 2, 1980, defendant, his brother and another black male, picked up the 14 year old female victim and her two male companions who had asked for a ride to the home of one of the males. Instead, they all went for a ride into the neighboring areas. During this ride, defendant produced a gun. There was some argument among the males and at one point defendant ordered one of the male friends to leave the car and walk down the road. However, that argument resolved itself and after all persons returned to the car, the occupants resumed cruising the area. At some point, defendant’s brother obtained control of the gun. Later, defendant’s brother stopped the car again, held the gun on the two companions of the victim and told them to run away and not turn around or he would shoot them. Defendant’s brother then got in the back of the car, held the gun on the victim and told her to shut up or he was going to shoot her. Defendant was then sitting in the passenger seat in the front; the third of the original three males was driving the car. After driving to a city-parish park, defendant’s brother made everyone get out of the car. Allegedly, defendant put his arms around the victim and tried to comfort her while attempting to talk his brother into not hurting the victim. The record indicates that defendant’s brother had been talking about having sex with the young lady. Defendant told the remaining companion to run and get the police. The male friend took off into the bushes. After running zig-zag until he reached the car, the friend jumped in and drove away.

At this point, defendant’s brother, still holding the gun, told defendant and the victim to go into an area covered by trees. Defendant continued to try to comfort the victim. The brother then instructed defendant to have sex with the victim. The victim resisted as much as she could; however, defendant laid on top of her and tried to pull open her legs, telling the victim not to worry, that he was not going to have sex with her. Defendant’s brother then told defendant to get up, gave the gun to defendant and proceeded to rape the victim without the victim’s consent, while defendant stood by and watched. While defendant was holding the gun, he allegedly continued to exalt his brother not to harm the victim.

The testimony reflects that the defendant would occasionally walk away from the rape scene only to return later and watch his brother have sex with the victim. The victim testified that she was fearful of defendant and also that defendant’s brother said he would kill her if she did not do what he wanted. She stressed that at no time did she consent to have sex with either defendant or his brother. When asked at trial whether defendant had accomplished penetration when attempting sex with her, she was not really sure. At one point, she said yes, penetration was accomplished, at another point she was not sure. The defendant did not take the stand at trial; however, after he was arrested he made a statement to police in which he denied having sex with the victim. The clothes defendant was wearing at the time of the alleged rape were tested for seminal stains. The shirt resulted in positive stains although the lab technician testified that she could not say when the seminal fluid was deposited on the shirt, that it could have been possibly a week prior to the date of testing. Defendant’s pants and khaki shorts tested in the negative. Following the alleged rape, the brothers left the scene and the victim walked a great distance back to her friend’s grandmother’s house. One of the male companions who had been with them earlier in the evening was there and told her he had already called the police who arrested defendant and his brother later that morning.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred when it denied defense counsel’s motion for acquittal. Defendant argues that the prosecutor failed to prove that defendant either forced (or threatened) the victim to participate in the sexual encounter, an essential element of the crime of forcible rape. In the alternative, defendant argues that he was compelled to commit a sexual act upon the victim and, therefore, was justified in his actions.

LSA-C.Cr.P. art. 778 reads in pertinent part as follows:

In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of the defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.

When considering the sufficiency of the evidence raised by a motion for judgment of acquittal, the standard of review is whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 431 So.2d 106 (La.App. 1st Cir.1983).

LSA-R.S. 14:18, entitled “Justification; general provisions”, provides in pertinent part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defensé to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed. ..

The defense of compulsion must be proved by defendant by a preponderance of the evidence. State In Interest of White, 411 So.2d 537 (La.App. 1st Cir.1982). Additionally, the trier of fact has the discretion to return a verdict of guilty of certain lesser offenses, less serious than the one charged in motive and in penalty. LSA-C.Cr.P. 820; State v. Madison, 319 So.2d 912 (La.1975). Sexual battery is a responsive verdict to forcible rape. LSA-C.Cr.P. 814(A)(10).

The record reveals that defendant filed his motion for judgment of acquittal after the state rested its case in chief. The court denied the motion. Defendant offered no evidence in his behalf and after closing arguments, the trial judge rendered his verdict of guilty of sexual battery.

Defendant was initially charged with and tried for forcible rape. The elements of the offense of forcible rape are: 1) the act of anal or vaginal sexual intercourse; 2) with a male or female person who is not the spouse of the offender; 3) without lawful consent of the victim; 4) committed because the victim is prevented from resisting the act by force or threats of physical violence and circumstances where the victim reasonably believes such resistance would not prevent the rape; 5) emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the rape. LSA-R.S. 14:42.1, 14:41.

Under the facts of this case, considering the testimony and evidence offered at trial, we find sufficient evidence was presented by the state to find that the state produced some evidence of the crime or the essential elements thereof; therefore, we find no abuse of discretion on the part of the trial judge in denying defendant’s motion for judgment of acquittal. See, e.g., State v. Hill, 431 So.2d 871 (La.App. 2nd Cir.1983). More specifically, viewing the evidence in the light of defendant’s conviction of sexual battery, we find that any rational trier of fact could conclude that the state had proven beyond a reasonable doubt all the elements of the crime of sexual battery, and, further, reviewing the sufficiency of circumstantial evidence offered at trial under the standards set forth in LSA-R.S. 15:438, we find that such circumstantial evidence excludes all reasonable hypothesis of defendant’s innocence in the commission of the crime of sexual battery.

As to the argument that defendant was forced by his brother to commit a sexual act upon the young victim and was therefore justified in committing such act, we note the victim’s testimony that defendant’s brother, although in command of the gun, did not at any time during the incident point the gun at defendant, nor did defendant refuse to follow his brother’s request to have sex with the victim. Additionally, defendant later held the gun while his brother raped the victim. The preponderance of the evidence at trial substantiates the trial judge’s finding that justification was not a defense available to defendant under the facts of this case; and, therefore, we find no abuse of discretion on the part of the trial judge.

The state argues that defendant was a principal to the crime of rape committed by his brother Daniel. Even if we do so find, the court in State v. McAllister, 366 So.2d 1340 (La.1978) held that one who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at the trial. Herein, defendant was found guilty of a lower degree of crime. We find no error in this verdict.

Having found no merit to the single assignment of error presented to this court, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . LSA-R.S. 14:42.1. Forcible rape
      Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

      . LSA-R.S. 14:41. Rape; defined
      Rape is the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person's lawful consent.
      Emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.
      For the purposes of this Chapter, a person shall not be considered to be a spouse if a judgment of separation from bed and board has been rendered.

      . LSA-R.S. 15:438. Circumstantial evidence
      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.

      . LSA-R.S. 14:24. Principals
      All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Morris HARRIS.
    No. 83 KA 0613.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Ossie B. Brown, Dist. Atty., Jeff Holl-ingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Jeffrey Calmes, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Morris Harris, was charged in a bill of information with possession of pentazocine in violation of La. R.S. 40:967(C) and illegal possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. Harris filed a motion to suppress evidence seized at his residence pursuant to a search warrant. The trial judge denied this motion. Harris pled not guilty to both offenses and waived his right to a trial by jury. Counsel for the state and Harris stipulated that the matter would be submitted to the trial judge on the evidence produced at the preliminary examination. The trial judge found Harris guilty as charged. Harris was sentenced to be imprisoned at hard labor in the custody of the Louisiana Department of Corrections for a term of six years on each offense, with credit for time served. These sentences were ordered to run concurrently with each other and concurrently with any other sentence being served by Harris.

FACTS

Prior to September 10, 1982, the operators of “Living Environment” reported to the East Baton Rouge Parish Sheriff’s Office that one of their company vehicles was burglarized while parked at the Centroplex in Baton Rouge, Louisiana, and that approximately 200 blank checks in the name of “Living Environment” had been taken. Also prior to September 10, 1982, the forgery section of the East Baton Rouge Parish Sheriffs Office determined that an individual named Ray Carrell successfully cashed two forged “Living Environment” checks in East Baton Rouge Parish.

On September 9, 1982, Lieutenant Michel C. Fourrier of the East Baton Rouge Parish Sheriff’s Office was contacted by a confidential informant who advised that he (or she) was present in a residence located at 1017 East Polk Street, Baton Rouge, Louisiana, on September 9, 1982, and observed a large quantity of bank checks in the name of “Living Environment”. The informant further advised that the occupant of the premises, Ray Carrell, was in the process of forging the checks in preparation for cashing them. The informant had worked with Fourrier for the past three years and had provided information that led to the arrest and conviction of at least six individuals and to the seizure of contraband and controlled dangerous substances in East Baton Rouge Parish.

Armed with the above information, Four-rier secured a search warrant from a district judge at approximately 10:30 a.m. on September 10, 1982. The search warrant was executed by Corporal Richard Sullivan of the East Baton Rouge Parish Sheriff’s Office and several other officers at 11:20 a.m. on September 10, 1982. At the time that this search warrant was executed, the only person present on the premises of 1017 East Polk Street was Morris Harris. The police officers conducting the search seized twenty-three sets of pentazocine (also referred to as “talwin” and “T’s and blues”), a stolen checkwriter, a .45 caliber revolver, a .38 caliber pistol and a .22 caliber rifle. The .45 caliber revolver and the .22 caliber rifle had the serial numbers removed. Morris Harris was placed under arrest when these items were discovered.

SEARCH AND SEIZURE

The search warrant authorized the search of the residence located at 1017 East Polk Street, Baton Rouge, Louisiana, for bank checks in the name of “Living Environment”. Harris contends that the trial court should have granted his motion to suppress the evidence seized at the residence because the search warrant did not describe the place to be searched with sufficient particularity. Specifically, he asserts that the residence searched was actually a rooming house and not a single family dwelling and that his room constituted a separate “sub-unit” or “apartment” which required a particular description in the search warrant.

No search warrant shall issue unless based on probable cause, supported by oath or affirmation and particularly describing the place to be searched. U.S. Const. amend. IV; La. Const. of 1974, art. I, § 5; La.C.Cr.P. art. 162. The object of the particularity requirement is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable probability that the police will not search the wrong premises, the description is sufficient. State v. Brown, 412 So.2d 1064 (La.1982); State v. Manzella, 392 So.2d 403 (La.1980); State v. Cobbs, 350 So.2d 168 (La.1977). Since this is a search conducted pursuant to a warrant, the burden of proof is on Harris to prove the grounds of his motion. La.C.Cr.P. art. 703(D).

Lieutenant Fourrier testified that the informant told him that the premises at 1017 East Polk Street was a “regular house” that was used to “make some money by renting separate portions of it”, but it was not being rented and was under one occupancy. Corporal Sullivan testified at the motion to suppress that when the officers entered the residence they observed numerous doors and held off entering into any rooms. The officers then discussed whether or not the house was built for multiple occupancy and whether or not the search warrant had to be reissued to be more specific. The officers then met Harris who advised them that he was solely responsible for the residence, that his father was in the hospital and that there were no other tenants in the building at that time. Sullivan determined that Harris was staying in west bedroom number 1. At the preliminary examination, Corporal Sullivan testified that the east portion of the residence was occupied by Samuel Harris, Morris Harris’ father, and that'the remainder of the residence was unoccupied except for Morris Harris’ room.

The only witness called to support Harris’ contention that the residence was a multiple occupancy building at the time of the search was the defendant’s brother, Joe Harris. He testified that the residence belonged to his father, that he had power of attorney over it since 1976 and that the residence had always been a rooming house. Joe Harris was responsible for collecting the rent, paying the taxes and maintaining the building. He produced rent receipts showing rental payments from June 1, 1980, to August 1, 1982. No receipts were offered to show rental payments made at the time the search was conducted. Joe Harris further testified that he thought a person was renting a room on the day of the search. He further indicated that Morris Harris occupied two rooms at the residence searched and also lived next door at their mother’s house when the electricity was turned off. Joe Harris did not know where Morris Harris was living on the day of the search.

When there is conflicting testimony on a factual matter, the credibility of witnesses is at issue and such a factual determination is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. Cobbs, 350 So.2d at 172. It is implicit in the trial judge’s ruling that he accepted the testimony of Fourrier and Sullivan and did not place any weight on that of Joe Harris. We have carefully reviewed the record and find that the trial judge's ruling is not clearly contrary to the evidence.

The informant indicated that the stolen checks were located in the residence but not in a specific place therein. Harris admitted to the police officers that there were no other occupants of the residence and that he was responsible for the premises. The police officers found the drugs in Morris Harris’ room, the stolen checkwriter in unoccupied west bedroom number 2 and the firearms in the portion of the building used by Samuel Harris. Under all of these circumstances, the search warrant adequately described the place to be searched with sufficient particularity to prevent the search of the wrong premises. The ruling of the trial court on the motion to suppress is correct. State v. Hymer, 400 So.2d 637 (La.1981).

This assignment of error is without merit.

ADEQUACY OF EVIDENCE TO CONVICT FOR ILLEGAL POSSESSION OF FIREARM BY CONVICTED FELON

Harris contends that there is insufficient evidence to support his conviction of possession of a firearm by a convicted felon. In particular, he claims that the State has failed to prove that he was a convicted felon.

The state alleges in the bill of information that on September 10, 1982, in the Parish of East Baton Rouge, State of Louisiana, Morris Harris “having been convicted of simple burglary, a felony, on or about May 11, 1972, in the 19th Judicial District Court, possessed a firearm, to wit: a .45 caliber pistol, a .38 caliber pistol and a .22 caliber rifle... ”. La.C.Cr.P. art. 483.

La.R.S. 14:95.1 provides in pertinent part as follows:

A. It is unlawful for any person who has been convicted of ... simple burglary ... to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.[]
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.

The elements of the offense as charged in this case are: (1) on September 10, 1982, Morris Harris, in the Parish of - East Baton Rouge, State of Louisiana; (2) had possession of the specified firearms; (3) the possession was with the requisite general criminal intent; (4) Morris Harris had been convicted of simple burglary on or about May 11, 1972, in the 19th Judicial District Court; and (5) ten years had not elapsed since the completion of the sentence for the prior conviction. State v. Husband, 437 So.2d 269 (La.1983); State v. Cobb, 419 So.2d 1237 (La.1982); State v. Mose, 412 So.2d 584 (La.1982).

The parties stipulated that the testimony given at the preliminary examination would be the evidence at the trial of the case. The following testimony of Corporal Sullivan is the only evidence given at the preliminary examination on Harris’ pri- or felony conviction:

Q Were you able to ascertain whether or not Morris Harris was a convicted felon?
A Yes, sir; I was.
Q And, do you remember what Mr. Harris had been convicted of as to whether or not he would fit under the provision of a felon in possession of a firearm?
A I believe it was — uh—aggravated burglary. I’d have to refer to the rapsheet to be specific. But, he did fit under the category.

This testimony is hearsay evidence. Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Tonubbee, 420 So.2d 126 (La.1982); State v. Martin, 356 So.2d 1370 (La.1978). Hearsay evidence is inadmissible except as provided by law. La.R.S. 15:434. A witness can testify only as to facts within his knowledge and may not recite facts heard by him except as provided by law. La.R.S. 15:463. An exception to these rules is that hearsay testimony is admissible at a preliminary examination. State v. Antoine, 344 So.2d 666 (La.1977). Harris did not object to this testimony at the preliminary examination or at the time it was agreed that this evidence would be used in lieu of a trial. Hearsay evidence not objected to constitutes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive powers that it might have. State v. Clark, 387 So.2d 1124 (La.1980); State v. Boutte, 384 So.2d 773 (La.1980); State v. Small, 427 So.2d 1254 (La.App. 2nd Cir.1983).

A plea of not guilty places upon the state the burden of proving beyond a reasonable doubt each element of the crime charged. La.R.S. 15:271; La.C.Cr.P. art. 804(A)(1); State v. Humphrey, 412 So.2d 507 (La.1981); State v. Gomez, 433 So.2d 230 (La.App. 1st Cir.1983), writ denied 440 So.2d 730 (La.1983). Part of the state's proof is that Morris Harris was convicted of simple burglary in the Nineteenth Judicial District Court on or about May 11, 1972, and that ten years has not elapsed since the completion of that sentence. Although the evidence may be construed to show that Harris had a prior felony conviction, there is no evidence of record to prove the specific offense for which he was convicted, the date of the conviction, the court where the conviction occurred or that less than ten years had elapsed since the sentence terminated. The record does not reflect why the state did not introduce the documentary evidence usually used to prove these elements of the offense. Where the state has produced no evidence of an essential element of a crime charged, the defendant is entitled as a matter of law to a judgment discharging him. State v. Peoples, 383 So.2d 1006 (La.1980); State v. Davis, 371 So.2d 788 (La.1979); State v. Thompson, 366 So.2d 1291 (La.1978).

The defendant’s conviction and sentence for illegal possession of a firearm by a convicted felon are reversed, and the defendant is ordered discharged on this charge.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence for possession of pentazocine are affirmed and his conviction and sentence for illegal possession of a firearm by a convicted felon are reversed.

AFFIRMED IN PART AND REVERSED IN PART.

      . In determining whether the ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the hearing on the motion but may also consider pertinent evidence given at the trial (in this case the transcript of the preliminary examination). Cf. State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Beals, 410 So.2d 745 (La. 1982); State v. Chopin, 372 So.2d 1222 (La.1979).

      . The sentence imposed by the trial court for this offense is illegal because it did not provide that the imprisonment would be without benefit of probation, parole, or suspension and it did not impose the mandatory fine.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Marvin Lee SMITH.
    Nos. 83 KA 0614, 83 KA 0615.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty., Louis Daniel, Ralph Roy, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    Chester Boyd, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Marvin Lee Smith (defendant) and John Litt were charged by bill of information for attempted simple burglary of a structure housing Satellite Motors in Baton Rouge, in violation of La.R.S. 14:27 and La.R.S. 14:62. After a jury trial, they were found guilty as charged. Defendant was adjudged a third felony offender at a habitual offender hearing. He was sentenced to five years at hard labor, with credit for time served as a result of his arrest on this charge only, from arrest to bond date and from conviction or remand to imposition of sentence. He appeals his conviction and sentence, alleging two assignments of error.

At approximately 10:00 p.m. on August 10, 1981, William Broadhurst, a Baton Rouge city police officer, observed two males attempting to enter a building on the Satellite Motors used car lot located at 2300 Scenic Highway. Broadhurst testified that while driving by the lot he saw defendant with his hands on the front doorknob of a small building located within the fenced lot. Defendant was pushing on the door. He parked his unit and proceeded to the back of the building. There he saw defendant attempting to pry the casing off an air conditioning unit in a window of the building with some sort of tool. After backup police units arrived, Broadhurst yelled to the men to halt their activity. Defendant ran but was caught and arrested.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in denying his motion for mistrial. On the second day of trial, defense counsel argued that inculpatory statements had been offered on the first day of trial during Broad-hurst’s testimony and were admitted without prior notice as required under La.C. Cr.P. art. 768. He further argues that the State denied it possessed any inculpatory statements in its answers to his motion for discovery.

Initially, we note that no contemporaneous objections were made to any of the statements during the testimony of the police officer. Irregularities or errors cannot be availed of on appeal if they are not objected to at the time of occurrence. La. C.Cr.P. art. 841; State v. Morris, 429 So.2d 111 (La.1983); State v. Thomas, 427 So.2d 428 (La.1983).

The statement “you got me” came as part of a narrative response to the State’s questioning when Broadhurst said:

He attempted to climb the fence and as he approached it, police officers were on the other side, at which time Smith gave up. At that time I climbed over the fence. Smith said, you got me.

Defendant’s statement was part of the res gestae. La.R.S. arts. 15:447 and 448. Notice of an intent to offer an accused’s inculpatory statement under La.C. Cr.P. art. 768 is not required when the statement sought to be admitted forms part of the res gestae. State v. Barnes, 414 So.2d 711 (La.1982).

With respect to the statements regarding the car registration, we note that the defense introduced this evidence while Broadhurst was under cross-examination. The transcript shows the following dialogue between defense counsel and Broad-hurst:

Q Now, in Mr. Roy’s opening statement he talked about a car was found in the area. Did you find a car in the area?
A Yes, sir.
Q Whose car was that?
A Smith’s.
Q How do you know that?
A We ran a registration.
Q It was registered to Mr. Smith?
A As far as I remember, no, it wasn’t, but Smith told us it was his vehicle.
Q It wasn’t in his name but he told you it was his vehicle?
A Yes, sir.

Broadhurst’s answers were responsive to counsel’s questions. While the statements may have been obliquely inculpatory, the State did not offer these statements. So it was not necessary for the State to advise defendant in writing that it intended to use this statement. C.Cr.P. art. 768. See also State v. Russell, 416 So.2d 1283 (La.1982). Additionally, it was not required to inform defendant of the statement as per La.C.Cr.P. art. 716(B) because it did not intend to use the statement.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court erred in imposing an excessive sentence. Since defendant was adjudged a third felony offender, the sentencing range for this conviction was between three and twelve years. Wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits; in the absence of manifest abuse, his sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir.1983).

In light of the fact that defendant was adjudged a third felony offender, the trial judge’s reasons, and defendant’s past criminal history (which includes eighteen arrests since 1970 and a parole revocation), we find that there was no abuse of the discretion afforded the trial judge.

Both assignments of error are without merit. Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . On direct examination, Broadhurst stated that defendant said "you got me” when he was cornered by police. The second statement was made on cross-examination when Broadhurst stated that defendant said "you caught me” at the time of arrest. Later, while Broadhurst was under cross-examination, defense counsel asked if a car found in the area was registered to defendant. Broadhurst testified that the car was not registered to defendant but that defendant told him that it was his vehicle.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Raymon Lee HOUSE.
    Nos. 83 KA 0617, 83 KA 0618.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., Brenda Cres-well, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant appeals his conviction of attempted forcible rape.

Defendant, Raymon Lee House, was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. He pled not guilty and was then tried and convicted by a twelve person jury of attempted forcible rape in violation of La. R.S. 14:42.1 and La.R.S. 14:27. Defendant was then charged and admitted to being an habitual offender under La.R.S. 15:529.1. The trial court sentenced him to imprisonment at hard labor with the Department of Corrections for fifteen years. Defendant appeals claiming the sentence is excessive.

We affirm.

On June 11, 1982, in the early morning hours after a night of dancing and partying, the victim, her sister and a friend accepted a ride home with defendant. According to the victim, defendant stopped the car, and when she attempted to leave with the others, he attacked her. He first choked her and then raped her twice at gunpoint. Although her sister and friend tried to come to her aid, they eventually gave up attempts and ran to get help. After defendant raped her, the victim claimed that he brought her home. The crime was reported to the police, and the defendant was subsequently arrested, charged and convicted.

ASSIGNMENT OF ERROR NUMBER ONE:

Assignment of error number one was not briefed on appeal and is therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied (La.1983) (decided September 16, 1983).

ASSIGNMENT OF ERROR NUMBER TWO:

In assignment of error number two, defendant contends that the trial court erred in imposing an excessive sentence and in failing to follow the provisions of La.C.Cr.P. art. 894.1. More specifically, defendant claims that the trial court failed to state any mitigating factors in sentencing. The trial court is not required to enumerate each factor under article 894.1. State v. Grey, 408 So.2d 1239 (La.1982); State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983).

Given the reasons articulated by the trial court, we do not find an abuse of the trial court’s much discretion in sentencing. State v. Willis, 420 So.2d 962 (La.1982).

There is no merit to this assignment of error, therefore we affirm the judgment of the trial court.

AFFIRMED.

      . Defendant was previously convicted of three counts of simple burglary on January 7, 1982. He was given a three year suspended sentence and placed on supervised probation. He was still on probation when sentenced in this case.