author: CHEHARDY, Judge. GAUDIN, Judge,

text:
    Charles J. MALBROUGH v. Dr. R. Vaclav HAMSA and his insurer XYZ Insurance Company and Dr. John Schumacher and his insurer ABC Insurance Company.
    No. 84-CA-391.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Dissenting Opinion Jan. 9, 1985.
    Rehearing Denied Feb. 20, 1985.
    Writs Denied April 1,1985.

      Allan Berger and John A. Occhipinti, New Orleans, for plain tiff-appellee.
    Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot Paul B. Deal and Darryl J. Foster, New Orleans, for R. Vaclav Hamsa, M.D., defendant-appellant.
    Adams & Reese, Harold A. Thomas, New Orleans, for John F. Schumacher, M.D., defendant-appellant.
    Brough & Livaccari, Anthony J. Livac-cari, Jr., New Orleans, for Employers Fire Ins. Co., intervenor-appellee.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   CHEHARDY, Judge.

In this medical malpractice suit, liability and damages have been bifurcated. The case was tried on liability only and the district court found the defendant physicians to have been negligent in the surgery performed on the plaintiff. The defendants have appealed.

FACTS

Charles H. Malbrough underwent lumbar laminectomy surgery performed by Dr. John F. Schumacher, a neurosurgeon, and Dr. R. Vaclav Hamsa, an orthopedic surgeon, on July 14, 1977. The operation consisted of a decompressive laminectomy at L3-L4 and removal of a ruptured disc at L4-L5. The surgery was complicated by the presence of arachnoiditis (inflammation of the membrane surrounding the nerve roots), the result of scarring from 1968 surgery involving a partial hemilaminecto-my of L4 bilaterally and a partial hemilami-nectomy of L5 on the right with removal of the L4 disc bilaterally.

(We note we have taken the descriptions of both the 1968 and the 1977 operations from the surgeons’ operative reports. Both reports state the L4 disc was removed. Drs. Hamsa’s and Schumacher’s operative reports of the plaintiff state he had undergone a prior laminectomy at L5 and SI, which does not appear in the records of the 1968 surgery. These apparent discrepancies are not explained in the record.)

Following the operation, Mr. Malbrough began to have difficulty controlling his bowel and bladder functions, as well as sexual impotence and occasional weakness in his legs. Mr. Malbrough’s problems continued despite his follow-up visits to Dr. Hamsa for approximately six weeks post-surgery and to Dr. Schumacher for approximately ten months post-surgery. Eventually he sought treatment from other physicians, at which time he learned that his bowel, bladder and impotence problems are permanent and probably resulted from damage to the nerves during the 1977 operation.

ACTION OF THE TRIAL COURT

Mr. Malbrough filed suit against Drs. Schumacher and Hamsa on September 19, 1979. (At the time neither physician was a health care provider qualified for limitation of liability under LSA-R.S. 40:1299.41 et seq., the Medical Malpractice Act. Accordingly, plaintiff was not required to submit his claim to a medical review panel before filing suit.)

The district court found Drs. Schumacher and Hamsa liable for malpractice, assigning extensive written reasons. The court found that Drs. Hamsa and Schumacher failed to use reasonable care and skill during the operation or good judgment in the application of their skill and that plaintiff’s injuries were a proximate result of these failures. He concluded that excessive retraction of the nerve root and failure to do a wide lateral laminectomy were the cause of plaintiff’s bowel, bladder and impotence problems. Because the surgeons knew of plaintiff’s previous back surgery and that severe arachnoiditis existed, the court stated, they should have planned or effected the operation in such a way that retraction was minimal.

The judge was impressed by the testimony of the plaintiff’s experts, Dr. Jacques Schaerer and Dr. Roy Selby. He concluded from their testimony that “it would be inexcusable and unnecessary to apply excessive retraction to the nerve root.” He discounted the testimony of Drs. Schu-macher and Hamsa that a wide laminecto-my was performed, because Drs. Selby and Schaerer each stated the laminectomy could have been wider, and even one of the defendants’ experts, Dr. Michael Carey, testified they could have gone wider.

Finally, the judge concluded, the procedure performed by the defendants was not adequate and fell below acceptable medical standards. He further found that “the doctors lacked the degree of skill required because part of a surgeon’s skill is to be able to retract without causing nerve damage.”

ISSUES

On appeal, Dr. Schumacher raises the following issues:

1. Whether plaintiff proved by a preponderance of the evidence that Dr. Schu-macher lacked the degree of knowledge or skill ordinarily practiced by physicians within the specialty of neurosurgery;

2. Whether plaintiff proved that Dr. Schumacher failed to use reasonable care and diligence along with his best judgment in the application of that skill;

3. Whether the trial court correctly admitted into evidence X rays taken by Dr. R.C. Llewellyn several years after the surgery;

4. Whether the trial court allowed the existence of a bad result to influence its finding on the question of evidence; and

5. Whether plaintiff’s claim had prescribed under LSA-R.S. 9:5628.

The issues contested by Dr. Hamsa are as follows:

1. Whether the surgery was negligently performed;

2. If so, whether Dr. Hamsa, as the assistant surgeon, was individually negligent;

3. If he was not individually negligent, whether as an assistant surgeon he can be liable for the negligent choice of or performance of surgery by the operating neurosurgeon; and

4. Whether plaintiffs claim against Dr. Hamsa had prescribed.

PRESCRIPTION

The defendants and their insurers filed exceptions on the ground of prescription in the district court, which were denied. They reiterate the exception on appeal. The chronology listed in their briefs to this court illustrates that plaintiff filed suit more than two years and two months after the surgery, more than two years after his last visit with Dr. Hamsa, and more than one year and two months after his last visit with Dr. Schumacher.

LSA-R.S. 9:5628 mandates that a malpractice suit be brought within one year of the date of the alleged act of negligence or, in the alternative, within one year of the discovery of said negligence, but in no event later than three years after the alleged act of negligence. Plaintiff contends his suit was filed within one year of his discovery of the alleged negligence.

At trial Mr. Malbrough testified he did not learn that his bowel, bladder and impotence problems were permanent until after his attorney received a copy of a report by Dr. Pierre Espenan, who had examined and tested plaintiff on December 5, 1978. Dr. Espenan’s report was issued on December 12, 1978. We find the following comments from that report significant:

“He has been seen by an orthopedic surgeon, by a neurosurgeon and by a urologist. Either all or one has informed him that it might get better.
⅝ ⅜ ⅝ jfc ⅜
“He has not seen a neurosurgeon or any other doctors besides the ones who have been taking care of him through this disc operation.
* * Sfc * ⅜! *
“I believe that this patient should have a complete and thorough neurological examination by someone who would render you an impartial and unbiased opinion.
“I think that the prognosis is very poor for this patient to get return of his sphincter function or his bladder control. It probably is associated with sectioning of the nerve to these areas. He denies any previous difficulty in these areas and it wasn’t until after the surgery that he developed these problems.”

The defendants argue plaintiff should have been aware of possible negligence either from the time his post-surgical symptoms developed, or at the latest some time before September 19, 1978, because by that date Mr. Malbrough had been seen by Dr. Hamsa twice and by Dr. Schumacher ten times. They argue that surely by that time Mr. Malbrough should have had sufficient command of the operative facts to create a suspicion of negligence.

We disagree. Mr. Malbrough testified that Dr. Schumacher indicated to him after surgery that he would heal but that it would take time. Dr. Hamsa apparently made no statement one way or the other respecting the plaintiff’s subsidiary problems. It was only after receiving Dr. Es-penan’s report in December 1978 that Mr. Malbrough realized his problems would never be resolved because they were the result of permanent nerve damage. His suit was filed within one year of learning that. Accordingly, his cause of action has not prescribed. Young v. Clement, 367 So.2d 828 (La.1979); Henson v. St. Paul Fire & Marine Ins. Co., 363 So.2d 711 (La.1978); Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App. 2d Cir.1979).

LIABILITY OF DR. SCHUMACHER

The burden of proof in medical malpractice cases is statutorily established:

“A. In a malpractice action based on the negligence of a physician * * *, the plaintiff shall have the burden of proving:
“(1) [W]here the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians * * * within the involved medical specialty.
“(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
“(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
* * * * * *
“C. In medical malpractice actions * * * the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician * * *. [Ijnjury alone does not raise a presumption of the physician’s * * * negligence. * * *” LSA-R.S. 9:2794.

At trial, the consensus of expert opinion was that Mr. Malbrough’s problems result from damage to the sacral nerves during the 1977 surgery, probably due to excessive retraction of the dural sac containing these nerves. As mentioned above, the nerve roots in the area were severely scarred from prior surgery on the plaintiff’s back. As a result, the nerve roots adhered together rather than gliding against each other like healthy nerve roots, and were much more sensitive to pressure. The physical problems the plaintiff suffers are collectively known as cauda equinal syndrome, because the portion of the spinal cord that was damaged is called the cauda equina.

Dr. Schumacher described the procedure he used in performing the surgery as a posterior wide lateral approach. He made an incision in the back over the area of the suspected blockage and made a hole or window in the vertebra so as to see the disc, cutting through the posterior longitudinal ligament as he did so.

Because the spinal cord and vertebral bodies overlie the discs, he had to curette the disc out from each side. To get to it without damaging the spinal cord, it was necessary to retract the nerve sac, first to one side and then to the other, as he curet-ted from each side. In his operative report Dr. Schumacher stated the dural sac was “gently” retracted. Both Dr. Schumacher and Dr. Hamsa testified they were well aware of the plaintiff’s severe arachnoiditis and planned the surgery taking that condition into account.

The plaintiff’s neurosurgery experts, Dr. Schaerer and Dr. Selby, testified that Dr. Schumacher should have been aware that the arachnoiditis on the dural sac made the nerves more sensitive and therefore he should have avoided retracting the nerve sac. They stated he could have done so either by making a wider lateral approach (a wider window in the vertebra) or by using an anterior extra-peritoneal approach (coming from the front). Both the wider lateral approach and the extra-peritoneal approach would probably have made a spinal fusion necessary in addition to the lami-nectomy, but would have avoided retraction of the dura. Both doctors opined that Dr. Schumacher had not met the requisite standard of care in view of the fact that nerve damage did occur to the patient.

Regarding the description in the operative report of the dural retraction, Dr. Schaerer testified,

“The statement that the dura was gently retracted, under those circumstances I think it must be considered a self-serving statement refuted by the result.”

In Dr. Schaerer’s opinion, it is part of the surgeon’s skill to be able to retract a nerve without causing nerve damage.

Dr. Selby testified that neurologists measure the amount of retraction on the dura through their training and experience; they are taught how to approach brain tissue or any body tissue and its tolerance for traction or retraction. Asked whether the extent of retraction is not a matter of clinical judgment on the surgeon’s part, he said, “Well, if you are applying force against the dura you are retracting too much.” He admitted the operating surgeon ought to be in the best position to judge which method to use, but said, “It would depend upon the outcome.”

Dr. Selby admitted he was judging Dr. Schumacher’s standards in this operation by the result of the surgery. In his opinion, too much retraction was placed against the dural sac containing the cauda equina, producing cauda equinal syndrome. Further, Dr. Selby stated, Dr. Schumacher apparently became aware of the problems about five days after the surgery but carried out no investigation to determine if the neurological damage was reversible. Dr. Selby felt that omission was an important factor.

Both Dr. Schaerer and Dr. Selby stated it was unnecessary to have made an incision in the posterior longitudinal ligament, because that required further retraction on the nerve roots.

The defendants’ experts in neurosurgery, Dr. Richard Warren Levy and Dr. Michael Carey, testified on the other hand that the approach Dr. Schumacher used was within the prescribed standard of care. Judging from his operative report, they concluded he had used his best medical judgment at the time in deciding how wide a window to cut in the vertebra, and they found nothing to indicate a lack of care in his handling of the dural sac. They both stated that going wider laterally or using a extra-peritoneal approach would have required a fusion to stabilize the patient’s back, and such additional surgery should be avoided when possible.

Dr. Richard Levy testified as an expert neurologist on behalf of Dr. Schumacher. He stated he would never have gone wider in the laminectomy than was done in this case, because it would have destabilized the patient’s back, requiring a fusion. He said it was proper for Dr. Schumacher to cut through the posterior longitudinal ligament because there is no other way to get to the ruptured disc.

Based on what is described in the operative note, it was his opinion the operation was within the standards of care for neurosurgeons. He said the risk of nerve damage where there is pre-existing severe scarring, as here, is present no matter how careful the neurosurgeon. His presumption from reading the operative note was that the bony exposure was adequate and the retraction of the dura was standard. He said if his presumptions were correct then the surgery was performed within the requisite standard of care. He stated he had performed re-operations in which he found dense scarring, but had never had a patient end up with permanent bowel, bladder and impotence problems. However, he said, these are a recognized complication of a re-operation.

Dr. Carey also testified on Dr. Schu-macher’s behalf as an expert in neurosurgery. He admitted it was probably true the plaintiff’s sacral nerves were damaged during the 1977 surgery. In his opinion, however, Mr. Malbrough’s ’ problems were not caused by negligence because when one is operating on the nervous system it is possible to have it malfunction, particularly if it is compromised by arachnoiditis.

Dr. Carey said he could state no specific maneuver during the operation to account for the nerve damage. He admitted he had stated in a pretrial deposition that he was sure it was the manipulation of the dura that caused the neurologic loss, but said his opinion had changed since giving the deposition. He felt it was strictly conjecture to say whether retracting the nerve root caused the trouble. He found no evidence that what was done was in any way incorrect or improper.

He stated further it would be possible to go very far laterally to avoid retraction, but it is a matter of “at-the-table” judgment by the surgeon. A more lateral exposure is an inherently destabilizing procedure that may lead to a lot of subsequent back discomfort because a fusion would be necessary. He said one cannot determine these things objectively before surgery; the question is whether the surgeon at the time felt he should have done it based on his experience — “a judgment call at the time the back is open.”

It was also Dr. Carey’s opinion that the posterior longitudinal ligament must be cut in order to take out the disc. In addition, he said even if Dr. Schumacher had gone further out laterally he might still have had to manipulate the nerve root to free it up from the pre-existing scar.

All the experts agreed that cauda equinal syndrome is a known complication of lami-nectomies, but occurs only rarely. It is more likely to occur in re-operations than in a first operation, but still is unusual. None of the surgeons who testified had ever had this problem occur following a surgery he performed.

Dr. Schumacher contends that the expert opinions presented by the plaintiff accusing him of negligence are based on hindsight, not taking into consideration the fact that during the course of an operation a surgeon must make many ad hoc decisions. He argues he had “very few choices: he could have done as he did and gently retract the dura, or he could risk removing more bone and thereby destabilize the plaintiffs spine which would then involve a fusion.” Because a fusion would have prolonged the surgery and involved additional risks, as well as the possibility of pain and discomfort, Dr. Schumacher asserts he acted prudently and used his best judgment.

The respective weight to be accorded expert testimony, and the factual conclusions regarding negligence to be drawn therefrom, are functions of the trier of fact. Absent a showing of manifest error, these conclusions may not be reversed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1978). We do not find the district court’s credibility evaluations and inferences of fact unreasonable, nor are they clearly wrong. Accordingly, we affirm the findings of liability on the part of Dr. Schu-macher.

A subsidiary issue raised by Dr. Schumacher is whether the trial court erred in admitting into evidence certain X rays on which Dr. Selby based his ultimate conclusion that more bone could have been removed. Defendants object it was prejudicial to allow into evidence X rays that may or may not accurately depict the condition of the plaintiff’s spine at the time of surgery.

We find no error in the use of the X rays. There was no testimony to indicate there had been any significant internal changes at the surgical site. If Dr. Schumacher had felt the X rays distorted the surgical site as he had viewed it at the time of surgery, he could have testified to that effect. Further, Dr. Schumacher himself testified he could have removed more bone than he did, but chose not to do so because he wished to avoid the necessity for a fusion.

Finally, Dr. Schumacher argues the trial judge committed manifest error because he allowed the existence of a bad result to raise a presumption of negligence. Appellant contends the court erred by failing to judge the defendants’ conduct by what they knew or should have known at the time of the surgery.

We disagree. There is no indication from the trial judge’s reasons for judgment that he placed undue emphasis on the unfortunate results of the surgery. He made clear that, given the defendants’ knowledge of the plaintiff’s severe arachnoiditis, in his opinion they failed to use their best medical judgment in planning the surgery so as to avoid damaging the already-scarred nerves.

LIABILITY OF DR. HAMSA

Dr. Hamsa contends, first, the surgery was not negligently performed. Secondly, he asserts that, regardless of the liability of Dr. Schumacher, he is not liable to plaintiff because (1) he is an orthopedic surgeon, not a neurosurgeon; and (2) he served as Dr. Schumacher’s operating assistant during the procedure and did not himself perform the surgery. He argues that the plaintiff failed to satisfy the statutory burden of proof under R.S. 9:2794 as to the degree of care required of an orthopedic surgeon serving as a surgical assistant.

It should be noted that Mr. Malbrough was being treated by Dr. Hamsa for his back pain prior to the operation. When Mr. Malbrough was admitted to the hospital for an acute episode and underwent a myelogram showing a blockage at L3-L4, Dr. Hamsa diagnosed a herniated L4-L5 disc. Because of the complicating arach-noiditis Dr. Hamsa had the patient seen in consultation by Dr. Schumacher, the neurosurgeon. The doctors discussed the case at great length and scheduled the patient for surgery.

During the surgery Dr. Hamsa assisted Dr. Schumacher; according to Dr. Hamsa, he simply did whatever Dr. Schumacher requested of him. He contends it was incumbent on the plaintiff to establish the duties or degree of care required of an orthopedic surgeon who serves as a surgical assistant, but all plaintiff’s evidence was directed toward the degree of care required of one who performs a laminecto-my under the complications involved in Mr. Malbrough’s case. None of this evidence, argues Dr. Hamsa, establishes the degree of care required of an assistant surgeon. Accordingly, he asserts, plaintiff’s case against him should have been dismissed.

Instead, the trial judge held Dr. Hamsa jointly liable with Dr. Schumacher:

“The Court finds that both Dr. Schu-macher and Dr. Hamsa consulted and agreed to what surgical procedure would be performed and that both doctors retracted the nerve root during the operation. The Court finds that excessive retraction of the nerve root and the failure to do a wide lateral laminectomy were the cause of the plaintiff’s bowel, bladder and impotence problems.”

Clearly, the trial judge concluded that Dr. Hamsa not only assisted but actually participated in performance of the surgery. This is supported by the record. Dr. Russell Levy, who testified as an expert orthopedic surgeon on behalf of Dr. Hamsa, described the role of an orthopedist in assisting a neurosurgeon in lumbar laminec-tomy surgery:

“The orthopedists in these cases usually render an opinion, and they’re usually the ones responsible for holding the nerve root retractors once the nerves are freed up. So they more or less hold the retraction to allow visualization once the disc is being removed in the lower part of the wound.”

Although Dr. Hamsa denied at trial that he had helped curette the disc material, stating he only took the material off the curette, his deposition testimony was that he had helped to curette out the disc. Further, Dr. Russell Levy testified, “My understanding is that he did help curette the disc. But I don’t recall that it was reflected in the record that way. It was my understanding that he did do some of the curetting.”

In addition, Dr. Selby testified that the techniques used by both neurosurgeons and orthopedic surgeons in performing laminectomies are no different insofar as their specialties are concerned. Dr. Russell Levy testified that in New Orleans both orthopedists and neurosurgeons do lumbar and cervical disc surgery: “The training in both the medical schools have been for the two different services during residency to compete more or less for this type of surgery. So both orthopedists and neurosurgeons are trained to do this.”

Taken as a whole, we find plaintiff carried his burden of proof that Dr. Hamsa participated in planning and performing the surgery to such an extent as to be liable for its results. Further, the evidence establishes that the standard of care for Dr. Hamsa was the same as for Dr. Schumacher, insofar as this particular type of surgery is concerned.

In addition, as mentioned above, Dr. Sel-by pointed out that neither Dr. Schumacher nor Dr. Hamsa ever mentioned to plaintiff that his problems may have been caused by nerve damage sustained during the operation. Nor did either of them take immediate or early action to determine whether there was nerve damage and whether the effects were reversible. Like Dr. Selby, we find this omission an important factor.

Considering all the testimony and evidence we do not find the trial judge was manifestly erroneous or clearly wrong in concluding that Drs. Hamsa and Schumacher were negligent and responsible for the injuries suffered by plaintiff. Accordingly, the judgment of .the district court finding the defendants liable to the plaintiff is affirmed. The case is remanded to the district court for trial on the issue of damages. Costs of this appeal are assessed against defendants-appellants.

AFFIRMED AND REMANDED.

GAUDIN, J., dissents and assigns reasons.

GAUDIN, Judge,

dissenting.

I respectfully dissent, being of the opinion that the testimony and evidence preponderated in favor of the defendant physicians, Drs. John Schumacher and Vaclav Hamsa, and that the trial judge was manifestly wrong in finding otherwise.

Dr. Schumacher is a neurosurgeon while Dr. Hamsa is an orthopedist. Dr. Schu-macher, with Dr. Hamsa assisting, performed a delicate decompression laminecto-my on Charles Malbrough and removed a herniated disc. This was at precisely the same spot where previous surgery had been performed, leaving Mr. Malbrough with severe arachnoiditis and scarring going into the July 14, 1977 operation.

Although the bulging disc was excised, the record supports the trial judge’s determination that Mr. Malbrough’s present urological problems are related to the July 14, 1977 operation.

But were Drs. Schumacher and Hamsa negligent in excessively retracting the nerve roots and in failing to do a wide laminectomy? In so finding, the trial judge accepted the opinions of two neurosurgeons, Dr. Jacques Schaerer from St. Louis, Missouri and Dr. Roy Selby of La-cross, Wisconsin and rejected (1) the testimony of Dr. Schumacher who explained how carefully the sensitive surgery had been performed on a diseased spine, (2) Dr. Hamsa’s similar testimony, (3) the testimony of Dr. Richard W. Levy, the chief of neurosurgery at Touro Infirmary, who said that the surgery had been performed within acceptable standards, (4) the testimony of Dr. Russell Levy, an orthopedic surgeon, who said that the surgery was “... performed within the standard of care expected ... ,” and (5) the testimony of Dr. Michael Carey, a neurosurgeon and a professor of neurosurgery at LSU, who said:

“I think it was certainly within the standard of the local and national community. I think it was a good case.”

While the record does contain some testimony supportive of the trial judge’s decree, a consideration of the entire record and all of the testimony indicates that the finding of negligence was clearly erroneous.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Hal P. WINN et ux.
    No. CA 2095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 1984.
    Rehearing Denied Feb. 26, 1985.

      Bernard J. Malone, Jr., Louisiana Dept, of Transp. and Development, Baton Rouge, Jesse S. Guillot, New Orleans, William W. Irwin, J'r., Bryan Miller, Baton Rouge, for appellant.
    Robert F. Fadaol, Gretna, for appellee.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   CIACCIO, Judge.

The State of Louisiana, Department of Transportation and Development filed this action to expropriate the defendants’ residential property, located at 1627 Hermosa Street in Algiers, so as to allow for the construction of the Greater New Orleans Mississippi River Bridge. The trial court, after a bench trial, rendered judgment for the defendants in the sum of ten thousand dollars ($10,000). Plaintiff and defendants appeal complaining of the nature and amount of the trial court’s award. We amend the judgment of the trial court and as amended, we affirm.

The issues presented by this appeal are as follows: (1) Did the trial court err in rendering judgment against the State of Louisiana in the sum of $10,000? (2) Did the trial court err in failing to award the State of Louisiana a credit of $10,500.00 for additional compensation paid to defendants prior to trial? (3) Did the trial court err in refusing to award expert fees to a witness called by the defendants? (4) Are the defendants entitled to attorney fees and costs?

On June 26,1981, plaintiff filed a petition for expropriation and placed the sum of $75,000 into the registry of the court, as an estimate of just compensation. The defendants withdrew the sum deposited and filed an answer to the petition, alleging that the property was worth $89,000. In its amended answer filed December 1, 1982, the defendants alleged, however, that the property was worth $92,450.

The defendants later purchased a residence located at 2245 Beck Street in Algiers for the sum of $87,000. In conjunction with this purchase, the plaintiff, on March 26,1982, paid the defendants a replacement housing payment of $21,303.03, which included $10,500 as a supplement to the original deposit, $9,833.53 for the increased interest differential on the new mortgage, and $969.50 for incidental closing costs. (Exhibit P-6) Subsequent to payment of the replacement housing claim and prior to trial, the State filed a rule to show cause why any excess judgment rendered in the expropriation proceedings should not be subject to a credit of $10,500.00 because of the additional compensation paid to defendants for the taking of their property, and because of the contractual agreement between the State and defendants which provided: “In the event the valuation for the referenced parcel as shown in Item l-A-3 [i.e., Expropriation Amount $75,000] is litigated. I agree that the amount of the replacement housing payment (Item II-A-6) [i.e., total supplement] shall be recalculated, using the final award as a basis for the valuation in Item I-A-3, and any overpayment shown to have been made as a result of such recalculation, shall be refunded to the Department.” The rule was not disposed of prior to trial, but was referred to the merits, with the trial judge asserting that he would rule on it at the same time as he rendered judgment on the main demand. (Tr. pp. 384)

On June 29, 1983 the trial court rendered judgment in favor of Mr. and Mrs. Hal P. Winn and against the State of Louisiana in the amount of $10,000.00. The judgment did not address the State’s rule for a credit of $10,500.00, nor did the trial judge give written reasons for judgment. The State and defendants both filed motions for new trial requesting the court, among other things, to rule on the State’s claim for offset and for written reasons for judgment. On September 27, 1983 both motions were denied. The State and defendants appealed devolutively.

The subject property is located in Square 274, Lot 6, at 1627 Hermosa Street in Algiers, New Orleans, Louisiana. The lot fronts on Hermosa Street, measuring a width of 33.40 feet in front, 33.49 feet in the rear and a depth of 160 feet. The two-story, brick veneer, custom built, single family home contains approximately 2300 square feet of living space. At the time of the plaintiff’s initial inspection the house contained an unfinished storage room. Prior to trial the room was completed by the defendants. Mr. Winn added paneling and carpet to complete the unfinished room, at a cost to him of five hundred dollars. The record does not show that these improvements were made prior to the June 26th, 1981 taking.

Just Compensation

The measure of compensation in expropriation cases is set forth in Revised Statute Title 48 Section 453:

A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
* * * * * *
C. The owner shall be compensated to the full extent of his loss. The court shall include in its consideration the difference between the rate of interest of any existing mortgage on an owner-occupied residence and the prevailing rate of interest required to secure a mortgage on another owner-occupied residence of equal value.
* * * * * *

The Court of Appeal, in State Department of Transportation and Development v. Goldsby, discussed the issue of valuation as it relates to just compensation of the landowner. 427 So.2d 580 (La.App., 5th Cir., 1983). In the Goldsby case supra at 581-582, the court stated:

The land owner is entitled to “just and adequate compensation” for the expropriation of his land. Such compensation is measured by the market value of the property taken. State Department of Highways v. Ponder, 345 So.2d 106 (La. App. 1st Cir.1977).
Market value has been defined to mean “... the worth of the land considered in the light of its best and highest use, this being the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future.” State Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280 (La.1964).
The use of land considered in determining market value must be one which has a bearing on the market value at the time of the taking, and one which would be considered by a willing buyer as affecting the market value. Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3d Cir.1972).

In cases of expropriation, the more reliable and approved method for determining the fair market value of the property taken is to consider comparable sales, adjusting them to compensate for their relative bad and good features with regard to the expropriated property. State, Through the Department of Highways v. Romano, 343 So.2d 222 (La.App., 1st Cir., 1977) Accordingly, the determination of what amount will compensate the owner of a property right, to the full extent of his loss because of expropriation of his right, must be made on the basis of the facts of each case and in accord with the uniqueness of the thing taken. Southern Natural Gas Co. v. Poland, 406 So.2d 657 (La.App. 2nd Cir., 1981). Such findings of fact will not be upset unless they are manifestly erroneous. State of Louisiana v. Ransome, 392 So.2d 490 (La.App., 1st Cir., 1980), State, Through the Department of Highways v. Romano, supra.

In cases of expropriation, the title to the property vests with the department and the right to just and adequate compensation vests with the former owner at the time the deposit of the amount of the estimate is made into the court’s registry. R.S. 48:445. It is on this date that the value of the property must be determined. State Department of Highways v. Rosen-blum, 344 So.2d 424 (La.App., 1st Cir., 1977).

In this case the former owner and four real estate appraisers testified.

Mr. Winn, the former owner, testified that he received an official notice of the intended expropriation in 1979. He stated that since he was advised that completion of an unfinished room in the house would enhance its value by five to six thousand dollars, he personally installed carpet and paneling in the room. These improvements were made after real estate appraiser, Angus Eason, had inspected the property. The defendant did not testify as to the exact date that he did the work, and Eason did not testify as to the actual date of his inspection, although his written appraisal is dated November 19, 1981. Under these circumstances the defendant did not prove that this work was done prior to the taking, and we give him no credit for same.

The defendant also testified that he received $75,000.00 from the State and also $21,305.30 as a relocation fee. He further testified that he purchased a new home at a price between $85,000 and $87,000.

Jack Evans, a real estate broker and appraiser, testified that he appraised the subject property using the market data and cost approach. Under the cost approach he valued the land and buildings at $83,051 while under the fair market value approach he valued it at $80,000. He therefore concluded that the fair market value, as of June 26, 1981 was $81,500.

Louis Derbes, a qualified real estate appraiser, used the cost and market data approach. Under the cost approach the property was valued at $80,800, while under the data approach it was valued at $78,000. Derbes concluded that the fair market value for the property, as of June 26, 1981, was $78,000.

Earl Schmitt, a real estate appraiser inspected the property and appraised it for $85,350, using the market data and cost approach. He testified, however, that if the house had been finished and the consumer price index adjustment made that he would value the house at $92,000.

Angus Eason, a real estate appraiser, inspected the property and prepared an appraisal with the valuation effective as of June 26, 1981. He stated that he found no properties similar to that of the Hermosa Street property. Accordingly, he did not use the market value approach. Rather, a reproduction cost method was used wherein consideration was given to the cost new today or at the effective date less depreciation. He used the market value approach on the land. Accordingly, he concluded that the house was worth $77,699, the land was $10,665, the patio was $1,385, the fence $1,600 and $600, and the storage shed was $500 for a total value of $92,450.

Evans, Derbes and Eason furnished comparable sales and detailed reproduction cost estimates to substantiate their appraisals, but Schmitt furnished no comparables in testimony or in his written appraisal.

The difference in valuation between the Derbes, Evans and Eason appraisals resulted from different land valuations, depreciation factors and reproduction cost estimates. Schmitt gave no breakdown between land and improvements. Schmitt’s appraisal, without regard to any increase in value because of the finishing of the storage room, but applying his addition for inflation at 1% per month for 3 months was $87,910.50. Eason’s appraisal was $92,-450.00, Evans’ appraisal was $81,500.00, and Derbes’ appraisal was $78,000.00.

The trial judge apparently concluded that the fair market value of the property was $85,000.00 and rendered judgment accordingly. We find no error in this conclusion and we hold that $85,000.00 is the fair market value of defendant's property. We further find that the State is entitled to a credit of $10,500.00 as an offset against the judgment because of the additional payment made to defendants on March 26, 1982 and because of the contractual provisions which obligated the defendants to give credit to the State for the additional sum received if the matter was litigated.

Expert Fees

Defendants allege that the trial court erred in refusing to award expert fees to one of their experts, Angus Eason.

The fixing of expert fees is a matter which is largely within the sound discretion of the trial court and such a decision will not be disturbed on appeal absent a clear abuse of discretion. State Department of Highways v. Salles, 387 So.2d 1278 (La. App., 1st Cir., 1980).

However, we find no reason for awarding expert fees to Schmitt and denying them to Eason, particularly since the Eason appraisal was more detailed and furnished comparables while Schmitt’s did not. Accordingly, we find it was error to deny the expert fee to Eason, and we fix same at $200.00.

Attorney Fees and Cost

The defendants contend that they are entitled to attorney fees because of the bad faith negotiations of the State. We disagree.

The award of attorney fees in expropriation cases are statutorily prescribed:

R.S. 48 Sec. 453:

* * * * * *
E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.
* * * * * *

Although the deposit of $75,000 initially made by the plaintiff was less than the value assigned to the property by plaintiff’s appraiser we are not convinced that the plaintiff acted in bad faith considering that plaintiff paid an additional $10,500 nine months later and prior to trial. The granting of attorney fees is within the sound discretion of the trial judge and we find no abuse of his discretion.

Defendants also argue that they should be awarded their costs of this proceeding. The district court’s judgment is silent with regard to the payment of costs. We therefore amend the judgment to assess the State with defendant’s costs of the proceeding. LSA-Const. Art. 1 Sec. 4, State, Through Department of Highways v. Henderson Prop., Inc., 264 So.2d 348, Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir.1968) writ refused 215 So.2d 130.

Accordingly, the judgment of the district court is affirmed in so far as it granted judgment in favor of the defendants and against the plaintiff for the sum of $10,-000.00. It is amended to include legal interest from date of judicial demand until paid subject to a credit of $10,500.00 paid on March 26, 1982. It is also amended to award expert fees in the sum of $200.00 to Angus Eason in addition to the $200.00 awarded to Earl Schmitt. Defendant’s costs are assessed to plaintiff. The judgment, as amended, is affirmed.

AMENDED AND AFFIRMED.


author: BARRY, Judge.

text:
    DELTA DECKS, INC., et al. v. UNITED STATES FIRE INSURANCE COMPANY.
    No. CA-1886.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Bruce G. Reed, J.D., Reed & Reed, New Orleans, for plaintiffs-appellants.
    John E. McAuliffe, Jr., Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellee.

      Before GARRISON, BARRY and LO-BRANO, JJ.
   BARRY, Judge.

Plaintiffs’ burglary insurance claim was dismissed based on no evidence of forced entry to the insured premises.

The facts are undisputed. Plaintiffs own and operate a business at 8100 Chef Ment-eur Highway in New Orleans. The address consists of an office building and shop on land surrounded by an outer locked fence. An employee arrived at work and discovered the side door to the office building open. There was no sign of forced entry, but the fence had been cut open. An outside guard dog was missing. Items valued in excess of defendant’s $5,000.00 burglary policy were stolen.

Plaintiffs’ suit for recovery was dismissed because the insurance policy barred recovery due to no forced entry into the building. We affirm.

The policy provides:

To pay for loss by burglary or by robbery of a watchman, while the premises are not open for business, of merchandise, furniture, fixtures and equipment within the premises or within a showcase or show window used by the insured and located outside the premises but inside the building lines of the building containing the premises or attached to said building.
“Premises” and “burglary” are defined:
(a) “Premises” means the interior of that portion of the building at the location designated in the declarations which is shown in the declarations as occupied by the insured in conducting the business as stated therein, but shall not include (1) showcases or show windows not opening directly into the interior of the premises, or (2) public entrances, halls or stairways.
(b) “Burglary” means the felonious abstraction of insured property (1) from within the premises by a person making felonious entry therein by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of such entry, or (2) from within a showcase or show window outside the premises by a person making felonious entry into such showcase or show window by actual force and violence, of which force and violence there are visible marks thereon, or (3) from within the premises by a person making felonious exit therefrom by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the interior of the premises at the place of such exit.

Thus, liability is restricted to losses from forcible entry on the “premises” when the entry is evidenced by visible marks and property is stolen from inside. Plaintiffs contend such provisions are against public policy because a burglary is defined in a more restrictive manner in our criminal law. They argue the right to sell burglary insurance is created by statute, La.R.S. 22:6(6), and the criminal definition of burglary, La.R.S. 14:62, should control the contract.

R.S. 14:62 does not include forced entry as an element of a burglary. R.S. 22:6(6) does not require that policies define burglary in conformity with our criminal law. To the contrary, our jurisprudence recognizes an insurance company’s right to insert a clause limiting liability when there are no visible marks of forced entry. Lichtentag v. Millers Mutual Fire Insurance Company of Texas, 250 So.2d 105 (La.App. 4th Cir.1971); Lacombe v. Zurich Insurance Company, 210 So.2d 338 (La.App. 3rd Cir. 1968); Petrie v. Millers Mutual Fire Insurance Company of Texas, 115 So.2d 228. (La.App.Orl.1959). The reason for incorporating such a limitation was enunciated in Kline v. Ocean Accident and Guarantee Corporation, Ltd., 9 Orleans App. 210, 212 (1912):

It is clearly the purpose of the clause in the policy to protect the company against the res ipsa loquitur view that burglary may be inferred from disappearance of the objects irrespective of any evidence whatsoever of forcible entry.

Limiting liability to proof of visible evidence of forced entry is not against public policy. Lichtentag v. Millers Mutual Fire Insurance Company of Texas, supra. In the absence of conflict with laws or public policy, insurers have the right to limit their liability and impose whatever conditions they please upon their obligations under the policy. Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974); Fruge v. First Continental Life and Accident Insurance Company, 430 So.2d 1072 (La.App. 4th Cir. 1983).

Plaintiffs argue the fence surrounding the office building is part of the “premises”, and since it was cut the visible marks of forced entry warrant coverage.

An insurance policy is a contract between the insured and the insurer and is the law between them. La.C.C. Art. 1901; Fruge v. First Continental Life and Accident Insurance Company, supra; Jones v. Allstate Insurance Company, 429 So.2d 241 (La.App. 3rd Cir.1983); Hall v. National Life and Accident Insurance Company, 383 So.2d 74 (La.App. 3rd Cir.1980). Where the language of the policy is free and clear of ambiguity, it constitutes the contract between the parties and must be enforced as written. Fruge v. First Continental Life and Accident Insurance Company, supra; Hall v. National Life and Accident Insurance Company, supra.

This insurance policy defines “premises” as “the interior of that portion of the building at the location designated in the declarations.” Coverage is provided for loss inside the premises [building] when visible signs of forced entry appear on the premises [building]. It is ludicrous to argue the interior of a building includes the fence and area outside the building.

In Singerman v. National Surety Corporation, 196 So.2d 291 (La.App. 4th Cir. 1967), the plaintiff operated a pharmacy in a two-story building surrounded by a conCrete porch. An employee was robbed on the porch before entering the building. Coverage was denied because the loss did not occur “inside the premises” as required by the policy. “Premises” as defined in the Singerman policy was virtually identical to this case: “the interior of that portion of any building at a location designated in the declarations.” The court held that the porch was not the interior of the premises as contemplated by the policy and stated:

The point at which one passes from the exterior into the interior of the premises is the recessed entrance door at the base of the triangle. The risks covered by the policy were those losses which occurred behind this door. Naturally, the risks outside the enclosure were greater, but the plaintiff did not take coverage on those risks which he could have had by paying an additional premium ... The loss claimed here was unquestionably on the premises, but was not within the premises, and no recovery under the policy can be had.

Here there was no sign of forced entry to the office building. The cut fence was not part of the building and there is no basis to recover.

The judgment is affirmed.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Leo WILSON.
    No. KA 1682.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied April 1,1985.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    Numa V. Bertel, Jr., Clyde Merritt, Dwight Doskey, New Orleans, for defendant.
    Before REDMANN, C.J., and GULOTTA and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Defendant appeals from his conviction after trial by jury for armed robbery of two persons, one of whom testified definitely that defendant was one of three persons who robbed him and a friend with knives. (The other victim testified that he did not see the face of the robber who was wrestling with the first victim during the robbery — and whom the first victim identified as defendant — but that that robber’s build was like that of defendant.)

Defendant’s argument is that the evidence was insufficient, especially in light of the testimony of 12 alibi witnesses that defendant was playing football some distance from the robbery site at the time of the robbery. Defendant argues that a “rational” trier of fact would not disbelieve 12 witnesses, of whom only two are relatives of defendant.

We reject that argument. The 12 witnesses had no reason to fix events of the day of the robbery in their minds until weeks thereafter when defendant was charged or, in most cases, until five or six months later when defendant’s mother sought them out as witnesses. The circumstance that a party was held (to celebrate the day-before birthday of one neighbor) the night of the day of the 4 p.m. robbery could well fix their memories as to defendant’s whereabouts that night; but a rational trier of fact might well conclude that an afternoon of playing football and an evening of a birthday party were not so logically or necessarily connected as to assure correctness of the witnesses’ testimony that one particular person was playing football during the afternoon before the party. (Similarly not logical or necessary is the connection between defendant’s playing football and one witness’s having gone home from school early to serve his 13-year-old brother’s birthday ice cream and cake that day.) On the other hand, a rational trier of fact might well conclude that the terrifying experience of suffering an armed robbery could easily fix the robber’s face in the victim’s memory. Faced with quite definite testimony by one victim as opposed to testimony (not unfairly describable as less than definite) from nine of the accused’s neighbors plus one visiting acquaintance plus two relatives who have no sure point of reference for the time of the afternoon robbery (although they do have for that night), a rational trier of fact could accept the victim’s testimony as correct and reject the 12 alibi witnesses’ testimony as mistaken.

A similar view might have been held by a rational trier of fact regarding defendant’s mother’s testimony that defendant had a “jerry curl” hairstyle at the time of the robbery. The robber had a “bush” hairstyle. Again, there is no definite point of reference for the mother to fix the date of giving defendant the jerry curl; she is merely relying on her memory of an ordinary event whose date she had no special reason to remember until several weeks later when her son was charged.

Considering the evidence in the light most favorable to the prosecution, State v. Raymo, 419 So.2d 858 (La.1982), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt.

Defendant also argues that we should consider the evidence introduced at the hearing on his motion for a new trial. Polygraph examinations of himself and one witness indicate that they told the truth at his trial — or, more exactly, as the expert testified, indicate that they believe that they told the truth at trial. Defendant concedes that the granting of a new trial on the basis of polygraph evidence is a matter of judicial discretion, State v. Humphrey, 445 So.2d 1155 (La.1984), but argues that we ought to take the evidence into account in ruling on defendant’s appeal. We have reviewed that evidence, insofar as revealed by the supplemental transcript and our assumption that the “report” of the examiner was that defendant was not trying to deceive the examiner in saying that his trial-time testimony was truthful. But we cannot accept that evidence as probative of the truth of defendant’s trial-time testimony because that would wholly defeat the rule that polygraph evidence is not admissible in criminal trials, for the reasons set forth in State v. Catanese, 368 So.2d 975 (La.1979).

Affirmed.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. James GREEN.
    No. KA-1798.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., Richard D. Jacobson, Law Clerk, New Orleans, for appellee.
    Calvin Johnson, Richard W. Martinez, Student Practitioner, Loyola Law School Clinic, New Orleans, for appellant.
    Before REDMANN, C.J., and GULOTTA and WILLIAMS, JJ.
   GULOTTA, Judge.

James Green was convicted of forcible rape, LSA-R.S. 14:42.1, and after being multiple billed was sentenced to 40 years. In his only assignment of error, defendant contends the evidence is not sufficient to support a finding of guilt beyond a reasonable doubt.

Before reaching the merits of defendant’s assignment, we reviewed the record for errors patent. The record does not indicate whether or not the defendant was present at the arraignment. However, it does reflect that his attorney was present and entered a not guilty plea without objection. Under the circumstances this irregularity in the arraignment is waived. See LSA-C.Cr.P. Art. 555.

Green argues the evidence presented was not sufficient to prove the State’s case beyond a reasonable doubt or to exclude every reasonable hypothesis of innocence.

An appellate court, in reviewing the sufficiency of evidence to support a conviction, is required to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Summitt, 454 So.2d 1100 (La.1984); State v. Joseph, 425 So.2d 1261 (La.1983); State v. Fuller, 414 So.2d 306 (La.1982). To obtain a conviction for forcible rape, the State must prove that: 1) anal or vaginal intercourse occurred; 2) the victim’s resistance was prevented by force or threats of violence; and 3) victim reasonably believed that such resistance would not prevent the rape.

In the instant case, both the appellant and the 39 year-old female victim testified that intercourse took place. The question is whether the victim consented or whether her resistance was prevented by force or threats of force.

The victim testified that on July 24,1982, at approximately 6 p.m., she left her van at a service station for repairs. After ascertaining from the station owner that it would be safe to get a ride from the defendant, the victim asked Green if he could drive her to a restaurant on the periphery of the French Quarter. While riding with Green, the victim realized that they were heading in the wrong direction. Green told her that he had to pick up a friend along the way, and he stopped at what appeared to be an abandoned house. The victim was coaxed out of the front seat of the car and forced into the back seat. According to the victim, Green pinned himself on top of her and, after a struggle of approximately 10 minutes, raped her. In connection with evidence relating to force, the victim testified:

“So, then I started fighting him, and he was getting upset at that, obviously, and he said something like, T don't want to hurt you. It’s not in me to use violence, so calm down and let’s get it over and done with because I’m going to take you.’ I said, ‘No’, you know, and I was by that time pretty hysterical. I was crying and trying to fight him off, you know, but he never did hit me. I must add he never punched me or anything, but at one point, I think I struggled with him approximately ten minutes, maybe less. It seemed like a long time. And, at one point he clinched his fists. He said, T have never hit a woman and I don’t like hitting you, so just clam down’, and I realized he was starting to get mad at me, and I think basically I flashed towards — I have a two and-a-half year old and my husband and I have split up, and basically flashed if anything happened to me, she didn’t have anyone to take care of her. She would end up in an orphanage. If anything would happen to me she didn’t have anyone to take care of her. She would end up in an orphanage, and let this person get on with what he was going to do and get out of there fast. And, so I went along with him at that point when I saw he might get violent and I let him — I raised my dress.”

Green then drove the victim to an Exxon station one block from the corner of Rampart and Esplanade Streets, where she called the police.

According to defendant, the victim asked him to drive her to the Desire housing project. Upon arrival at the project, the victim picked up a tinfoil pack. Defendant indicated that the victim sniffed the contents of this package. He then drove down Florida Avenue whereupon the victim asked him for forty dollars in exchange for oral sex. He told the victim that he didn’t have forty dollars and that he did not do oral sex. However, he did give her eighteen dollars. He stopped the car and they had intercourse. He then drove her to an Exxon station. When the victim saw that he had more money, she became angry and left.

Medical examination conducted three hours after the incident showed that intercourse had taken place. Furthermore, the dress which the victim had worn on July 24, 1982, was ripped and dirty in several places. Both the victim and a friend testified that this dress was not in that condition prior to the ride with the defendant.

In the instant case, the State’s evidence largely consisted of the direct testimony of the victim. This testimony was contradicted by that of the defendant. The jury, as a fact finder, based on credibility, believed the victim and rejected the defendant’s testimony. We cannot now, as a reviewing court, say that finding is in error. Our review is limited to the Jackson standard. Applying that standard, we conclude the jury, based on a credibility determination, could have found the defendant guilty beyond a reasonable doubt. Because the conviction in the instant case is not based on circumstantial evidence, the evidentiary rule of excluding every reasonable hypothesis of innocence is not applicable here.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Lionel BUCHANAN.
    No. KA-2125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Maria Lazarte, Asst. Dist. Attys., New Orleans, for appellee.
    Calvin Johnson, Dianne McDonald, Student Practitioner, Loyola Law School Clinic, New Orleans, for appellant.
    Before REDMANN, C.J., and GULOTTA and WILLIAMS, JJ.
   GULOTTA, Judge.

Defendant was convicted of two counts of forgery, a violation of LSA-R.S. 14:72, and sentenced to serve seven years at hard labor with credit for time served.

Defendant, appealing, contends: (1) the trial court erred in denying his motion to suppress the identification based on a photographic line-up; and (2) there was insufficient evidence to support the conviction. Before reaching the merits of defendant’s assignments of error, we reviewed the record for errors patent. The record does not indicate any such errors.

FACTS

On September 22, 1981, the police were summoned to Gordon Jewelers on Canal Street to investigate an attempt to use what was possibly a stolen Visa credit card. By the time they arrived, the suspect had left but the sales lady told them that the man was carrying a Godchaux’s department store shopping bag. Investigating officers then went to Godchaux’s and spoke to a Mrs. Colpepper, who informed them that two men matching the description had purchased a leather jacket and a sweater, using a credit card in the name of Roy Chauvin. The sales ladies at Godchaux’s were able to provide a description of the two men to include the type of clothing, height, weight and hair style.

Visa had been contacted by Gordon’s Jewelers while the suspect was attempting to use the card. An investigator for Visa then contacted Mr. Chauvin who was the owner of the credit card, and it was determined that he had not as yet received his new card in the mail. A description of the suspect provided by the Godchaux’s employees was run through the NOPD computer. The suspect was described as a black male, approximately 30 years old, about 5 ft. 10 in., thinly built, with a tattoo of the initial “G” on his left hand. A line-up, of six photographs, including the defendant’s picture, was presented to the personnel at Gordon’s Jewelers and at God-chaux’s. All identified the defendant.

The witness who identified Buchanan in the photographic line-up were also able to identify him in court. Although two of the three witnesses stated they had remembered that the man had a green tattoo on one of his hands, both identified him by his face and denied that the tattoo was the basis for their identification. Roy Chauvin, the holder of the Visa card, testified that he had not made any purchases at God-chaux’s on September 22, 1981, and that he did not sign the sales receipts that were exhibited. Furthermore, he had never seen the defendant before and had not authorized him to use his credit card.

The defendant’s girl friend, Trina Sterling, testified that she had lived with the defendant for the past four years and was with him all day on September 22, 1981. According to her, the only time that she and defendant had been separated on that day was between 3 p.m. and 3:45 p.m. when she had asked the defendant to go to a K & B Store to pick up liquor for a party that was to occur the next day. The defendant took the stand and repeated the alibi. He also admitted to having three prior convictions, two for burglary and one for theft.

ASSIGNMENT OF ERROR ONE

In this assignment, defendant contends the trial judge erred in denying his motion to suppress the identification.

For evidence of an out-of-court identification to be suppressed, the defendant must show that the identification was so suggestive that there existed a likelihood of misidentification resulting from the identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Chaney, 423 So.2d 1092 (La.1982). The five factors used to determine whether an out-of-court identification was suggestive are: 1) the witness’ opportunity to view the defendant during the commission of the crime; 2) the degree of attention paid by the witness during the commission of the crime; 3) the accuracy of any prior description given by the witness; 4) the level of the witness’ certainty displayed at the identification; and 5) the length of time between the crime and the identification. State v. Prudholm, supra; State v. Chaney, supra.

A photographic line-up is suggestive when the pictures “display the defendant so singularly that the witness’ attention is unduly focused upon the defendant.” State v. Smith, 430 So.2d 31 (La.1983). Strict match of physical characteristics is not required, however, and the other photographs only need a “sufficient resemblance to reasonably test identification.” I.D.; State v. Roberson, 445 So.2d 12 (La.App. 4th Cir.1983), writ 449 So.2d 1344 (La.1984).

The appellant contends the photographic line-up was unduly suggestive because his is the only photograph in which the subject has a tattoo. We disagree.

One of the witnesses stated at the suppression hearing that the man had a tattoo on his hand and that the minute she looked at the picture she saw the tattoo. However, she clarified her statement by saying that though she saw the tattoo,' it was the face that she remembered. Another witness stated that she had observed the tattoo; however, she did not notice the tattoo in the picture until it was pointed out to her at the suppression hearing. Also both witnesses had the opportunity to observe the defendant over an extended period of time.

The two witnesses from Godchaux’s testified also that a verification of the defendant’s signature was needed for the purchase. The witness who worked at Gordon’s Jewelers testified that she had asked for a picture I.D., called in the transaction and attempted to stall the defendant, when he tried to purchase items there. Both incidents were sufficiently unusual for witnesses to have remembered the defendant’s appearance when they were asked to identify him on the following day.

We have reviewed the photographs used in the photographic line-up and find none to be unduly suggestive. Although the tattoo is visible, it is hardly noticeable unless one particularly looks for it. Furthermore, considering the incidents at both stores and the opportunities for the witnesses to observe the defendant over an extended period of time, we find no error by the trial judge in denying the motion to suppress the identification.

This assignment of error is without merit.

ASSIGNMENT OF ERROR TWO

Defendant’s second assignment of error alleges that there was insufficient evidence to support the conviction.

Defendant was convicted of two counts of forgery, a violation of LSA-R.S. 14:72, which reads as follows:

Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.

In the instant case, the State offered evidence to prove that defendant had signed the name of Roy Chauvin on the stolen Visa card, used this card to purchase merchandise, and then signed Chauvin’s name to the sales receipt. This evidence was sufficient to prove the essential elements of the crime. Furthermore, the defendant was identified in court as the person who presented the stolen credit card and signed the sales slip. Viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence in the record for the jury to have found the defendant guilty beyond a reasonable doubt in accordance with the criteria set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment of error is without merit.

The conviction and the sentence are affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Claude ROBINSON.
    No. KA 1780.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   GARRISON, Judge.

The defendant, Claude Robinson, was charged by bill of information with theft over $500.00 by means of fraudulent representation in violation of LSA-R.S. 14:67 and with falsely representing himself as an attorney in violation of LSA-R.S. 37:213(5). Prior to trial, the State entered a nolle prosequi as to the violation of R.S. 37:213(5). As for the 14:67 violation, the defendant was found guilty as charged and was sentenced to serve four years at hard labor with credit for time served. The trial judge stated that this sentence is to run consecutively with any sentence imposed in Jefferson Parish for charges pending in those courts. Defendant appeals his conviction.

The facts of this case are as follows: The defendant received a phone call in May, 1982 from Conrad Norman who has been incarcerated in the Louisiana State Penitentiary at Angola since 1973. A fellow inmate had recommended the defendant to Norman as someone who could help Norman obtain a transfer from Angola to a satellite prison. According to Norman, the defendant told Norman in a second telephone conversation that he could have him transferred in two weeks to a month either to the State Police Barracks in Baton Rouge or to Jackson Barracks in New Orleans. The defendant also allegedly promised Norman that he could eventually have him placed in a work release program. The defendant told Norman that he would require a payment of $500.00 for his services. Norman telephoned the defendant the next week and told him to contact Norman’s parents for the $500.00 payment. Norman told his mother that the defendant was a paralegal working out of a lawyer’s office. However, the defendant refused to divulge the name of the lawyer.

At trial Norman’s mother, Mrs. Adele Norman, and his two sisters, Adeline and Christina, testified that they were contacted in May, 1982 by the defendant who told them that he was a lawyer and that he could have Conrad Norman transferred to a satellite prison and later placed in a work release program. At a second meeting at the Norman home, the defendant presented Mrs. Norman with a contract entitled “Contract for Investigation Work”. Mrs. Norman testified that the defendant told her that according to this contract, he would have Conrad Norman moved to a Baton Rouge satellite prison in two weeks for a fee of $500.00. Mrs. Norman gave the defendant a check for $500.00 but the defendant refused to accept a check. After cashing the check, Mrs. Norman gave the defendant $500.00 in cash. After this meeting, Mrs. Norman claims that the defendant called her and said that he had some papers for her. However, Mrs. Norman never saw these papers and never saw or heard from the defendant again. Mrs. Norman called the Louisiana Bar Association and was informed that no attorney was listed by the name of Claude Robinson.

At trial, Conrad Norman admitted that he had received several bad behavior write-ups while at Angola. This testimony was elicited by the defense to demonstrate the low probability of a transfer being granted to Norman.

A review of the record reveals that there are no errors patent.

In his only assignment of error, the defendant contends that the State failed to prove beyond a reasonable doubt either that the fraudulent representations were material or that an unauthorized taking had occurred. The defense argues that because the defendant had only agreed to make every effort he could, he therefore had fulfilled his promise under the contract.

As stated in the theft statute, an intent to permanently deprive the other of something of value is essential to the crime. This intent may be proved by circumstantial evidence. According to LSA-R.S. 15:438, 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. We conclude that the State has not proven fraudulent intent beyond a reasonable doubt in this case.

In the case of State v. Hoffer, 420 So.2d 1090 (La.1982), the defendant falsely represented himself as a licensed and bonded auctioneer. The defendant was ultimately unable to pay his debts arising from the auction. He was subsequently tried and found guilty of theft by fraudulent representation. The Louisiana Supreme Court reversed the defendant’s conviction holding that although the defendant’s non-payment of debts was consistent with the intention not to pay, it was not sufficiently indicative of intention not to pay to exclude beyond a reasonable doubt the intention to pay. Therefore, it was concluded that the State had failed to prove beyond a reasonable doubt that the defendant had the requisite intent to fraudulently deprive the auction owner of his property. Hoffer, p. 1093.

In the present case, the State argues that Hoffer is inapplicable because the defendant’s alleged misrepresentation as a lawyer was not his only misrepresentation. Additionally, the State claims, the Norman family relied on the defendant’s alleged unequivocal promise that he could have Conrad Norman transferred from Angola to a satellite prison and later to a work release program. The State also stresses that the intent element in this charge was a determination made by the jury after viewing the evidence as a whole.

Although the defendant’s alleged misrepresentation that he was a lawyer may have led the Norman family to believe that he had a greater ability to perform, the State did not present sufficient evidence of the defendant’s inability to effect a transfer or of his lack of effort in attempting to secure a transfer for Conrad Norman. Because this case is based on circumstantial evidence, this conviction must be reversed because the State failed to eliminate every reasonable hypothesis of innocence. The State did not prove by sufficient evidence that the defendant had the intent to fraudulently deprive the Norman’s of their property. As pointed out in the defendant’s brief, the State could have obtained records from the Louisiana State Penitentiary to demonstrate whether or not the defendant had made any efforts to obtain a transfer for Conrad Norman. If the defendant had made any effort at all, then his actions would not fall within the theft statute, LSA-R.S. 14:67.

For the reasons stated above, the defendant’s conviction is reversed.

REVERSED.

      . LSA-R.S. 14:67 states in part:
      Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

      . It should be noted that Mrs. Norman never signed the contract and that the contract did not state what the job was or that the job would be completed in two weeks.


text:
    STATE of Louisiana v. Michael J. GORDON.
    No. KA 1870.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Harold Douglas, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   GARRISON, Judge.

The defendant, Michael J. Gordon, was convicted of second degree murder in violation of LSA-R.S. 14:30.1 and was sentenced to life in prison without benefit of parole, probation or suspension of sentence. Defendant appeals.

On February 10, 1982, at approximately 10:50 a.m., Janice Spencer was found dead in her home on Thalia Street. According to Dr. Monroe Samuels, a pathologist who conducted the autopsy in this case, Spencer had died as a result of multiple stab wounds sometime between February 8th at 12:30 p.m. and February 9th at 12:30 p.m. Her body was found on the kitchen floor of her apartment. She had been bound and gagged with pieces of clothing. There were no signs of forced entry or burglary in the apartment and, other than a broken crock pot, the apartment was undisturbed.

The police were summoned to the scene by Sister Maureen Carroll of St. Monica’s School. Letoya McGary, the young daughter of the victim and a student at St. Monica’s, arrived at school an hour after school had started on February 10, 1982. As a secretary attempted to phone the girl’s mother, Letoya responded that her mother would not answer if called and that there was blood all over the floor. She also told the secretary that someone named “Bullock” had done this to her mother. The secretary summoned the principal, Sister Maureen Carroll, who accompanied the little girl to her home. Upon their arrival, Sister Maureen heard a radio playing and found Janice Spencer dead on the kitchen floor. She then called the police and went upstairs where she found three small children, Letoya’s sisters, who were wet and smelled of urine. After the police arrived, Sister Maureen accompanied Letoya to the police station where the little girl selected the defendant’s photograph from a lineup and identified him to police as the perpetrator of this murder.

Michael Gordon was arrested that afternoon at his home. A sweater, jacket and jeans worn by the defendant were seized and tested at the police crime lab. Some human blood stains were found on the sleeve of the jacket but the amount found was insufficient to obtain a blood typing. Police lab technicians were also unable to determine how long the blood had been on the jacket.

At trial, the State’s main witness was seven year old Letoya McGary. Letoya testified that she knew a man called Bullock whose real name was Michael Gordon. She identified the defendant as this same person. She also stated that her mother and Gordon were good friends. Letoya testified that on the evening of February 8, 1982, her mother and Bullock were fighting about money and that Bullock tied her mother up and stabbed her many times. She later repeated that she was positive that the defendant was the person who she had watched stab her mother. Letoya testified that after the stabbing, she went upstairs with her three younger sisters and remained there until the morning of February 10,1982 when she reported to St. Monica’s School.

The defense presented several witnesses who testified in the defendant’s behalf. The defendant’s employer, Larry Scott, and his wife, Mae, testified that the defendant had reported to work as usual on February 8th, 9th and 10th. Both Mr. and Mrs. Scott identified the clothes worn by the defendant on all three days. This testimony was elicited by the defense to show that the clothes worn by the defendant on the day of the murder contained only a small amount of blood which Mr. Scott claimed could have been the result of minor cuts sustained on the job.

Two friends of the defendant, Alfred Johnson and Frank Coleman, testified that they, along with Gordon and a man named Kenny White, went over to Janice Spencer’s apartment at approximately 8:00 p.m. on February 8, 1982. Gordon, Johnson and Coleman all testified that they had a friendly visit with Spencer that evening and that the men left at approximately 10:30 p.m. Gordon was allegedly dropped off at his home between 10:30 p.m'. and 10:45 p.m.

Several members of the Gordon family testified that the defendant returned home between 10:30 p.m. and 10:45 p.m. that evening and that he did not leave the house again until the next morning when he left for work.

A review of the record reveals that there are no errors patent.

Although not alleged as an assignment of error, the sufficiency of the evidence to support defendant’s conviction must be reviewed. State v. Raymo, 419 So.2d 858 (La.1982). Viewing the evidence in the light most favorable to the prosecution, the court must find that there was sufficient evidence presented so that a rational juror could find the 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, an eyewitness to the murder testified that the defendant was the person who tied up Janice Spencer and stabbed her repeatedly. The credibility of this witness and the credibility of alibi witnesses presented by the defense were determinations within the discretion of the jury. Viewing the evidence in the light most favorable to the prosecution, sufficient evidence was presented for a jury to find that the defendant was guilty beyond a reasonable doubt.

On appeal, the defendant alleges twelve assignments of error. However, assignments of error two, four, ten and eleven have not been briefed; therefore, they are deemed abandoned. State v. Smith, 430 So.2d 31 (La.1983).

ASSIGNMENT OF ERROR # 1

The defendant contends that it was reversible error for the trial court to deny defendant’s motion to have seven year old Letoya McGary evaluated by an expert psychologist or psychiatrist to determine, not whether she knew that it was wrong to tell a lie, but whether she was capable of testifying factually and accurately under the circumstances. According to the defense, the fact that the child stayed upstairs for two days after allegedly witnessing her mother’s murder indicates abnormal behavior. The defense argues that a psychiatric evaluation was needed to determine whether or not the child was capable of separating facts from fiction.

The record in this case indicates that the child was evaluated by a clinical psychologist prior to trial. After this evaluation, Dr. Edward Shwery reported that Letoya McGary was competent to testify in this trial. The trial judge questioned the witness and also determined that she was competent to testify. A trial judge is vested with wide discretion in determining the competency of a witness and, on appeal, his ruling is entitled to great weight. State v. Edwards, 419 So.2d 881 (La.1982).

Defendant makes the argument that Letoya McGary’s testimony was inconsistent with her testimony given at defendant’s first trial which resulted in a hung jury. Because the transcript of this first trial is not in evidence, it cannot even be considered.

The defendant did not show that a need existed to have Letoya McGary reevaluated to prove her competency to testify at trial. The trial judge properly denied this request and this assignment of error is without merit.

ASSIGNMENT OF ERROR # 3

In this assignment, .defendant argues that it was error for the trial court to overrule defendant’s objection to the admission of hearsay testimony from witnesses Jean Jones and Sister Maureen Carroll, the secretary and principal at St. Monica’s School. Specifically, the defendant contends that it was error for the trial court to allow these two witnesses to testify as to what Letoya McGary said to them on the morning of February 10, 1982.

LSA-R.S. 15:496 provides:

When the testimony of a witness has been assailed as to a particular fact stated by him, similar prior statements, made at an unsuspicious time, may be received to corroborate his testimony.

The State urges that the testimony of these two witnesses falls within this exception to the hearsay rule. The defense argues that this statute is inapplicable to this situation because the statute requires an assault on a particular facet of a witness’ testimony rather than an assault on the witness’ general credibility.

The transcript of the trial court proceedings indicates that on cross-examination, the defense made a strong effort to show that the child’s testimony at trial was inconsistent with her statements made to Jean Jones and Sister Maureen Carroll, the first persons to whom she had spoken after her mother’s murder. Therefore, this testimony was properly admitted to corroborate Letoya’s testimony at trial.

Additionally, the Louisiana Supreme Court has justified the admission of the first report of a crime by a child under LSA-R.S. 15:447, the res gestae exception to the hearsay rule. In these cases, the court has held that “the better rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication.’ State v. Prestridge, 399 So.2d 564 (La.1981); State v. Adams, 394 So.2d 1204 (La.1981); State v. Noble, 342 So.2d 170 (La.1977). While these cases all dealt with a child’s first report of a sex offense, the rationale of this rule is applicable to the instant situation. Jean Jones and Sister Maureen Carroll were the first people to whom Letoya McGary had the opportunity to speak following the traumatic event which she had witnessed. Furthermore, the hearsay testimony concerning Letoya’s witnessing of her mother’s murder was obviously the product of a shocking episode and was certainly not a fabrication. Therefore, this testimony was properly allowed and this assignment of error is without merit.

ASSIGNMENT OF ERROR # 5

The defendant claims that it was error for the trial court to deny the defendant’s motion for mistrial or to have the jury panel dismissed based upon the allegedly prejudicial remarks of juror number 217. During voir dire and prior to the swearing in of the jury, juror number 217 asked the trial court a question concerning the portion of the sentence for second degree murder which states that a defendant’s sentence of life imprisonment is to be served without benefit of parole, probation or suspension of sentence. Juror number 217 specifically asked if there were circumstances in which the person would not have to spend the rest of his life in jail if convicted. The trial judge responded that, if convicted, those were the conditions under which the defendant would be sentenced. When asked by the district attorney if this would influence his decision in any way, juror number 217 replied, “No. I just wish I could be sure it would be life imprisonment.” At that time, defense counsel moved for a mistrial or, alternatively, to have that jury panel dismissed. The trial judge denied defense counsel’s requests after receiving negative responses from the other prospective jurors when asked if they were influenced by the remarks of juror number 217. The trial judge also admonished the prospective jurors to disregard the remarks made by juror number 217.

In this juror’s questions, he merely restated the penalty provision of the statute dealing with second degree murder. Defense counsel has not shown any prejudice to the defendant because of this interchange between juror number 217, the trial judge and the district attorney. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 6

In this assignment, the defendant alleges that it was error for the trial court to deny defendant’s objection to the State’s alleged questioning of prospective jurors about the evidence and about whether or not they would require more evidence than the State presented in order to convict the defendant. Specifically, the defense objected to the State’s questions to the prospective jurors concerning whether or not they would be able to convict the defendant solely on the basis of a seven year old child’s testimony.

The allowance of this questioning was not error on the part of the trial judge. The district attorney did not disclose the nature of the child’s testimony other than that she was a witness to the crime. Rather, he was merely trying to ascertain if the jurors would automatically doubt the child’s testimony because of her age. This is distinguishable from the case cited by the defense in which counsel attempted to present hypothetical questions concerning the evidence of the case in order to ascertain the juror’s responses to these questions. State v. Clark, 325 So.2d 802 (La.1976). In this case, the district attorney was merely trying to ensure that a fair and impartial jury would be impaneled. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 7

The defendant argues that it was error for the trial court to overrule the defendant’s objection to the State’s use of leading questions in its examination of Le-toya McGary. Specifically, the defense objected to the State’s question in which Leto-ya was asked if she knew a man named Bullock to which she responded affirmatively and gave the man’s real name, Michael Gordon. First, this question arguably was not a leading question because the child had a choice of answers. Second, there has been no showing of prejudice to the defendant as a result of this question. If this question was leading, it should be noted that the determination as to whether a leading question is admissible is largely within the discretion of the trial court. State v. Prestridge, supra. In State v. Carthan, 377 So.2d 308 (La.1979), the Supreme Court pointed out that “the rule forbidding leading questions is not so rigid that it should not yield somewhat to the discretion of the trial judge in the examination of a very young or timid witness”. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 8

In this assignment of error, the defense contends that the trial court erred in sustaining the State’s objection to defendant’s questioning of a witness on cross-examination as to hearsay testimony. The defense claims that certain hearsay testimony was allowed by this same witness, Jean Jones, on direct examination by the State and that, therefore, the defense should also have been allowed the opportunity to elicit hearsay testimony from this witness. The particular question asked by the defense on cross-examination was whether or not Jean Jones had been told by Letoya McGary that the defendant was aware that Letoya was watching while he committed this violent act. The State’s objection to this question was sustained on the basis that it assumed something into evidence to which the witness had not testified. This objection was not sustained on hearsay grounds as suggested by the defendant. The trial judge did not err in sustaining the State’s objection to the defense’s question. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 9

The defense contends that the trial court erred in overruling the defendant’s objection to the State’s use of leading questions in its examination of Sister Maureen Carroll. The defense objected to the following exchange:

Q. Okay. Were you able to tell what photograph it was that Letoya picked out?
A. Whichever one it was I signed it immediately as she picked it out. But I didn’t look at it.
Q. In other words, the photographs were not displayed for your benefit but rather for Letoya?
Mr. Douglas: Your Honor, he’s leading. The Court: I know, but it’s the only way we’re going to get to the point. It’s not any harm to your client or to anybody.

As previously stated, the determination of whether a leading question is admissible is largely within the discretion of the trial judge. State v. Prestridge, supra. Because the defendant was not prejudiced by this exchange, the trial judge did not err in allowing this testimony. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 12

In his final assignment of error, the defendant argues that the trial court erred in denying his motion for mistrial after the State, in its closing argument, argued that defense witnesses had lied on the stand. Argument on the credibility of a witness is proper where the facts bearing on the witness’ credibility appear in the record. State v. Sayles, 395 So.2d 695 (La.1981). In his closing argument, the district attorney pointed out the many inconsistencies in the defense witnesses’ statements and suggested the possibility that these witnesses may have lied to help the defendant. The district attorney’s conclusion, drawn from these inconsistencies, that these witnesses were not credible was proper closing argument according to Code of Criminal Procedure Article 774. This assignment of error is without merit.

For the reasons stated above, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:30.1 states:
      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; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.


text:
    Shirley O’Neill, Widow of Marnel H. O’NEILL, Jr. v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Successor By Merger With Johns-Manville Products Corporation, the Flintkote Company, Donald Elder, Weldon Gebhard, Harold Kettenring, and ABC Insurance Company.
    No. CA 2203.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      M.H. Gertler, Cheryl A. Denney, New Orleans, for plaintiff-appellant.
    Jacob D. Landry, Landry, Watkins & Bo-nin, New Iberia, for defendant-appellee.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   GARRISON, Judge.

Plaintiff, Shirley O’Neill, widow of Mar-nel H. O’Neill, Jr., appeals from a judgment maintaining an exception of no cause of action filed on behalf of defendant, Flint-kote Company, and dismissing plaintiff’s action.

Plaintiff’s late husband, Marnel H. O’Neill, Jr., was employed as a machine tender in an asbestos mill of the Flintkote Company from 1947 to 1957. The plaintiff claims that her late husband was exposed to large quantities of asbestos dust and fiber during this period and that his death from lung cancer in 1981 was a direct result of this exposure. Therefore, this suit was filed by the plaintiff for the wrongful death of her husband and for the pain and suffering endured by her husband prior to his death. The defendants named in this suit were the Johns-Manville Corporation, the Johns-Manville Sales Corporation (successor by merger with Johns-Manville Products Corporation), the Flintkote Company, and the executive officers and liability insurer of the Flintkote Company.

Prior to trial, the Flintkote Company filed an exception styled “Exception of No Cause or Right of Action”. In this exception, Flintkote urged that because plaintiff's petition did not allege any “intentional acts” on the part of the defendant, the plaintiff’s exclusive remedy is under the Louisiana workmen’s compensation laws. La.R.S. 23:1032, as amended in 1976 by Act 147. The trial judge maintained the exception and dismissed plaintiff’s petition.

On appeal, the plaintiff argues that her petition sufficiently alleges “intentional acts” on the part of the defendant, Flint-kote Company, so as to state a cause of action under Louisiana tort law.

The leading case in Louisiana on the definition of an intentional tort is Bazley v. Tortorick, 397 So.2d 475 (La.1981), which states:

“Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.”

However, in the case of Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984), the Supreme Court held that the intent element of an employee’s intentional tort cause of action may be pleaded generally and without particularity. The Mayer case was based upon La.C.C.P. art. 856 which provides in part: “... Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.”

Paragraph Ten of plaintiff’s petition states as follows:

“That as a result of the foregoing acts the defendants are guilty of the following violations of law:
a) Failing to maintain a reasonably safe place to work;
b) Intentionally exposing employees to toxic effects of asbestos fibers and other harmful dusts;
c) Intentionally exposing employees to an aggravation of a diseased condition;
d) Intentionally concealing critical medical information from petitioner causing a continued exposure to disease and an aggravation of diseased condition;
e) Negligently and/or intentionally failing to provide petitioner with safety protection against the toxic effects of asbestos fibers;
f) Fraudulently concealing and withholding information regarding the dangers presented to petitioner in the use of asbestos fibers and the continued exposure to same.
Defendants committed these intentional acts knowing full well that plaintiff’s injuries were substantially certain to follow.”

The facts alleged in a petition are accepted as true for purposes of determining whether a plaintiff has sufficiently stated a cause of action for recovery under an intentional tort theory. In this case, we conclude that the plaintiffs petition sufficiently alleges intentional acts on the part of the defendant so as to satisfy the standard set in Bazley v. Tortorich, supra. Therefore, we hold that the trial judge erred in dismissing the plaintiff’s petition on an exception of no cause of action.

Accordingly, the judgment of the trial judge maintaining the defendant’s exception of no cause of action and dismissing the plaintiff’s petition is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Plaintiff's cause of action arose on the date of her husband’s death, April 14, 1981. Therefore, La.R.S. 23:1032 as amended in 1976 is the controlling law in this case. Smith v. Hurd, 408 So.2d 357 (La.App. 1st Cir.1981).