text:
    Howard SPURLOCK, Jr. et al. v. PRUDENTIAL INSURANCE COMPANY et al.
    No. 83 CA 0544.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Gregory Wilson, Baton Rouge, for plaintiffs-appellants Howard Spurlock, Jr., Debra S. Thomas, Hurel Lee Northern, Robert L. Spurlock.
    Horace Lane, Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins.
    John E. Cox, Baton Rouge, for defendant-appellee Valley Forge Ins. Co.
    James E. Moore, Baton Rouge, for defendant-appellee Cumis Ins. Society.
    Donald R. Smith, Baton Rouge, for defendant-appellee Prudential Property & Cas.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs appeal the trial court’s granting of summary judgment, contending that it erred in concluding that plaintiffs were not entitled to recover for their father’s wrongful death under their respective uninsured motorists insurance coverages.

By joint stipulation, the parties agreed to the following facts. On November 5, 1980, while pumping gasoline into his vehicle, Howard Spurlock, Sr. was struck by an automobile operated by Marcel Carter. As a result of the injuries sustained therein, he died. His children, plaintiffs herein, filed suit to collect the policy limits on their own respective uninsured motorists coverages for “injuries sustained” (i.e., wrongful death of their father). It was further stipulated that Howard Spurlock, St. was not a resident of any of the plaintiffs’ households.

The trial court, in its oral reasons for judgment, cited LaFleur v. Fidelity and Casualty Company of New York, 385 So.2d 1241 (La.App. 3rd Cir.1980), as being on all fours with the instant case. The court concluded that after looking at the policies and L.S.A.-R.S. 22:1406, no coverage was afforded plaintiffs herein for the wrongful death of their father as he was not a resident of any of the insureds’ (plaintiffs’) households. Based thereon, it granted the motion for summary judgment.

In brief, plaintiffs assert that this court is not bound by the decision in LaFleur, supra, as it does not adequately reflect the state of the law in Louisiana. In essence, plaintiffs ask this court to conclude that the wrongful death of an uninsured nonresident third-party is within their respective uninsured motorist policy’s definition of bodily injury and is thus compensable. We decline to do so.

While this court is well aware that stare decisis is not the law in Louisiana, we find the language and logic in LaFleur, supra, to be controlling herein. We believe that the Louisiana Legislature never intended our uninsured motorist statute to afford coverage for what an insured may be legally entitled to recover as his “wrongful death” damages, sustained because of some third-party’s death. Professor W. Shelby McKenzie supports such view in his article, Louisiana Uninsured Motorists Coverage — After Twenty Years, 43 La.L.R. 691, 710 (1983), wherein he states that:

“The UM claim must be based upon bodily injury to an insured; it cannot be predicated upon damages sustained by an insured as a result of bodily injury to someone who was not an insured under the policy.”

The parties herein have stipulated that Howard Spurlock, Sr. was not an insured under any of the policy’s terms. Based on this stipulation and the logic of LaFleur, supra, we find the trial court correctly granted the summary judgment.

For the above and foregoing reasons, judgment of the trial court is affirmed. Plaintiffs are to pay all costs.

AFFIRMED.

      . In LaFleur, the court held that a decedent who was neither a named insured, a relative residing in the named insureds’ households, nor occupying an insured vehicle at the time of the accident, was not an insured under the provisions of her children’s uninsured motorist automobile policies such that coverage was afforded her children therein for a wrongful death action arising out of their mother’s death.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Hoyt M. GARRICK, Jr. v. Cecelia Calamari GARRICK.
    No. 83 CA 0546.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      James S. Farmer, Bogalusa, for plaintiff.
    M. Reggie Simmons, Franklinton, for defendant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellant and plaintiff-in-rule herein, Cecelia Calamari Garrick, appeals the trial court’s denial of an increase in child support as well as its refusal to award an additional $300.00 arrearage allegedly mutually agreed upon.

On July 29, 1977, Hoyt M. Garrick, Jr., appellee and defendant-in-rule, was granted a separation from bed and board. In such judgment, appellee was ordered to pay child support in the amount of $100.00 per month. On November 6, 1978, appellee was granted a divorce a vinculo matrimo-nii. Such judgment reaffirmed the award of child support in the amount of $100.00 per month. Appellant subsequently filed a Rule To Show Cause why appellee should not have the amounts past due made execu-tory. She further asked why the child support now paid should not be increased to $350.00 per month.

The trial court, without stating its reasons, granted judgment in favor of appellant in the amount of $1,000.00 for child support past due. However, it let stand the original $100.00 child support award.

ASSIGNMENT OF ERROR NO. 1

Appellant first asserts the trial court erred in denying any increase in child support payments. It is well settled that one seeking to change or modify any child support award has the burden of showing that there has been a clear change in the needs of the person requiring it as compared to the person obliged to, pay it. L.S. A.-C.C. art. 227; and Flynn v. Flynn, 434 So.2d 1161 (La.App. 1st Cir.1983).

Herein, appellant has failed to prove or allege any change in circumstances which would dictate that an increase in child support be rendered. Contrarily, the record indicates that since the initial award, while she has married and enjoys an increased income as a result of her marriage, his financial circumstances remain basically unchanged.

We find, as the trial court evidently did, that appellant has failed to carry her burden of proof. She has failed to prove a change in the needs of the person requiring child support or the person obliged to pay it. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Appellant secondly asserts that the trial court erred in refusing to add an additional $300.00 arrearage for child support allegedly mutually agreed upon by the parties. She asserts that appellee agreed to pay an additional sum of $100.00 per month for the months of June, July, and August, 1982. Appellee states that such amount was discussed but that he based this payment upon the condition “if there was any way possible.”

It is well settled in Louisiana that parents may agree to modify child support payments fixed by judgment and that such agreement will be given effect if it is in the interest of the child. For such agreement to be effective, the parties must clearly agree to such modification. Moreover, the party relying on such agreement has the burden of providing the existence of such agreement. Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982). Herein, we find, as the trial court must have found, that appellant has failed to carry her burden of proof. As such, this assignment of error is without merit.

For the above and foregoing reasons, judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Gail GAUDET, Individually and as Natural Tutrix of the Minors, Eric Gaudet, III, and Brent Gaudet v. Stanley J. CROCHET, Karen Crochet, et al.
    No. 83 CA 0550.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Terry G. Breaux, Franklin, for plaintiff.
    Carlos E. Lazarus, Jr., Houma, for Fireman’s Ins. Co.
    James B. Supple, Franklin, for Aetna.
    Sidney J. Zeller, Acadiana Legal Service Corp., New Iberia, for Stanley J. Crochet and Karen Crochet.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Gail Gaudet (plaintiff) filed suit against defendants, Stanley J. Crochet, Karen V. Crochet, Aetna Casualty and Surety Company (Aetna), and Fireman’s Insurance Company of Newark, N.J. (Fireman’s). Her suit was brought individually and as the natural tutrix of the minors, Eric Gau-det, III, and Brent Gaudet, for damages resulting from an automobile accident which occurred on July 24, 1981, on Highway 90 between Patterson and Morgan City. Fireman’s was alleged to be plaintiff’s uninsured motorist carrier. Aetna allegedly was the automobile liability carrier for the Crochet’s. Aetna filed a motion for summary judgment asserting that its policy was not in effect at the time of the accident. The trial court granted this motion and dismissed Aetna from the suit. From this judgment, Stanley J. Crochet and Karen V. Crochet (Crochets) appeal.

Aetna contends that the policy had lapsed because its period was from July 18, 1980, to July 18, 1981, and the accident occurred on July 24, 1981. All parties concede that no renewal premium was ever paid. In her deposition, Pauline Cullum Agee, accounts processor for Aetna, stated that she mailed to the Crochets a renewal notice that was dated May 13, 1981. The deposition of Sherry Carlin Holler, superintendent of Aetna’s assigned risk department, reveals that Aetna does not have any documentation indicating that the premium notice was received by the Crochets.

Karen Crochet stated in her deposition that she did not receive the premium notice until Monday, July 26, 1981. She further stated that she had seen her insurance agent, Clyde Crappell, on the Monday before the accident which was July 19. Crochet testified that Crappell did not tell her that the policy had lapsed the day before. Instead, he informed hep that Aetna was willing to renew the policy but that since he had not received any notices from Aetna yet, she could wait to pay the renewal premium. Crochet stated that her address had changed from the address listed on the policy but that she had informed the post office of her change of address.

The Crochets contend that the trial court erred in granting the motion for summary judgment.

A motion for summary judgment should be granted if, and only if, it is shown that no genuine issue as to material fact exists and that the movant is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. All doubts as to the absence of a genuine issue will be decided in favor of a trial on the merits. La.C.C.P. arts. 966 and 967; Mashburn v. Collin, 355 So.2d 879 (La.1977); Broussard v. Henry, 423 So.2d 67 (La.App. 1st Cir.1982).

La.R.S. 22:636.1(E) provides:

No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply: (1) if the insurer has manifested its willingness to renew; or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.

In Ray v. Associated Indemnity Corporation, 373 So.2d 166 (La.1979), the insurer filed a motion for summary judgment contending that its policy had expired because it had mailed the insured a premium renewal notice but had not received payment. The insured denied receipt of the premium notice. The Louisiana Supreme Court found that unless the insurer timely gave prior notice to the insured either of an intent not to renew or of a willingness to renew, the policy will be renewed automatically regardless of whether a premium has been paid. The court further found that La.R.S. 22:636.1(E) requires communication by the insurer to the insured of the company’s willingness to renew. Ray, 373 So.2d at 168. The court held that the insured’s denial of receipt of the- renewal notice was sufficient to raise a genuine issue of material fact as to whether or not the insurer had communicated its willingness to renew such that summary judgment was inappropriate.

Although Aetna’s records indicate that a notice was mailed, Crochet denies having received it. Said denial raises a genuine issue of material fact sufficient to preclude the granting of a motion for summary judgment. Ray, 373 So.2d at 170. While both parties agree that Aetna manifested a willingness to renew on July 19, 1981, Aet-na had a duty to communicate with the Crochets prior to the expiration date of the policy. Although the Crochets changed address without notifying Aetna, they notified the post office and continued to check their mail at the old address. Serious factual differences remain unresolved in this case, i.e., whether the notice was actually mailed and whether the Crochets received this notice. Because genuine issues of fact exist as to whether or not Aetna communicated its willingness to renew, summary judgment was not appropriate in this case. Ray, 373 So.2d at 170; Cuccia v. Allstate Insurance Company, 262 La. 545, 263 So.2d 884 (1972). The summary judgment dismissing Aetna from this suit is reversed at Aetna’s costs, and this case is remanded.

REVERSED AND REMANDED.


author: CARTER, Judge:

text:
    Jimmy SHEPHERD v. Curtis MARTIN, et al.
    No. 83 CA 0585.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Michael A. Villa, New Orleans, for plaintiff, appellant.
    Iddo Pittman, Jr., Hammond, for defendant, appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Plaintiff appeals from a judgment of the trial court denying worker’s compensation benefits.

Malcolm Evans, an engineer, undertook construction of a home for his personal use. Curtis Martin, a full-time insurance agent and longtime friend of Evans, agreed to supervise the construction of the house for a fee of 10% above cost. Plaintiff, Jimmy Shepherd, and his partner, Michael Rogers, were employed to do a portion of the construction work on the house. On May 18, 1979, while working on the frame of the house, Shepherd fell some sixteen feet and was seriously injured.

Shepherd filed suit against Martin and Evans for damages alleging negligence/strict liability on their part and in the alternative for worker’s compensation benefits. The trial judge denied recovery on both the tort claim and the worker’s compensation claim.

Plaintiff has appealed only that portion of the judgment denying worker’s compensation benefits. Plaintiff argues on appeal: (1) the trial court erred in failing to find that plaintiff was employed by Martin under the act; and (2) the trial court erred in failing to find that Martin was in the trade, business, or occupation of constructing houses.

We note at the outset that plaintiff’s effort to establish his status as either an employee or independent contractor as to Martin is immaterial without first determining whether the construction of the residence was part of Martin’s trade, business, or occupation.

In order for a claimant to be eligible under the Worker’s Compensation Act, the services performed must be incident to or in the course of the employer’s customary or regular trade, business or occupation. Abadie v. Boudreaux, 398 So.2d 1253 (La.App. 4th Cir.1981). The usual test is whether the services constituted an integral part of defendant’s regular business; that is, whether the services were substantial, essential and recurring. Evans v. Naihaus, 326 So.2d 601 (La.1976); Landry v. Milchem, Inc., 376 So.2d 1020 (La.App. 1st Cir.1979). It is likewise well settled that the business in which the employer is engaged need not be exclusive inasmuch as an employer may, and many employers do, have multiple businesses, trades or occupations. Lyons v, Pirello, 194 So.2d 147 (La. App. 1st Cir.1966), writ refused, 250 La. 462, 196 So.2d 276 (La.1967). Whether or not one is engaged in a particular trade, business, or occupation is a question of fact to be determined by the circumstances of each case. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (La.1972).

In the case sub judice, the evidence is clear that Martin was an insurance agent for eighteen years. He testified that he was engaged in this business full-time, i.e. he worked 5'/a days per week. Having built his own home in 1965, Martin did, however, have some building experience. Because of this experience, he agreed to help supervise the construction of Evans’ house. Although Martin was compensated, both Martin and Evans testified that Martin agreed to supervise the construction mainly as a favor to Evans.

According to the arrangement between Evans and Martin, Evans had the final decision making authority for all matters and was responsible for all bills. Martin was responsible for hiring the workmen and supervising the construction. Martin would check on the building site early mornings and late afternoons.

It is clear that Martin’s action in supervising the construction was not incidental to his occupation as an insurance agent. Nor can it be said that this one-time involvement in the construction business constitutes a second occupation. Martin had never engaged in this type of enterprise prior to this one instance, and the record indicates that he had no plans to do so in the future.

We, therefore, find that Shepherd is not eligible for benefits because Martin was not in the trade, business, or occupation of constructing houses.

Because of our ruling on this point, we need not address plaintiff’s remaining assignment of error. Costs on appeal are to be paid by plaintiff-appellant.

AFFIRMED.


text:
    CAPITAL BANK & TRUST CO. v. Dorothy O’Connor WALL and Carolyn Jane Wall.
    No. 83 CA 0586.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Hampden R. White, Baton Rouge, for plaintiff-appellee Capital Bank & Trust Company.
    Stuart R. Thomson, Baton Rouge, for defendants-appellants Dorothy O’Connor Wall and Carolyn Jane Wall.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Dorothy O’Connor Wall and Carolyn Jane Wall (defendants) appeal the trial court’s decision which granted a summary judgment in favor of Capital Bank & Trust Co. (plaintiff).

Plaintiff sued defendants for $25,000.00 for damages allegedly resulting from defendants’ fraudulent misrepresentation. Its petition alleges that:

On or about September 17, 1982, Thomas Alexander, President of Power Packing Company, signed a check drawn on the corporation’s account at Capital Bank & Trust Co. in the amount of $25,-000.00, made payable to the order of Rudolf Wolff. Mr. Alexander, on that date, gave the check to his assistant, Perry Vass, for processing and mailing. Mr. Vass gave the signed check, with a sample letter showing Mr. Wolff’s mailing address, to Carolyn Jane Wall, in her capacity as secretary of Power Packing Company, and instructed her to mail the check to Mr. Wolff.
The defendant, Carolyn Jane Wall, gave the cheek to her mother, the defendant, Dorothy O’Connor Wall.
On or about September 20, 1982,' the defendant, Dorothy O’Connor Wall, presented the subject check for payment at Petitioner’s Main Street Branch, forging the endorsement of Marie Wolff on the back of the subject cheek with the knowledge that the endorsement of Rudolf Wolff on the back of the cheek was not the payee’s signáture. Because the check was for such a large amount, she was referred to the branch manager, Paul Villemarette. The defendant, Dorothy O’Conner (sic) Wall, fraudulently represented to Mr. Villemarette that she was Marie Wolff, wife of Rudolf Wolff; and that her husband had been injured in a work-related accident and said the check was payment for workmen’s compensation benefits to enable them to pay his hospital and doctors’ bills.
Mr. Villemarette refused to cash the check at this time and asked the defendant, Dorothy O’Conner (sic) Wall, to bring the various hospital bills to his office, at which time he would consider having her endorse the check and issue Petitioner’s checks to the various hospitals and doctors.
On or about September 21, 1982, the defendant, Dorothy O’Conner (sic) Wall, representing herself to be Marie Wolff, wife of the payee, Rudolf Wolff, again came to the Petitioner’s Main Street branch, Baton Rouge, Louisiana. She fraudulently advised Mr. Villemarette that her husband, Rudolf Wolff, insisted upon getting cash for the September 17, 1982 check in the amount of $25,000.00 and suggested that he verify the check by calling the office of the Power Packing Company. Mr. Villemarette then called the Power Packing Company to verify the authenticity of the check being presented by the defendant, Dorothy O’Conner (sic) Wall. He was advised by the defendant, Carolyn Jane Wall, the only person in the business office at that time, that Mr. Alexander was out, but she was familiar with the check, that it was authentic, in proper order, was due and owing to Rudolf Wolff, who had been injured on the job and the check represented compensation benefits.
At or about 12:28 P.M. on that date, Mr. Villemarette had the defendant, Dorothy O’Conner (sic) Wall, who had represented to him that she was Marie Wolff, wife of the payee, endorse the check and delivered $25,000.00 to her, thinking she was Marie Wolff, wife of the payee, Rudolf Wolff, and that the check had been properly endorsed by her alleged husband and payee, Rudolf Wolff.
The defendant, Carolyn Jane Wall, over the telephone on September 21, 1982, during the noon hour, fraudulently misrepresented to Paul Villemarette, Branch Manager of the Petitioner’s Main Street branch, that she was a person named Kathy Grant; the said defendant also fraudulently misrepresented to Mr. Villemarette that the September 17, 1982 check for $25,000.00, made payable to Rudolf Wolff, was a check for workmen’s compensation benefits and was in proper order to be cashed by the defendant, Dorothy O’Conner (sic) Wall, with whom she wrongfully conspired and whom she knew to be an imposter and/or forger of the endorsements of Rudolf Wolff and Marie Wolff on the said check.

Defendants’ answer consisted of a general denial which admitted only their residency. Plaintiff then filed a motion for summary judgment and attached the affidavits of Villemarette, Vass, and Alexander. Defendants answered said motion and attached their affidavits wherein they denied the allegations of plaintiff’s affidavits and further stated that they could not in detail answer every single allegation as this would prejudice them in their pending criminal case. The trial judge granted plaintiff’s motion, finding that the affidavits filed by defendants did not put at issue any material fact and that plaintiff was entitled to judgment as a matter of law.

Defendants say that the trial court erred in granting plaintiff’s motion for summary judgment.

A motion for summary judgment should be granted when it is shown that no genuine issue as to material fact exists and that the movant is entitled to judgment as a matter of law. The moving party has the initial burden of proving his entitlement to summary judgment. However, when a motion for summary judgment is made and supported, the adverse party cannot rest on the mere allegations or denials of his pleading but must set forth by affidavit or otherwise specific facts that show that a genuine issue for trial exists. The burden shifts to the opposing party to show that material facts are still at issue. La.C.C.P. arts. 966 and 967; Mashburn v. Collin, 355 So.2d 879 (La.1977); Waddell v. Bickham, 431 So.2d 59 (La.App. 1st Cir.1983); Broussard v. Henry, 423 So.2d 67 (La.App. 1st Cir. 1982); Schoemann v. Turnwood Development Corp., 421 So.2d 353 (La.App. 1st Cir.1982).

In the instant case, defendants did not oppose plaintiff’s motion for summary judgment by setting forth any facts which showed that a genuine issue for trial existed. Instead, they merely denied all of plaintiffs factual allegations and claimed the Fifth Amendment privilege against self incrimination. The United States Supreme Court has addressed this issue and stated that “while the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness ... declines to answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production.” United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 1552-53, 75 L.Ed.2d 521 (1983). Defendants’ assertion of the privilege is not a substitute for relevant evidence. Defendants failed to meet their burden of producing specific facts which would indicate that material facts were still at issue. Therefore, the trial court correctly concluded that no genuine issue for trial existed.

A cause of action for intentional fraudulent misrepresentation as to present or past facts exists in Louisiana. Bunkie Bank & Trust Co. v. Johnston, 385 So.2d 1264 (La.App. 3rd Cir.1980). The petition contains adequate allegations of fact to support a lawsuit for fraudulent misrepresentation. The affidavits of Villermarette, Vass, and Alexander, which completely support plaintiffs allegations as set forth above, have not been controverted in any way, so no issue of genuine fact was presented. Summary judgment in plaintiffs favor was proper as a matter of law. The judgment of the trial court is affirmed at defendants’ costs.

AFFIRMED.


author: CRAIN, Judge. SHORTESS, Judge,

text:
    Paul Dean MANNING v. BETTER WAY COATINGS, INC.
    No. 83 CA 0588.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 1, 1984.

      Thomas E. Gibbs and Robert H. Schmolke, Baton Rouge, for plaintiff-appellant Paul Dean Manning.
    John Dale Powers, Baton Rouge, for defendant-appellee Great Southwest Fire Insurance Co.
    Durwood McLaughlin, James Moore, Baton Rouge, for defendants-appellees Gregory J. English, Better Way Coatings, Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is a tort action in which plaintiff appeals the trial court’s grant of summary judgment in favor of the defendants.

FACTS

On July 7, 1981, the plaintiff, Paul Dean Manning, was injured while working on the roof of a Quonset hut (a prefabricated building with a domed roof). Plaintiff fell from the roof while .in the course and scope of his employment with Better Way Coatings, Inc., which is wholly owned by Gregory English.

On the day of the accident, the plaintiff and English went on top of the roof to “touch up” some coating that had been applied a day or so before. In order to enable the plaintiff to reach a spot that was down from the top of the roof, English squatted and held plaintiff’s free hand while plaintiff reached the spot with a long brush. During this maneuver, plaintiff lost his balance and began to slide off the roof. Both men ended up falling off the roof.

Plaintiff was injured in the fall and subsequently brought suit for damages in tort against Better Way Coatings, Inc. and English. Defendants filed a motion for summary judgment, which the trial court granted, concluding that there was no substantial dispute of material fact. Finding the law to be in defendant’s favor, the court dismissed plaintiff’s suit. Plaintiff appeals that judgment.

Plaintiff alleges on appeal that an issue of material fact does exist in this case— namely, the state of mind of Gregory English at the moment he released the plaintiff from his grip while on the roof.

La.R.S. 23:1032 makes worker’s compensation an employee’s exclusive remedy for a work-related injury caused by a co-worker, except for a suit based on an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981). According to Bazley the “meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” 397 So.2d at 482.

Plaintiff argues that English was substantially certain that plaintiff’s injury would follow from defendant’s actions. Plaintiff contends the conduct of English was intentional in that he made a conscious release of Manning while fully realizing the ultimate consequence of his action would be the fall of his co-employee.

A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Munson v. Safeco Insurance Company, 411 So.2d 578 (La.App. 1st Cir.1982).

In support of their motion for summary judgment, defendants submitted depositions of both the plaintiff and English. In his deposition, Manning points out the fact that English knew that he had fallen off the same roof once before when a jerk in a hose caused Manning to slip. Plaintiff claims that he informed English that due to his earlier fall, he didn’t want to go up on the Quonset hut again, although English testified that plaintiff had been up on that very hut the day before. Plaintiff at first stated in his deposition that he had been up on the hut three or four days earlier, but later claimed he could not remember if he had or not.

Both men agreed that English offered to hold plaintiff while he painted a difficult area to reach on the domed roof. Both agreed that English released his grip on Manning only after he saw that he was losing his own balance and was in danger of falling off as well.

In Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.1982), writ denied, 415 So.2d 953 (La. 1982), plaintiffs employer testified that he knew that there was a reasonable probability of an accident occurring in view of the hazardous work involved. Plaintiff claimed that he had requested safety equipment which his employer refused to supply. The question before the court was whether the employer’s knowledge could be the “substantial certainty” required by the Bazley decision. The Fourth Circuit held it was not the same, defining “certain” as “inevitable” or “incapable of failing”.

As the trial court pointed out, although English may have been negligent, both he and the plaintiff took the same risk. A person is presumed to act in such a manner as will not unnecessarily expose himself to physical harm. Lipscomb v. News Star World Pub. Corporation, 5 So.2d 41 (La. App. 2d Cir.1941). Obviously, English would never have gone up on the roof and held the plaintiff had he been “substantially certain” that the plaintiff would slip and fall off the roof, thereby taking English with him in the process. Thus, the “substantially certain” test of Bazley is lacking. Additionally, in determining intent in this case the state of mind of the defendant at the moment of release cannot be isolated from the whole process of attempting to reach the difficult spot to paint. Certainly at the moment of release defendant knew he must release the plaintiff with its inevitable consequences, or fall himself. His intent was not to injure the plaintiff, but to protect himself. Consequently, we find no error in the trial judge’s conclusion that there is no genuine issue of material fact in this case. There being no “intentional tort”, defendants are entitled to judgment as a matter of law. Fallo v. Tuboscope Inspection, 444 So.2d 621 (La.1984).

For the foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit is affirmed. All costs are to be paid by the plaintiff.

AFFIRMED.

SHORTESS, J., concurs and assigns reasons.

SHORTESS, Judge,

concurring.

I agree with the result and the majority analysis, so far as it goes. Plaintiff did not show that English knew to a “substantial certainty” that plaintiff would be injured if required to return to the roof.

I disagree, however, with the majority’s treatment of plaintiff’s one remaining allegation, i.e., that English knew to a substantial certainty that his act of releasing his grip on plaintiff’s hand would result in the injurious fall from the roof of the hut. This allegation spotlights an entirely different transaction between the parties, one which occurred while they were falling, and which must be considered in light of the separate intent which developed due to this change in circumstances.

The pleadings and depositions on file clearly show that when English released plaintiff, both were already falling off the roof. Since English was falling, it is clear that he was not securely anchored on the roof. He also fell off the roof, so it would be impossible for pflaintiff to prove that, had English held on, he would have been able to re-anchor himself and thereby save plaintiff. English’s act came after plaintiff’s fall and injuries were inevitable, so it could not have caused the injuries; without a causative link between the act and the injuries, it cannot be said that English knew the injuries would follow from his act.

The Bazley definition of intent encompasses both active desire and knowledge that the injurious result is substantially certain to follow from an act. For the consequences to follow from an act, the act must play some causative role in the occurrence of those consequences.

Finding no genuine issue of material fact, I agree that the facts support a judgment for defendant as a matter of law.

Accordingly, I concur.


text:
    Margie DuBOIS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Belle Chasse State School.
    No. 83 CA 0609.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Joel P. Loeffelholz, Jacob, Loeffelholz & Trestman, New Orleans, for appellant.
    Joanne Henig, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from the Civil Service Commission, State of Louisiana, Docket No. 2768, which sustained the dismissal of Margie DuBois, appellant herein.

In August of 1980, Margie DuBois, an eighteen year Civil Service employee with the State of Louisiana, went to work as an Executive Assistant I at the Belle Chasse State School. On February 27, 1981, Du-Bois received a letter of termination, signed by Gene I. Barrow, MR Facility Administrator III, to be effective at the close of her shift at 4:30 p.m. on Friday, February 27, 1981. The reasons for dismissal were (1) excessive tardiness and (2) failure to comply with, and follow a supervisory plan.

Appellant appealed her termination to the Civil Service Commission, stressing numerous deficiencies in the procedure and the merit of the action taken against her. Following the hearing, the Commission upheld appellant’s termination. From this ruling, appellant appeals.

Although appellant has assigned fourteen assignments of error, we will first address appellant’s allegation that the disciplinary action was not taken by the proper appointing authority. This issue is crucial to the appeal because any dismissal of DuBois by someone other than the proper appointing authority would have to be set aside.

The requirement that the discharge came from the appointing authority is to be strictly construed. Bennett v. Executive Dept. Div. of State Bldgs., 334 So.2d 551 (La.App. 1st Cir.1976); Bennett v. Division of Administration, 307 So.2d 118 (La.App. 1st Cir.1974), writ refused 310 So.2d 841 (La.1975); Tassin v. Louisiana Wildlife and Fisheries Com’n, 193 So.2d 812 (La. App. 1st Cir.1966), writ refused, 250 La. 371, 195 So.2d 645 (1967); Miller v. State Department of Health, 135 So.2d 570 (La. App. 1st Cir.1961).

Rule 1.4 of the Civil Service Rules defines “appointing authority” as “the agency, department, board, or commission, and the officers and employers thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service.”

LSA-R.S. 36:251 et seq. address the executive organization of the Department of Health & Human Resources (DHHR). One of the departments within DHHR is the Office of Mental Retardation. LSA-R.S. 36:258(1). With respect to the statutory authority granted to each office within DHHR, LSA-R.S. 36:257 provides:

“§ 257. Assistant secretaries
A. Each office within the Department of Health and Human Resources, except the office of management and finance, shall be under the immediate supervision and direction of an assistant secretary, who shall be appointed by the governor with consent of the Senate. Each shall serve at the pleasure of the governor and shall be paid a salary which shall be fixed by the governor, which salary shall not exceed the amount approved for such position by the legislature while in session.
B. Except as otherwise expressly provided in this Title, the duties and functions of each office and its assistant secretary shall be determined by the secretary, and all of such duties and functions shall be exercised under the direct supervision and control of the secretary.
C. Except as otherwise provided in R.S. 36:801, each assistant secretary shall employ, appoint, remove, assign, and promote such personnel as is necessary for the efficient administration of his office and its programs and the performance of its powers, duties, functions, and responsibilities, in accordance with applicable civil service laws, rules, and regulations, and with policies and rules of the department, all subject to budgetary control and applicable laws.
D. Each assistant secretary shall exercise all powers and authority granted to him in this Title subject to the overall direction and control of the secretary.”

Clearly, by statute, the assistant secretary for each' office within DHHR is the appointing authority.

Statutory grant of authority, however, is not the sole source of power for an appointing authority. The Civil Service Rules contemplate a delegation of authority. Civil Service Rule 1.4. “Authentic acts delegating appointing authority or certified copies thereof may be offered into evidence without further proof and shall be accepted as prima facie proof of the recitals contained therein.” Civil Service Rule 13.19(t).

In the instant case, there is no allegation that Gene I. Barrow is an assistant secretary, nor is there any proof to that effect. Furthermore, the only evidence introduced before the Commission to establish a delegation of authority from the statutory appointing authority to Mr. Barrow is Rule Book Directive No. Supt. 52-R-1-4-80. This directive was issued by Mr. Barrow and indicates that facility policy allows the named personnel (including himself) to execute disciplinary action. We find that this directive falls short of establishing a delegation of authority by the appointing authority to Mr. Barrow.

In all correspondence in the record, Mr. Barrow and others refer to his title as MR Facility Administrator III. Barrow signed Ms. DuBois’s letter of termination as MR Facility Administrator III. However, when Barrow issued the directive, he referred to himself as “Superintendent.”

We find nothing in the record to indicate that Barrow was ever named superintendent, and Barrow was not called to testify before the Commission to verify such.

DHHR, however, strenuously contends that Barrow is the appointing authority and that appellee stipulated to the introduction of the directive. DHHR maintains that it did not pursue the matter of establishing that Mr. Barrow was the appointing authority because counsel for the department understood that to be a stipulated fact.

Although counsel for plaintiff stipulated to the authenticity of the rule book directive, we do not believe that plaintiff stipulated that Mr. Barrow was the appointing authority. Furthermore, the Civil Service Commission ruled on the issue, which would have been unnecessary if such had been a stipulated fact.

However, it is obvious that confusion existed at the hearing before the Commission concerning the necessity of establishing the identity of the proper appointing authority. Therefore, in the interest of justice, we remand the case to the Civil Service Commission to allow DHHR the opportunity to present additional evidence in this regard.

Also, because of this contention, it is not necessary to discuss appellant’s remaining assignments of error.

For these reasons, the case is remanded for action consistent with this opinion. The Department of Health and Human Resources is assessed costs of this appeal in the amount of $50.00.

REMANDED.

      . LSA-R.S. 36:801 contains no exceptions applicable to the Department of Health and Human Resources.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Gregory Charles LeBEOUF.
    No. 83-KW-0692.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      John Sinquefield, Asst. Dist. Atty., for the State.
    Clay Calhoun, New Orleans, for accused.
    Before LOTTINGER, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

On November 4, 1983, the Louisiana Supreme Court granted writs and remanded the above matter to this court for briefing, argument, and a written opinion. 440 So.2d 745 (La.1983). This court had previously denied appellant’s request for supervisory writs. For the reasons stated below, we now grant appellant’s request for supervisory writs.

In 1973, defendant, Gregory Charles Le-Beouf, was indicted for the crime of second degree murder. He pled not guilty and not guilty by reason of insanity.

On May 31, 1974, a contradictory hearing as to LeBeouf’s sanity was held. Noting that “the matter of present sanity has already been submitted and passed on by the court” and that “the accused was presently sane,” Judge Daniel W. LeBlanc nevertheless permitted the defense to elicit testimony from Dr. Francisco Silva “for possible use at the trial or something regarding the matter of insanity at the time of the commission of the offense.” On conclusion of the hearing, when asked by the assistant district attorney, Frank Saia, whether the court would rule “on that today or are you taking it under advisement?”, Judge Le-Blanc answered, “I don’t rule on insanity at the time of the commission of the offense. The jury does.”

On July 12, 1974, with Michael Cava-naugh representing LeBeouf and assistant district attorney Alton Moran representing the State, the matter again came into court. The following colloquy took place:

“MR. CAVANAUGH: Your Honor, I had previously pled Mr. LeBouef, or he has pled himself, not guilty and not guilty by reason of insanity. We again tender his plea of not guilty by reason of insanity.
“MR. MORAN: The District Attorney’s office will accept this plea based on Dr. Silva’s report and the report of Dr. Steele that Mr. Cavanaugh will file as soon as it’s in proper form.”
“THE COURT: I wish I had some discretion in this matter.
“MR. CAVANAUGH: I understand that you will—
“THE COURT: I don’t have any now. He is charged with murder?
“MR. CAVANAUGH: Yes.”

Judge LeBlanc then recited the provisions of LSA-C.Cr.P. Art. 654 regarding the possible commitment of a felon found not guilty by reason of insanity in a non-capital case and, noting the need for a contradictory hearing, scheduled same. Minutes of the trial court clearly verify that LeBeouf s plea was accepted by the State and that a further hearing was scheduled.

On July 26, 1974, pursuant to Judge Le-Blanc’s request, both counsel agreed to submit the matter of LeBeouf’s possible commitment based on reports previously rendered. Following that agreement, the court found LeBeouf dangerous to himself and others and ordered him committed until safe.

In 1978, LeBeouf sought release through various sanity proceedings which were successfully opposed by the State.

In 1982, LeBeouf again sought release. After hearing testimony, Judge Michael E. Ponder found that, despite being dangerous, uncontroverted medical testimony established that LeBeouf was not mentally ill and was entitled to be released. Judge Ponder noted, in ordering LeBeouf’s release, that

“where the plea of not guilty by reason of insanity was offered and accepted by the District Attorney’s Office, and accepted by the trial judge of that matter, it may have been convenient under the circumstances there, it has now come back to haunt both the District Attorney’s Office, the — uh—trial judge, I assume, and perhaps even society in the long run.”

Objecting to LeBeouf’s release, the State sought supervisory writs which were granted by this court on February 7, 1983, Case No. 83 KH 0095. This court, noting LeBeouf was not an acquitee and had not been subjected to jeopardy, ordered the defendant transferred to prison and remanded the matter to the district court for trial.

Subsequent to our remand, LeBeouf filed a motion to quash the indictment on the ground of double jeopardy. At a hearing held April 15, 1983, transcripts of the 1974 hearings were introduced into evidence and the testimony of Judge LeBlanc, Michael Cavanaugh, and Alton Moran was taken.

A careful review of both the 1974 transcripts and the testimony taken April 15, 1983, reveals that, beyond all doubt, the State, as per its custom at that time, accepted LeBeouf’s plea of not guilty by reason of insanity and that all parties, including Judge LeBlanc, believed that a valid verdict had been reached and that LeBeouf had faced conviction consequences which included the possibility of being incarcerated in a mental institution for the rest of his life.

On May 6, 1983, Judge Ponder ruled on LeBeouf’s motion to quash. Noting that LeBeouf’s plea had been accepted and that he, as well as those testifying on April 15, 1983, believed the matter closed, Judge Ponder nevertheless cited this court’s February 7, 1983, ruling as controlling and denied the motion to quash.

From that denial, LeBeouf sought supervisory writs which were denied by this court on July 21, 1983, Cáse No. 83 KW 0692. Our denial of writs stated:

“WRIT DENIED: The testimony of defendant’s expert witness at the continuation of the sanity commission hearing to determine the capacity of defendant to proceed at trial did not cause jeopardy to attach. The witness was allowed to testify as a courtesy to defendant and was in the nature of a discovery device. As the trial judge properly noticed, the issue of insanity at the time of the offense was a question for the jury, the right to which defendant did not waive. The trial judge made no determination as to a factual basis for defendant’s plea.
“The alleged plea bargain nature of defendant’s plea did not cause jeopardy to attach. The proceedings and sentence were void ab initio. See State v. Leonard, 394 So.2d 1214 (La.1981). Moreover, we note that no detrimental reliance has been urged by defendant.”

LeBeouf proceeded to seek supervisory writs from the Louisiana Supreme Court, Case No. 83-KK-1877. On November 4, 1983, the Supreme Court granted writs and remanded the case to us.

A searching review of the entire record convinces us that our previous denial of writs was erroneous. While Judge Le-Blanc did note, on May 31, 1974, that the jury, and not he, would rule on insanity at the time of the offense, any need for such a ruling was obviated on July 12, 1974, when the State clearly accepted LeBeouf’s plea of not guilty by reason of insanity. The trial court’s minutes reflect as much.

From the moment the State accepted Le-Beouf s plea, any sanity hearings or psychiatric evidence dealt not with defendant’s capacity to stand trial, which was now precluded, but with defendant’s need to be incarcerated for the treatment or not.

Our previous reliance on State v. Leonard, supra, was misplaced. In Leonard, the defendant was ultimately required to stand trial because there had been no plea bargain. In the present case, not only did the defendant and State agree to a plea, but the defendant faced possible conviction consequences and in fact was incarcerated in a mental hospital for nine years, until the State had no further legal basis to so incarcerate him as being mentally ill.

Essentially, the State urges that because LSA-C.Cr.P. Art. 558.1, which permits trial courts to find defendants not guilty by reason of insanity without trial, was not enacted until 1983, the trial court could not and did not try LeBeouf and had no authority to find him not guilty by reason of insanity. Hence, the nine years of incarceration endured by LeBeouf is meaningless and LeBeouf may be tried.

We note that the trial court did not find LeBeouf guilty or not guilty. Rather, the State stipulated that LeBeouf was not guilty by reason of insanity and the court did not sentence LeBeouf but ordered him incarcerated for treatment. We cannot permit the State to agree to a plea bargain, allow the defendant to face and endure nine years of conviction consequences, and then deny the plea bargain. The State’s arguments are, at best, disingenuous and the State is estopped to deny its own agreement.

For the reasons stated hereinabove, defendant’s application for supervisory writs is granted. The indictment is hereby ordered quashed and Gregory Charles Le-Beouf is ordered released from custody.

WRIT GRANTED. INDICTMENT QUASHED AND DEFENDANT ORDERED RELEASED FROM CUSTODY.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Stan PHILLIPS (Stanley Rogale Phillips).
    No. 83 KA 0731.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Bernard E. Boudreaux, Jr., Dist. Atty., James R. McClelland, Asst. Dist. Atty., Franklin, for appellee.
    Joseph R. Streva, Jr., Morgan City, for appellant.
    Before COVINGTON, LOTTINGER and EDWARDS, JJ.
   COVINGTON, Judge.

On this appeal the defendant, Stanley Rogale Phillips, complains that the sentence imposed on him is excessive and is more severe than the sentence imposed on the co-defendants.

The defendant and his brother, Joey Phillips, were initially charged with the crimes of burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2 and simple burglary in violation of LSA-R.S. 14:62. Upon arraignment, both defendants pled not guilty. Thereafter each defendant was additionally charged with the crime of malfeasance in office in violation of LSA-R.S. 14:134.

Stanley Phillips and his co-defendant pled guilty to the malfeasance charge and each was sentenced to serve three years at hard labor. Upon learning that another co-defendant, Kenneth Polk, had received a suspended sentence of a lesser length in a related case, Stanley and Joey moved to amend their sentences.

After a hearing on the motion to amend, the trial judge reduced the sentence of Joey Phillips to eighteen months and suspended the sentence, placing him on probation. The trial judge also reduced the sentence of Stanley Phillips from three years to one year, at hard labor. The sentence was not suspended.

It is this sentence which is on appeal. Joey had originally appealed his sentence; but, upon receiving a suspended sentence, abandoned his appeal.

The instant case arises from a burglary staged by several police officers of the Town of Patterson. While off duty in the early morning hours of June 12, 1982, the officers were engaged in drinking alcoholic beverages in the apartment of Stanley Phillips. Upon hearing what they took to be gunshots, they went to investigate. In the course of their investigation, they entered a nearby home, which appeared to have been broken into, to check for a possible burglary. During this investigation, the weapon of Kenneth Polk was discharged accidentally, damaging a chair in the home. In an attempt to cover up the damage, the officers removed certain property from the premises and vandalized the home to make it appear as though a burglary had been committed. Subsequently, the stolen things were hidden by Joey Phillips, who at the time was an employee of the sheriffs office. Joey did not report the crime. The officers were later apprehended and the instant charges were filed, resulting in the guilty plea and the sentence of which the appellant complains.

At the original sentencing hearing, the trial judge examined various mitigating and aggravating factors pursuant to LSA-C.Cr.P. art. 894.1. The judge specifically noted that Stanley Phillips had no prior criminal record, was employed and was the primary support of his three young children. He also noted that the defendant breached the public trust placed in him as a police officer, commenting:

“You are ... in need of correctional treatment that can only be provided by your commitment to an institution, and any lesser sentence than that which I have imposed would deprecate the seriousness of the offense. Further, any lesser sentence would not have the desired effect of deterring further actions by yourselves or any other officers of the law from a repetition of such conduct.”

The record reflects that the trial judge complied with LSA-C.Cr.P. art. 894.-1, by stating for the record the reasons for the sentence. When the trial judge has complied with LSA-C.Cr.P. art. 894.1, it then becomes necessary for us, as a reviewing court, to focus our review upon whether the trial judge has abused his sentencing discretion. State v. Smack, 425 So.2d 737 (La.1983). In so doing, this Court must consider, in light of the statutory criteria, the circumstances of the crime, the character of the defendant and the trial judge’s reasons for the particular sentence. State v. Green, 418 So.2d 609 (La.1982).

Stanley Phillips is 27 years of age, with no prior criminal record. At the time of the commission of the crimes, he was a police officer in the Town of Patterson. Stanley was the instigator of the crimes, was actively involved in the commission thereof, and was the one who arranged for Joey, his brother, to get involved in his crimes, by having him (Joey) hide the stolen things. The maximum penalty for malfeasance in office is five years with hard labor and a fine. LSA-R.S. 14:134. Stanley was sentenced to only one-fifth of the maximum imprisonment, a term of one year.

We do not consider the punishment imposed in the instant case so disproportionate to the crime committed as to shock our sense of justice. Defendant was employed in a position of trust, as a police officer, which he breached. Under the circumstances of this case, we are unable to say that the trial judge abused his discretion in sentencing Stanley Phillips to one year at hard labor. We do not find the defendant’s sentence excessive.

Defendant, nevertheless, argues that the trial court abused its discretion in imposing a more severe sentence on him than on his co-defendants. This argument is meritless. There is no constitutional or statutory requirement that co-defendants receive equal treatment. State v. Quimby, 419 So.2d 951 (La.1983); State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983). Indeed, in State v. Sepulvado, 367 So.2d 762, 766 (La.1979), the Supreme Court remarked:

In providing a wide range of criminal sanctions (punishment) for violations of a statute, the legislature obviously intends that the [trial] judge shall exercise his sentencing discretion to impose sentences graded according to the individualized circumstances of the offense and of the offender.

Disparity in sentences of co-defendants with similar backgrounds, charged with similar participation in identical crimes is merely one factor to be considered by the reviewing court along with all other appropriate considerations when there is no apparently reasonable basis in the record for the disparity. State v. Sims, 410 So.2d 1082 (La.1982).

There is ample justification in the record for the disparity of sentences of the co-defendants in the instant case. The trial judge properly looked to the particular defendant in each of the cases and appropriately tailored the individual sentence to the individual defendant. The record, from our review thereof, fully justifies the disparity in the sentences of these co-defendants.

The trial judge noted, in reasons for sentencing at the hearing on the motion to amend the sentence, that he was, under the circumstances, unable to give equal treatment to Stanley and Joey Phillips. He clearly explained his basis for his different treatment of the co-defendants.

For the reasons assigned, the sentence is affirmed.

AFFIRMED.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Leoncio COSTILLO.
    No. 83 KA 0858.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      René I. Salomon, Asst. Atty. Gen., Baton Rouge, for plaintiff.
    Michael 0. Hesse, St. Francisville, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an “out-of-time” criminal appeal granted by a district court on an application for post conviction relief.

PROCEDURAL FACTS

On January 25, 1974, the West Feliciana Parish Grand Jury indicted Leoncio Costillo for the second degree murder of Billy Vin-ing at the Louisiana State Penitentiary at Angola on July 11, 1973. Costillo was tried by jury on October 15, 1974, and was found guilty. He personally waived sentencing delays and was sentenced to life imprisonment in the custody of the Louisiana Department of Corrections without eligibility for parole, probation or suspension of sentence for twenty years. No appeal was taken from the conviction and sentence.

On May 9, 1983, Costillo filed an application for postconviction relief (La.C.Cr.P. art. 924 et seq.) in the district court contending that he was denied his right to an appeal by the inaction of his court-appointed counsel. On May 16, 1983, the district court judge granted Costillo an “out-of-time” appeal to the Louisiana Supreme Court. On July 20, 1983, the Louisiana Supreme Court transferred the “out-of-time” appeal to this court because the order of appeal was entered after June 30, 1982. La. Const, of 1974, art. V, § 5(E).

Costillo then perfected this “out-of-time” appeal to this court. He asserts the following three assignments of error:

(1)Denial of the effective assistance of counsel because of a conflict of interest, because his court-appointed counsel was the husband of the assistant district attorney who prosecuted him;
(2) Failure of the district court to grant his motion for a directed verdict at the close of the State’s case; and
(3) The verdict of guilty is contrary to the law, evidence and justice because of insufficient evidence to convict.

DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

Costillo contends for the first time in this “out-of-time” appeal that he was denied the effective assistance of counsel by a conflict of interest because his court-appointed counsel, Stanley E. Branton, was the spouse of one of the prosecutors in the case, Cynthia Picou Branton.

The court minutes indicate that when Costillo was arraigned on February 1, 1974, he was represented by William E. Woodward. Woodward subsequently filed a motion to quash and a bill of particulars on behalf of Costillo. The bill of particulars was answered by Leon A. Picou, Jr., the district attorney. The transcript of the trial shows that the State was represented by Leon A. Picou, Jr., W. Lee Overton and Cynthia Picou Branton. Costillo was represented by Stanley E. Branton. There is no evidence in the record to show that Stanley E. Branton and Cynthia Picou Branton were husband and wife. This issue cannot be adjudicated until evidence is presented to establish this relationship. Accordingly, this issue must be remanded to the district court for the taking of evidence and for a decision. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Willis, 438 So.2d 605 (La.App. 3rd Cir.1983); State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983), writ denied, 433 So.2d 721 (La.1983). In reaching its decision on this issue, the district court should consider State v. Morrow, 440 So.2d 98 (La.1983) and State v. Kahey, 436 So.2d 475 (La.1983) and the authorities cited therein.

SUFFICIENCY OF EVIDENCE

Costillo contends that the record contains insufficient evidence to convict. A claim of insufficient evidence to convict may be raised in an application for post conviction relief. La.C.Cr.P. art. 930.3(1); State ex rel. Ferrand v. Blackburn, 414 So.2d 1207 (La.1982). However, this claim has been raised for the first time in this court in this “out-of-time” appeal. This claim was not asserted in the original application for post conviction relief filed in the district court, although it could and should have been. La.C.Cr.P. art. 926(B)(5). Because this issue was not asserted or ruled upon in the district court, we shall remand it to the district court for consideration and appropriate action.

Costillo also contends that the district court committed error by failing to grant his motion for a directed verdict of acquittal at the close of the State’s case. The trial court transcript shows that at the close of the State’s case in chief, counsel for the defendant moved for a directed verdict of acquittal. This motion was denied and a bill of exceptions was reserved. Costillo then presented the testimony of five witnesses. In rebuttal, the State presented the testimony of two new witnesses and recalled two previous witnesses for additional testimony. When a defendant presents evidence after the denial of a motion for acquittal based on lack of sufficient evidence at the end of the State’s case in chief, his motion must be judged on the entirety of the evidence in the record and not just the evidence initially presented by the State. State v. Hicks, 376 So.2d 118 (La.1979); State v. Smith, 332 So.2d 773 (La.1976). In this posture, this claim is the same as the claim of insufficient evidence to convict.

DENIAL OF RIGHT TO APPEAL

In his application for post conviction relief in the district court, Costillo alleged the following facts to support his claim that he was denied the right to appeal:

Petitioner has a limited education and a limited knowledge of law. Petitioner was under the impression that an appeal was automatically prepared and filed by court-appointed attorney, once convicted and sentenced. Mr. Stanley E. Branton, trial attorney in this matter, never notified that he would not pursue an appeal, or advise Petitioner to seek assistance in the preparation of an appellate brief elsewhere. Petitioner did not know what steps to take in order to appeal the conviction and sentence until he consulted with another inmate, Walter Burnette, D.O.C. 83061, Camp A — Dorm. # 2, Angola, Louisiana on or about December 10, 1982, approximately eight (8) years and two (2) months after date of conviction.

The district court judge summarily granted Costillo an “out-of-time” appeal without giving the State an opportunity to answer the application and/or present evidence on contested factual issues.

La.C.Cr.P. art. 927(A) provides as follows:

If an application alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file an answer within a specified period not in excess of thirty days. (Emphasis added).

Pursuant to La.C.Cr.P. art. 929, a district court may grant a summary disposition on an application for post conviction relief only after the required answer by the State has been filed. Because the district court failed to comply with Articles 927 and 929 and because a remand of this cause is ordered for the other assignments of error, this issue will also be remanded for reconsideration and compliance with the procedures required by law.

DECREE

For the foregoing reasons, this cause is remanded to the district court for further proceedings in accordance with the views expressed herein.

REMANDED.

      . The court minutes show that Costillo was represented at the trial by William E. Woodward and Stanley E. Branton, but there is no mention of Woodward in the trial transcript.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Robert G. STAFFORD.
    No. 83 KA 1039.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    William J. Knight, Asst. Dist. Atty., Franklinton, for State.
    Thomas J. Ford, Covington, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, Robert G. Stafford, was convicted of indecent behavior with a juvenile, a violation of La.R.S. 14:81, and sentenced to five years at hard labor with the Department of Corrections. He appealed his conviction and sentence, requesting only that this court review the record for patent error. We affirm.

Defendant was temporarily living with his sister, her husband and her two children, one a two-year old girl. The mother and her husband left the children with the defendant for a short period of time. The two year old, who had been asleep when the mother left, was awake and crying when she returned. She spent a fretful night. The next morning, after blood was found in the diaper, she was taken to a hospital where physical examination revealed she had been molested. The defendant was later charged and he confessed. At trial he repudiated the confession claiming intimidation by the stepfather and law enforcement officials. The court found the confession to be free, voluntary and legally obtained.

We have examined the record for errors patent on the record and have found none.

For these reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Joseph BANKS.
    No. 83 KA 1070.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Leon A. Picou, Jr., St. Franciville, for plaintiff.
    Michael 0. Hesse, St. Francisville, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Joseph Banks, was charged by bill of information with simple escape, in violation of LSA-R.S. 14:110. After trial by jury, defendant was found guilty of attempted simple escape. He was sentenced to one year imprisonment in the custody of the Department of Corrections, to run consecutively to any sentence he was then serving. Defendant now appeals his conviction and sentence, alleging as his sole assignment of error that the evidence presented at trial is insufficient to support the conviction.

FACTS

On March 29, 1974, after the 5:00 p.m. check, Angola Penitentiary officials discovered that an inmate, later determined to be defendant, was missing. After searching different areas of the compound where officials thought defendant might be found, prison officials were unable to locate defendant and declared him “officially missing and escaped” at 7:20 p.m. on March 29, 1974. For four days, fifteen prison officials searched the penitentiary grounds twenty-four hours a day for defendant.

Then on April 2 at approximately 4:45 p.m., prison guards located defendant in the cannery. At the time of his apprehension, defendant had on his person maps, a hand gun, his identification card, and a wallet containing $10.00. In a hidden area of the cannery where defendant was found, officials found a knife, candy, food, books, pillow cases, a blanket, some old clothes, and maps of the penitentiary grounds and of the state. While the guards were reviewing defendant’s possessions, he ran toward the fence, then stopped and returned to the guards. A guard tower was located at the fence, where the guard on duty held a rifle.

ARGUMENT

In brief, defendant argues that the state failed to prove the element of general criminal intent necessary to support the conviction. Defendant contends that, as his testimony at trial reflected, he fell asleep on the afternoon of March 29, 1974, and was simply afraid to return for fear of an escape charge. Defendant contends that the reason he ran when apprehended on April 2 was that he was confused and had seen a guard with a pipe in his hand. Defendant cites State v. Liggett, 363 So.2d 1184 (La. 1978) in support of his position.

In our review herein, we are bound by the standards enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, the reviewing court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Johnson, 442 So.2d 719 (La.App. 1st Cir. 1983).

LSA-R.S. 15:438 provides:

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

Intent, however, need not be proven as a fact; it may be inferred from the circumstances of the transaction. LSA-R.S. 15:445.

In the instant case, defendant was found in possession of items, which in the ordinary course of human experience, can be said to be “tools” of an escapist. Defendant's possession of these items when coupled with his absence for four days and his flight upon apprehension, sufficiently establish defendant’s intent to escape.

Defendant relies on the facts of State v. Liggett, supra, wherein the defendant had failed to timely report to his work assignment and was later located by prison guards hiding in the prison cannery. The court in Liggett found no evidence of circumstances which indicated that Liggett, in the ordinary course of human experience, adverted to the prescribed criminal consequences as reasonably certain to result from his act.

The facts in the instant case are much stronger in favor of the prosecution than those of Liggett. In Liggett, the defendant was missing for less than one day; in the case sub judice, defendant remained hidden for four days. In Liggett, the defendant was found lying down with his hands on his stomach and a pocket novel to read; defendant in the present case was found with money, extra clothes, weapons, and food. Additionally, Liggett neither struggled nor attempted to get away from the search crew; the defendant in the instant case, broke away from prison guards and darted toward the fence.

We find the facts of State v. Liggett, supra, clearly distinguishable from the facts of the instant case. Additionally, there is sufficient evidence of facts and circumstances from which general criminal intent, an essential element of the crime of attempted simple escape, can be inferred.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In 1974, defendant was represented by appointed' counsel, who did not pursue any appeal on behalf of defendant at that time. However, no waiver of defendant’s right to appeal and to be represented by counsel was made. A writ of habeas corpus was filed on behalf of defendant asserting a denial of defendant’s constitutional right to counsel on appeal. On July 22, 1983, the district court granted defendant an out-of-time (delayed) appeal.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Rickey PHILLIPS.
    Nos. 83 KA 1092, 83 KA 1093.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Granted in Part July 17, 1984.

      Ossie B. Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by defendant of his conviction and sentence for armed robbery.

Defendant, Rickey Phillips, was charged by bill of information with having committed armed robbery in violation of La.R.S. 14:64. Defendant entered a plea of not guilty, was tried by a twelve person jury, and was found guilty as charged. Defendant was then charged under the Habitual Offender Law, La.R.S. 15:529.1, with being a second felony offender. The defendant pled guilty to the habitual offender charge and was sentenced to 33 years at hard labor. Defendant now appeals his conviction and sentence.'

The two victims herein, Gene Payne and Larry Clark, were seated in Mr. Payne’s kitchen quietly talking and drinking coffee on the evening of September 3, 1981. At about 10:30 p.m., the back screen door to the house burst open and defendant and another male known as “Roy” entered the kitchen. Defendant was carrying a sawed-off shotgun which he handed to “Roy” when they were fully into the kitchen. Defendant picked up Mr. Payne's shotgun which had been placed upright against the wall and pointed the gun at the victims. Mr. Payne, whose leg had been broken and was in a cast, was forced to lie on the floor. Both men were told to empty their pockets. Mr. Payne was robbed of all his money and was beaten with the butt of the shotgun. Mr. Clark, who did not have any money on him, was beaten with the sawed-off shotgun. The kitchen table was knocked over making a loud noise. Mr. Payne’s wife, who was on the front steps of the house, heard the noise, went to the back of the house and saw two men carrying guns. She ran immediately and called the police, who arrived about 15 minutes later. However, defendant and Roy had fled through the back door. Police ran after them, found the sawed-off shotgun about three blocks from the scene of the crime, and apprehended defendant about 10 blocks from the scene. The officers brought defendant back to confront the victims, who identified defendant as one of the gunmen. Defendant was arrested, charged and brought to trial.

ASSIGNMENTS OF ERROR

Defendant has briefed two assignments of error on appeal:

1. The trial court erred when it allowed the prosecutor to include extraneous evidence during his rebuttal closing argument.

2. The trial court erred when it imposed an excessive sentence.

Defendant complains that the trial court erred when it allowed the prosecutor during his rebuttal closing argument to make references to his own personal experience of being held at gun-point. This error, defendant argues, was compounded when the court allowed the prosecutor to later tell of the experience of a bank teller who was held at gunpoint. Defendant argues that such references are extraneous to the case at hand, are irrelevant, immaterial and highly prejudicial to defendant, and are in direct contravention of La.C.Cr.P. art. 774 which provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The record before us on appeal reveals that the prosecutor’s references to other robberies he had prosecuted were intended to make the point that victims of crime do not always remember the incident in the same way. Such remarks were made during clearly permissible rebuttal to closing arguments raised by defense counsel that the testimony of the victims herein contained many inconsistencies. Our review of the record convinces us that, in view of the overwhelming evidence of guilt, the prosecutor’s remarks did not influence the verdict of the jury. Therefore, we cannot say that the prosecutor’s remarks prejudiced the defendant. State v. Winn, 412 So.2d 1337 (La.1982).

We find that the trial court, in overruling defendant’s objection to the remarks complained of, properly exercised' its broad discretion in this area. Accordingly, there is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that his sentence is excessive within the meaning of Article 1, Sec. 20 of the Louisiana Constitution of 1974, which provides that no law shall subject a person to “cruel, excessive, or unusual punishment.”

Defendant was sentenced to serve 33 years at hard labor following his conviction for armed robbery as a second felony offender. As a second felony offender, defendant could have received a maximum sentence of 198 years imprisonment at hard labor without probation, parole or suspension of sentence and a minimum sentence of not less than 33 years at hard labor without probation, parole or suspension of sentence. La.R.S. 14:64 and La.R.S. 15:529.1(A)(1); State v. Bruins, 407 So.2d 685 (La.1981). Since defendant received the minimum allowable under La.R.S. 15:529.1 (habitual offender law), defendant’s sentence is not excessive.

On review of the transcript of the sentencing hearing, it is evident that the trial judge stated the factors present in this case which he took into account when sentencing defendant. These factors are set forth in La.C.Cr.P. art. 894.1 and are guidelines to help the trial judge determine a particular sentence. Since the trial judge adequately complied with the sentencing guidelines, on review of his reasons for sentencing, we find the defendant’s sentence is not excessive. There is no merit to this assignment of error.

We note that the trial court in sentencing the defendant failed to impose the qualifying clause “without benefit of parole, probation or suspension of sentence” onto the sentence of 33 years at hard labor. In accordance with State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writs granted in part and denied in part, 443 So.2d 1123 (La.1984), the sentence is amended to provide that it shall be served without benefit of parole, probation or suspension.

For the foregoing reasons, we affirm the conviction and amend and affirm the sentence.

CONVICTION AFFIRMED, SENTENCE AMENDED AND AFFIRMED.

      . The record reflects five assignments of error. Two were identical and are contained in assignment of error no. one in defendant’s brief. The other two were not identified or briefed in defendant’s brief on appeal and arc therefore considered abandoned. Rule 2-12.4, Uniform Rulcs-Courts of Appeal, State of Louisiana. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La. 1983).

      . Actually, although the prosecutor started to remark about his experience in looking at a gun and the experience of a bank teller, objection was made and even though overruled, the prosecutor did not proceed any further with this argument. Thus, no conclusion was ever drawn for the jury to consider.

      . Note my concurring opinion in Jackson where I pointed out that this omission is of no consequence because the trial judge has no discretion and is required by statute to impose the sentence without benefit of parole, probation or suspension of sentence.


text:
    STATE of Louisiana v. Alvin NORMAN.
    Nos. 83 KA 1107, 83 KA 1108.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Granted in Part July 17, 1984.

      Ossie B. Brown, Dist. Atty. by Ralph Roy, Brenda Creswell, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Alvin Norman, was charged by grand jury indictment with forcible rape in violation of La.R.S. 14:42.1. He pled not guilty and, after a trial by jury, was found guilty as charged. The state filed a bill of information charging him as a second felony offender under the Louisiana Habitual Offender Law (La.R.S. 15:529.-1[A][1]) alleging a prior conviction for armed robbery. The defendant pled guilty to the habitual offender allegation. The trial judge sentenced the defendant to serve thirty years at hard labor in the custody of the Louisiana Department of Corrections and ordered him to pay cost of $252.40. This appeal followed.

SUFFICIENCY OF EVIDENCE

The defendant contends that the jury verdict of guilty is based on insufficient evidence to convict.

In State v. Mathews, 375 So.2d 1165 (La. 1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); cf. State v. Captville, 448 So.2d 676 (La.1984).

The victim testified that she lived in a small apartment located behind a building which housed a grocery store and washate-ria located in East Baton Rouge Parish. The victim worked as a janitor at the was-hateria. On January 30, 1982, she went to bed at about midnight. At 2:00 a.m., she heard a knock on her apartment door. She asked who was there and a voice replied “Pig”, the nickname of a friend who lived across the street from the washateria. The person outside the door asked to use her phone, but she directed him to use the phone in the grocery store in the same building and went back to sleep.

After an unspecified time interval, the victim was again awakened by knocks on her door. She again asked who was there, and the person at the door replied “Pig” and stated he wanted to use the phone. She opened the door and was pushed back into her room and knocked onto her bed. She reached for a pistol that she kept under her pillow, but the intruder knocked it out of her hand and threw it out of her reach. She got up again but was knocked back onto the bed. The intruder then had sexual intercourse with her. After this, the victim went into her bathroom, but the intruder brought her back out, pushed her onto the bed and had sexual intercourse with her again.

During the course of this incident, the intruder beat the victim with his fist in her chest. This caused the victim great concern because she had heart trouble. The intruder told her not to hit him or holler or he would kill her. The intruder smelled of alcohol.

After this ordeal was over, the intruder made the victim lie on her stomach on the bed and he tied her hands behind her back. He then told her to call the police or he would come back and she would be sorry. The victim freed herself but remained sitting in her room until 7:00 a.m. when she called her boyfriend. The boyfriend came over, she told him what happened and he advised her to call the police, which she did. The police subsequently arrived and investigated the incident. The victim was advised not to take a bath but did about an hour later contending that she did not want the intruder’s scent on her. The police asked her to go to the hospital for an examination, but she declined.

The victim subsequently identified the defendant, Alvin Norman, from a photographic lineup presented to her by the police. She indicated that, although she never talked to him, she recognized the defendant as a person known by the nickname of “Kingfish” and that she knew the defendant’s sister, Carolyn. During the incident, the defendant talked about his sister and brother. The victim also made an in-court identification of the defendant as her assailant.

Detective Sergeant Errol Voinche of the Baton Rouge City Police Department testified that he brought a photographic lineup to the victim and she identified the defendant.

The defendant presented the testimony of Gary Nettles (his brother) and Willie Mae Norman Ray (his mother). Gary Nettles testified that he lived at his mother’s home, located two streets away from the apartment of the victim, with the defendant and some of his brothers and sisters. He came home at 1:00 a.m. on January 30, 1982, and observed the defendant sleeping in his bed. He watched television until 3:00 a.m. and the defendant never left the house. Prior to 1:00 a.m., he was at a party but could not recall where the party was. Willie Mae Norman Ray testified that she woke up at 1:45 a.m. on January 30, 1982, checked the doors of the house to see if they were locked and observed the defendant sleeping in his room. She also saw two of her other children, Gary Wayne and Lisa Gail, watching television. She heard about the incident on the morning of January 30, 1982. The defendant told her that he did not do it.

The state then called in rebuttal Benjamin Nettles (defendant’s brother) and James L. “Pig” Williams. Benjamin Nettles testified that on the night of the incident he was playing cards with the defendant and “Pig” Williams at Williams’ trailer across the street from where the victim lived. The trio played until about 1:30 a.m. when the game broke up. The three were drinking Budweiser beer. Benjamin Nettles was living with “Pig” at that time and slept in “Pig’s” trailer that night. After the game broke up, he left and walked to a nearby bar. He went back to “Pig’s” trailer at about 2:30 a.m. He then testified that he stopped at his mother’s house at 1:45 a.m. after going to the bar. He saw his brother, Gary Nettles, watching TV. He walked through the house and saw the defendant sleeping in his bed. James L. “Pig” Williams testified that he had known the defendant for ten or twelve years and that the defendant’s sister, Caroline, and brother, Benjamin, lived with him. Williams also knew the victim. He heard about the incident on the morning of January 30, 1982, and talked to the police at the washateria. He testified that he was playing cards that night with the defendant and Benjamin Nettles and a fourth person whose name he could not remember. The game broke up about 1:00 or 1:15 a.m. The parties to the game were drinking beer.

The jury’s verdict indicates that after considering the credibility of the witnesses and weighing the evidence it accepted the testimony of the victim and rejected the alibi evidence presented by the members of the defendant’s family. The defendant contends that the testimony of the victim is not credible and should not have been accepted by the jury. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir. 1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact. Korman, 439 So.2d at 1101. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B). This court is constitutionally precluded from acting as a “thirteenth juror” ip assessing what weight to give evidence — that determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. McDowell, 427 So.2d 1346 (La.App. 2nd Cir.1983); Holmes v. Southeastern Fidelity Insurance Company, 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983). The testimony of the victim is sufficient to prove the offense charged.

The defendant contends that the evidence is insufficient because there is no medical evidence to confirm a rape. This contention is without merit because the testimony of a victim of a rape is sufficient to establish sexual penetration. State v. Rives, 407 So.2d 1195 (La.1981).

This assignment of error is without merit.

EXCESSIVENESS OF SENTENCE

The defendant contends that the sentence imposed upon him is excessive.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment and that, although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The authorized sentence for forcible rape is imprisonment at hard labor for not less than two nor more than forty years with at least two years of the sentence imposed without benefit of probation, parole or suspension of sentence. Because the defendant was adjudicated a second felony offender under the Louisiana Habitual Offender Law, the authorized sentence was increased to imprisonment at hard labor for not less than thirteen and one-third years nor more than eighty years. La.R.S. 15:529.1(A)(1). The sentence of thirty years actually imposed is in the lower half of the sentencing range.

At the sentencing hearing, the district court judge observed that the defendant had the following juvenile record:

(1) 1971 — bicycle theft for which he was counseled and warned;
(2) June 9, 1973 — burglary and theft for which he was adjudicated a delinquent and placed on a probation which was successfully terminated;
(3) May 15, 1975 — Two counts of simple battery for which he was counseled and warned; and
(4) January 22, 1976 — Simple robbery for which he was counseled and warned.

The defendant’s adult record was a conviction of armed robbery on October 9, 1978, for which he was sentenced to serve seven years at hard labor and from which he was discharged in the latter part of 1981. The instant offense occurred in January of 1982. Because of the defendant’s prior adult and juvenile record and because the sentence actually imposed is in the lower range of the sentencing scale, we cannot say that the district court abused the much discretion accorded him by law. See, for example, State v. Telsee, 425 So.2d 1251 (La.1983) (twenty-five years); State v. Barkley, 412 So.2d 1380 (La.1982) (forty years); State v. Lewis, 412 So.2d 1353 (La. 1982) (twenty-four years).

We note, as did the court in Telsee, 425 So.2d at 1261, that the sentence imposed by the district court is unlawfully lenient because it failed to provide that at least a portion of the defendant’s sentence would be without parole, probation or suspension of sentence as required by La.R.S. 14:42.1. Such a provision is applicable to a habitual offender sentence. State v. Bruins, 407 So.2d 685 (La. 1981). However, the failure of the trial court to specify that the sentence was not subject to suspension or probation is not significant. The district court judge did not actually suspend the sentence or put the defendant on probation. La.C.Cr.P. art. 893 divests a sentencing judge of his discretion to suspend a second felony offender’s sentence and place him on probation. State v. Wimberly, 414 So.2d 666 (La.1982); State v. Reed, 437 So.2d 353 (La.App. 4th Cir.1983).

La.R.S. 14:42.1 contains a mandate that at least two years of such a sentence shall be without parole. Although the defendant ordinarily would not be eligible for parole consideration until he served ten years of his thirty year sentence (La.R.S. 15:574.4), the trial judge in a forcible rape has the discretion of requiring that all of a sentence for forcible rape shall be without benefit of parole. A judgment on this issue by the district court is significant to the defendant and the state in the instant case because with the defendant’s prior convictions for forcible rape and armed robbery and his adjudication as a habitual offender, he is not eligible for diminution of sentence for good behavior. La.R.S. 15:571.3. Thus, whatever portion of the sentence the district court determines is not subject to parole must be actually served. Since the portion of the sentence which is to be served without benefit of parole is subject to the discretion of the district judge (and is not mandatory for all of the sentence), we deem it appropriate to recognize this patent sentencing error (La.C.Cr.P. art. 920) and to remand this matter to the trial court for resentencing (in accordance with his discretion) pursuant to the authority of La.C.Cr.P. art. 882. For guidance, see State v. Lathers, 444 So.2d 96 (La.1983).

Accordingly, the sentence imposed by the district court is vacated and this cause is remanded to said court for resentencing in accordance with the views expressed herein.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed, but the sentence is vacated and this cause is remanded to the trial court for resentencing.

CONVICTION AFFIRMED: SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . Under existing Louisiana jurisprudence, the sufficiency of the evidence is a question of fact. State v. Ruple, 426 So.2d 249 (La.App. 1st Cir. 1983) and the cases cited therein at page 255.

      . The victim stated the sister’s name was Carolyn, but James “Pig” Williams testified that her name was Caroline.

      . Sec, for example, State v. Johnson, 439 So.2d 636 (La.App. 1st Cir.1983); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983); State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writ granted, 443 So.2d 1123 (La.1984).