author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Ronald E. GARDNER, Appellant.
    No. CR83-1057.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Steven C. Graalmann, Broussard, Bolton & Halcomb, Alexandria, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

On January 20, 1983, defendant was charged by two separate bills of information with resisting an officer (LSA-R.S. 14:108) and disturbing the peace (LSA-R.S. 14:103). On August 23, 1983, defendant received a bench trial which resulted in his conviction on the charge of resisting arrest and his acquittal on the charge of disturbing the peace. On September 23, 1983, defendant was sentenced to pay a fine of $500 and, in default, to serve thirty days in the parish jail.

The defendant has not filed any assignments of error. As a result, this case is subject only to review for errors patent on the face of the record. LSA-C.Cr.P. Art. 920(2); State v. Jackson, 332 So.2d 211 (La.1976). Our review of the record has revealed an error patent, and accordingly, we reverse defendant’s conviction.

A defendant is entitled to a jury trial when a prosecution against him could result in a sentence of more than six months’ imprisonment. LSA-Const. Art. 1, § 17; State v. Laurendine, 439 So.2d 398 (La.1983); State v. Williams 404 So.2d 954 (La.1981). In the present case, the court tried the defendant on both charges at once. Although there was no mention of consolidation, under such circumstances, the charges are considered as if they were joined and, for the purpose of determining defendant’s right to a jury trial, the possible punishment is the sum of the maximum period of confinement which the court could have imposed with regard to each crime. In this case, the sum of the maximum periods of confinement is greater than six months since the maximum period of confinement for resisting an officer is six months and the maximum period of confinement for disturbing the peace is ninety days. It follows that defendant was entitled to a jury trial.

Although a defendant who is entitled to a jury trial may waive that right, such waiver is not presumed. State v. Laurendine, supra; State v. Williams, supra. Nothing in the record before us indicates that defendant waived his right to trial by jury. This lack of an indication of a waiver by defendant is an error patent.

For the foregoing reasons, defendant’s conviction is reversed, his sentence is vacated, and the case is remanded for a new trial.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Dewitt BRAXTON, Defendant-Appellant.
    No. CR83-1164.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      H.C. Gahagan, Gahagán & Gahagan, Natchitoches, for defendant-appellant.
    R. Raymond Arthur, Dist. Atty., John G. Williams, Asst. Dist. Atty., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

Defendant, Dewitt Braxton, was indicted by a grand jury for malfeasance in office and conspiracy to manufacture marijuana, in violation of LSA-R.S. 14:134, and LSA-R.S. 40:966(A) and 40:979(A) respectively. Following a bench trial, defendant was convicted on both charges and sentenced to pay $500 and serve six (6) months in the parish jail for malfeasance in office, and $2,500 and five (5) years at hard labor for conspiracy to manufacture marijuana. The sentences were suspended and defendant was placed on supervised probation for two (2) years and five (5) years respectively, to run concurrently. The latter ' probation was subject to a special condition that defendant serve 180 days in the parish jail at a rate of two (2) days per week. Defendant appeals, urging, eight (8) assignments of error. We affirm.

FACTS

In late January or early February 1980, the defendant, Dewitt Braxton, approached Gary Harper at a Parade service station in Natchitoches Parish and stated that he had to contact Roy Harper, Gary Harper’s brother. Several days later, Roy Harper and the defendant met at the residence of Jenece Dupree, Roy’s sister. At that time, these men had a conversation in the defendant’s patrol car, in which the defendant stated that he knew a businessman who wanted Roy to grow marijuana for him. It should be noted that the defendant was employed by the Natchitoches Parish Sheriff’s Office from August 1, 1973 until June 30, 1980.

Several days later, Roy Harper saw the defendant at the Natchitoches Parish Sheriff’s Office and the defendant reurged him to meet with Terry Williams, the businessman interested in growing marijuana. Subsequent to this meeting, Roy began cultivation of an acre of marijuana, containing about 4,200 plants, at Cloud’s Crossing, near Campti, Louisiana.

Harper claimed that in mid-June 1980, the defendant visited the location where the marijuana was being grown and he stated to him that the plants were looking good and that they should be cut. Roy estimated that the plants were between seven and eight feet tall at the time of the defendant’s visit.

In July, 1980, the defendant visited the marijuana farm with Terry Williams and they walked about the entire garden. At the time, the marijuana was estimated to be approximately 11 feet tall.

On July 26, 1980, Roy was arrested at the marijuana farm by Sheriff Norm Fletcher. Harper did not tell the law enforcement officers on this occasion that the defendant was involved in the conspiracy to manufacture marijuana.

On April 28, 1981, Harper made a statement to law enforcement officers indicating that the defendant was part of the conspiracy. This statement was made soon after Roy Harper had been arrested for being fugitive.

Defendant was indicted by a grand jury for malfeasance in office, a violation of LSA-R.S. 14:134, and for conspiracy to manufacture marijuana, violations of LSA-R.S. 40:966(A) and LSA-R.S. 40:979(A). After waiving his right to trial by jury, the defendant was found guilty as charged. On August 9, 1983, the defendant was sentenced, on the malfeasance in office conviction, to pay a fine of $500 plus court costs and serve six (6) months in the parish jail; the jail sentence was suspended and the defendant was placed on two (2) years supervised probation. On that same day, the defendant was sentenced on the conspiracy to manufacture marijuana conviction to pay a fine of $2,500 plus court costs and serve five (5) years at hard labor in the Department of Corrections; that sentence was suspended and the defendant was placed on supervised probation for five (5) years. This probation was subject to special conditions, which required, in part, that the defendant serve 180 days without hard labor in the Natchitoches Parish Jail at a rate of two (2) days per week. The sentences and probations were ordered to run concurrently. The defendant appeals, urging eight assignments of error.

Defendant urges the following assignments of error on appeal:

1. Trial court erred in not quashing the indictment charging the appellant with the offense of malfeasance in office.
2. Trial court erred in not quashing the indictment charging the appellant with conspiracy to manufacture marijuana.
3. Trial court erred in not suppressing evidence seized at the premises of Roy Harper on July 26, 1980.
4. Trial court erred in that the Honorable W. Peyton Cunningham and John B. Whitaker, Judges, in and for the Tenth Judicial District Court, Natchi-toches Parish, upon being recused, appointed the Honorable Ted R. Broyles, Judge Ad Hoc, without complying with the provisions of LSA-C. Cr.P. Arts. 671 et seq.
5. Trial court erred in finding that the State established each and every element of the offense of conspiracy to manufacture marijuana in contravention of LSA-R.S. 40:968 beyond a reasonable doubt.
6. Trial court erred in that the evidence of conspiracy to manufacture marijuana was insufficient to sustain a conviction in contravention of LSA-R.S. 40:968 and thereafter the trial court erred in its finding of guilt.
7. Trial court erred in finding that the State established each and every element of the offense of malfeasance in office in contravention of LSA-R.S. 14:134 beyond a reasonable doubt. .
'8. Trial court erred in that the evidence of malfeasance in office was insufficient to sustain a conviction in contravention of LSA-R.S. 14:134 and therefore the trial court erred in its finding of guilt.

ASSIGNMENTS #1 and 2: DEFECTIVE INDICTMENT

The defendant contends that the trial court erred in not quashing the indictment charging the appellant with the offense of malfeasance in office. The defendant also contends that the trial court erred in not quashing the indictment charging the appellant with conspiracy to manufacture marijuana.

The bill of indictment for the malfeasance charge stated, in pertinent part:

“In the name and by the authority of the State of Louisiana, the Grand Jury duly empaneled and sworn in and for the Parish of Natchitoches, District and State aforesaid upon their oath present that Dewitt Braxton late of the Parish of Natchitoches, on or about the _ day of February thru July in the year of Our Lord, One Thousand Nine Hundred and eighty at and in the Parish, District and State aforesaid did unlawfully commit the crime of malfeasance in office, in violation of LSA-R.S. 14:134 by conspiring to distribute marijuana and conspiring to manufacture marijuana contrary to the form of the Statute of the State of Louisiana, in such cases made and provided and against the peace and dignity of the same.”

It should be noted that the state subsequently dismissed the charge that the defendant did conspire with Roy Harper to distribute marijuana.

The defendant was also indicted with the offense of conspiracy to manufacture marijuana. The bill of indictment stated, in pertinent part:

“In the name and by the authority of the State of Louisiana, the Grand Jurors duly empaneled and sworn in and for the Parish of Natchitoches, District and State aforesaid upon their oath present that Dewitt Braxton late of the Parish of Natchitoches, on or about the _ day of February thru July in the year of our Lord, One Thousand Nine Hundred and eighty at and in the Parish, District and State aforesaid did unlawfully conspire to manufacture marijuana contrary to the form of the Statute of the State of Louisiana, in such cases made and provided and against the peace and dignity of the same.”

In the motion to quash the indictment charging the defendant with malfeasance in office, the defendant contends that the indictment failed to state an essential fact constituting the offense charged in that it did not charge the defendant with a specific overt act done in furtherance of the conspiracy, that the indictment failed to conform to LSA-C. Cr.P. art. 464, that the indictment fails to charge conduct denounced by statute cited by indictment, and that the indictment fails to charge an offense which is punishable under a valid statute.

In the motion to quash the indictment charging the defendant with conspiracy to manufacture marijuana, the defendant contends that the State failed to charge the defendant with a specific overt act done in furtherance of any conspiracy, and that the bill of indictment failed to conform with LSA-C.Cr.P. art. 464.

LSA-C.Cr.P. art. 464 states:

“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.”

The record is devoid of any ruling on these motions to quash. The record does mention that the hearing on the motions to quash was deferred until the defendant’s motion for bill of particulars was answered. We note that the record is also devoid of any answers to the motion for bill of particulars.

In this instance, the record does contain a transcript of a hearing on the defendant’s motion to suppress. The testimony adduced from the hearing, however, failed to reveal any specific overt acts done in furtherance of the conspiracy, an essential element of the offense of conspiracy to manufacture marijuana. LSA-R.S. 40:966(A) and LSA-R.S. 40:979(A). In the absence of the answers to the bill of particulars, it appears that pre-trial discovery failed adequately to supplement the bills of indictment, in terms of providing notice of an essential element of the charged offense.

The bills of indictment appear to be factually defective in that they fail to inform the defendant of an essential element of the crime of conspiracy to manufacture marijuana, i.e. specific overt acts done in furtherance of the offense.

However, it is well-settled that a defendant may not complain of the insufficiency of the indictment after conviction if the offense charged has actually been identified and no prejudice has resulted from a lack of notice. See State v. Gainey, 376 So.2d 1240, 1242-43 (La.1979); State v. Murray, 357 So.2d 1121, 1123 (La.1978).

In State v. Randolph, 334 So.2d 687 (La.1976), the court presented an analysis of the elements necessary to establish the sufficiency of an indictment, and stated:

“This Court previously held the indictment to strict requirements and judged it with a hypertechnical eye in order to safeguard the accused’s constitutional right to ‘be informed of the nature and cause of the accusation against him.’ Art. I, sec. 13, La. Const, of 1974; Art. 1, sec. 10, La. Const, of 1921. But as we said in State v. James, supra [305 So.2d 514 (La.1974)], the defendant’s right to learn before the trial of the particulars of the offense for which he is to be tried can be adequately protected by the bill of particulars and other discovery devices. The constitutional provision should not be restricted to meaning that the defendant must be informed by indictment of the nature and cause of the accusation against him. See Justice Tate’s concurring opinion in State v. Clark, 288 So.2d 612 (La.1974).”

334 So.2d at 689 (emphasis in original). See also State v. Pickier, 355 So.2d 1302 (La.1978).

Defendant has failed to show that he was actually prejudiced by a lack of notice. Accordingly, we find no merit in these assignments of error.

ASSIGNMENT # 3: MOTION TO SUPPRESS

The defendant contends that the trial court erred in not suppressing evidence seized at the premises of Roy Harper on July 26, 1980.

A hearing on a motion to suppress evidence was conducted on April 6, 1982. Testimony adduced at the hearing revealed that Chief Bridges received an anonymous phone call in July, 1980, and the male caller stated that he had seen something unusual growing in the area near Cloud’s Crossing Road. Chief Bridges testified that the following day he went out to that area and from a public road looked at the area near Harper’s trailer through binoculars. The Chief testified that he observed a green weed, with distinctive leaves, growing behind the fence. It should be noted that the officer testified that he could see these plants with his naked eyes. Chief Bridges testified that he then returned to town and told Deputy Manning about his observations. Chief Bridges then testified that he returned to the same area near Cloud’s Crossing Road with Deputies Manning and Reeves. Deputy Manning testified that when he arrived at the scene on Cloud’s Crossing Road, he observed, with his naked eyes, green plants behind a fence and that these plants appeared to be marijuana. Deputy Manning then looked at this area with a pair of binoculars and this confirmed his belief that the plants were marijuana. Deputy Manning testified that he and Deputy Reeves then walked down a right of way, probably Valley Electric’s, and looked through binoculars again and observed what appeared to be marijuana growing near the trailer. The officers then returned to town and obtained a search warrant.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court stated:'

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed. Jones v. United States, supra, 362 U.S. [257] at 271, 80 S.Ct. [725] at 736 [4 L.Ed.2d 697 (1960) ].”

103 S.Ct. at 2332.

It should be noted that the record contains neither the affidavit in support of the search warrant nor the search warrant itself.

Viewing the totality of circumstances, upon which the search warrant was based, it appears that probable cause existed for the issuance of the search warrant. Chief Bridges testified that after receiving a phone call from a caller stating that something unusual was growing on Harper’s property, he observed the marijuana from a public roadway. Upon returning to the area accompanied by Deputies Manning and Reeves, the marijuana was observed from the public roadway and right of way by all the officers. Based upon these observations a search warrant was then procured to allow the search and seizure of contraband growing in the field.

The Louisiana Supreme Court, in State v. Parkerson, 415 So.2d 187 (La.1982), stated that an officer’s observation of marijuana from a point outside defendant’s property clearly gave the officer and his colleagues probable cause to believe that marijuana was growing on the property and thus enabled them to secure a valid search warrant before entering the property of that defendant. Id. at 189.

Based on law and facts in this instance, this assignment of error lacks merit.

ASSIGNMENT NOS. 5, 6, 7, AND 8: SUFFICIENCY OF EVIDENCE

These assignments of error all relate to the sufficiency of the evidence presented at trial.

Defendant contends that the trial court erred in finding that the state established each and every element of the offense of conspiracy to manufacture marijuana in contravention of LSA-R.S. 40:979(A) beyond a reasonable doubt.

The defendant also contends that the trial court erred in finding that the state established each and every element of the offense of malfeasance in office in contravention of LSA-R.S. 14:134 beyond a reasonable doubt.

“It is well-settled that the evidence is sufficient to support the conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact-finder to weigh the respective credi-bilities of the witnesses and [the appellate court] will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review.”

State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

At trial, evidence was introduced to establish that the defendant had been employed as a deputy with the Natchitoches Parish Sheriffs Office from August 1, 1973 through June 30, 1980.

Gary Harper testified that in January or February, 1980, the defendant approached him at a service station in Natchitoches Parish and stated that he wanted to contact Roy Harper, Gary Harper’s brother. Several days later, Gary Harper conveyed this message to his brother, Roy.

Roy Harper testified that he called the defendant regarding this message and that the defendant stated that he had to speak with him. The defendant met with Roy at the residence of Jenece Dupree, Roy’s sister, on Adelaide Street in Natchitoches, Louisiana. The entire conversation between the defendant and Roy Harper took place in the defendant’s patrol car. It should be noted that these two subjects were alone in the patrol car at that time.

While in the patrol car, the defendant told Roy that he knew a businessman who wanted to grow marijuana, and he promised Roy Harper that he would not get busted. Roy testified that the defendant stated that the businessman’s name was Terry Williams.

Roy Harper testified, that he told his wife, Marion Harper, about the conversation shortly after the defendant left. Marion Harper’s testimony corroborated that of Roy’s, in that she observed the defendant and Roy conversing in the defendant’s patrol car for approximately 30 minutes, and shortly after that, Roy told her about the conversation.

Roy Harper testified that he spoke with the defendant again, several days later at the Natchitoches Parish Sheriff’s Office, and that the defendant told him to be sure to contact Terry Williams. Roy Harper testified that he met with Terry Williams later that day and at that time, Mr. Williams told Roy that he wanted him to grow marijuana and that Harper would not be busted. Following this meeting, Roy Harper testified that he began to grow about an acre of marijuana, containing approximately 4,200 plants, at Cloud’s Crossing, near Campti, Louisiana.

Roy Harper testified that in mid-June, 1980, the defendant visited the farm where he was growing the marijuana and told him that the crop was looking good and that it should be cut. This statement was not corroborated by any other witnesses. Roy also testified that when the defendant visited the farm on that occasion, he was dressed in his deputy uniform.

Roy Harper testified that the defendant also visited the location with Terry Williams after Sheriff Norm Fletcher came into office. Mr. Harper testified that on this occasion, the defendant walked about the entire marijuana garden at which time the marijuana was approximately 11 to 12 feet tall.

This testimony was corroborated by Marion Harper, who stated that on or about July 1,1980, the defendant visited the marijuana garden with Terry Williams. Marion Harper also testified that the defendant was present when she delivered marijuana to Terry at the Williams’ residence in August, 1980.

The defendant testified that he never had a conversation with Roy Harper concerning Terry Williams. The defendant also testified that when he went to Roy Harper’s residence with Terry Williams in July, 1980, he did not speak with Roy Harper and that he never saw any illegal substances or contraband at that location. The defendant stated that he observed a wooden fence only. Deputy Manning testified that when the marijuana farm was raided on July 26, 1980, he observed marijuana growing over the fence.

Viewing the evidence in the light most favorable to the prosecution, it appears that a rational trier of fact could have found the essential elements of malfeasance in office, LSA-R.S. 14:134, and conspiracy to manufacture marijuana, LSA-R.S. 40:966(A) and LSA-R.S. 40:979(A). We should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

Accordingly, assignments of error 5, 6, 7, and 8 are without merit.

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

AFFIRMED.

      . Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255, 1256 n. 1 (La.1982); State v. Crawford, 441 So.2d 813, 815 n. 1 (La.App. 3d Cir. 1983).


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Felton LEDET, Defendant-Appellant.
    No. CR84-31.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Feb. 4,1985.

      G. Paul Marx, Lafayette, for defendant-appellant.
    Michael Harson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

Defendant, Felton Ledet, appeals from his conviction of second degree murder arising out of the shooting death of Richard Mosby. Defendant was sentenced to a mandatory term of life imprisonment at hard labor. We affirm.

FACTS

On January 8, 1983, Richard Mosby was found dead in his parked car outside the Willow Lounge in Lafayette, Louisiana at approximately 3:15 a.m. by Harvey Benoit. The victim and Mr. Benoit had previously been drinking together inside the Willow Lounge. According to Mr. Benoit, the victim left the lounge approximately forty-five minutes before his body was discovered. At approximately 3:00 a.m. that same morning police had been in the lounge in answer to a call reporting the sound of gunshots. The body of the victim was not discovered at that time.

The evidence produced at trial shows that the victim was lying across the front seat of the car at the time he was shot. The shots were fired through the passenger’s side window. The victim suffered wounds from three bullets, one of which entered the left side of the top of his head and lodged at the base of his brain. This injury was determined to have caused the victim’s death. Four .25 caliber bullet cartridge casings were recovered at the scene, along with one bullet which had lodged in the arm rest of the victim’s car. A bullet and bullet fragments were also recovered from the victim’s body.

Officer Charles Johnson of the Lafayette Police Department testified that during the investigation a black male approached him, identified himself as a Pinkerton security guard and asked if he could be of any help. This individual was later identified as the defendant. Officer Johnson also testified that the defendant remained at the scene and had to be asked by other officers to move back.

During the investigation Officer Johnson noticed a vehicle described as a white Chevrolet Suburban. He testified that the vehicle was moved several times during the course of the investigation. At approximately 5:00 a.m. a wrecker began towing the victim’s car to the police impound yard. While following the wrecker, Officer Johnson noticed that the white Suburban was following him. He radioed police headquarters requesting that another unit stop and identify the individual in the white Suburban. Officer Ken Guidry responded to the request, and after following the defendant for a short distance, stopped him for a traffic violation. In response to Officer Guidry’s request the defendant got out of his vehicle and walked to the rear of it. Officer Guidry asked that he produce a driver’s license and conducted a pat-down search. The officer then conducted a visual search of the inside of the vehicle and saw a holster lying on the front seat which appeared to be made for a small caliber weapon.

The defendant agreed to accompany Officer Guidry to the police station, and drove his own vehicle there. Although he was not under arrest, the defendant was informed of his constitutional rights at the police station before being questioned regarding the holster in his vehicle. Upon being questioned the defendant admitted he had a .25 caliber gun at his home and consented to a police search to recover the gun. At his home, the defendant directed the officers to his bedroom and indicated that the pistol was under a pillow on his bed. After this first search, the defendant voluntarily submitted to an atomic absorption test, a procedure designed to determine whether the subject of the test has recently been in contact with a firearm which has been discharged. The defendant was placed under arrest around 9:30 a.m., and at approximately 11:25 a.m. he consented to a second search of his home which was for the purpose of seizing clothing and swabs which had been used to clean a gun.

Expert testimony at trial established that the weapon seized at the defendant’s home was the same weapon used in the murder. The results of the atomic absorption test indicated that defendant had in fact been in contact with gun residue which is released upon the discharge of a firearm. This gun residue is made up primarily of barium and antimony. The test results showed levels of these elements sufficiently high on both of defendant’s palms to indicate a positive result; however, the levels of the elements on the backs of his hands were inconclusive.

After deliberating approximately an hour and a half the jury voted ten to two in favor of conviction. Defendant appeals making the following assignments of error:

“I. The judgment of conviction is contrary to law because the circumstancial (sic) evidence presented failed to exclude every reasonable hypothesis of innocence.
“II. The trial court erred in its failure to suppress evidence seized from the defendant.
“III. The trial court erred in limiting the defense to eight peremptory challenges, under the new law for jury trials, despite the fact that this prosecution was instituted prior to the effective date of that legislation.”

ASSIGNMENT OF ERROR NO. I.

By this assignment, defendant argues that the State did not present sufficient evidence to sustain its conviction of second degree murder. The basis of this argument is that every reasonable hypothesis of innocence was not excluded as required by LSA-R.S. 15:438 which 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.”

The standard of review as to sufficiency of the evidence to support a conviction is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a case such as this involving circumstantial evidence, the defendant is entitled to have the jury instructed that the evidence must exclude every reasonable hypothesis of innocence. State v. Captville, 448 So.2d 676 (La.1984). In regard to the correct standard of appellate review in cases involving circumstantial evidence, the Louisiana Supreme Court has most recently made the following statement in State v. Chism, 436 So.2d 464 (La.1983):

“Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard,- and provides a helpful methodology for its implemen-. tation in cases which hinge on the evaluation of circumstantial evidence.”

The above statement by the court in Chism was reiterated in State v. Captville, supra. The court in Captville was reviewing a case involving circumstantial evidence in which the jury apparently rejected defendant's hypothesis of innocence. The court in Captville held:

“When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.”

In our attempt to apply what appear to be the latest expressions of our State’s highest court regarding standards of review in cases involving circumstantial evidence, we will review the evidence relied upon by the State. The evidence presented at trial showed that the defendant lived approximately one block from the Willow Lounge. A neighbor, whose home is roughly positioned between the lounge and defendant’s home, testified that around 3:00 a.m. he heard a sound similar to gun fire, and shortly thereafter heard noises indicating that someone was running from the direction of the Willow Lounge toward Georgia Street where defendant’s home is located.

The defendant exhibited an inordinate amount of interest during the investigation of the crime, and was observed following the truck towing the victim’s car to the impound yard. (It is highly probable that defendant would not have been arrested had he not continued to make himself so conspicuous.) The shell casings and bullets which were recovered were established by expert testimony to have been fired from defendant’s gun. The defendant had gun residue on his hands consistent with having recently been in contact with a discharged firearm. The defendant was able to lead the police directly to the location of his gun. According to his own testimony, the defendant apparently had opportunity to commit the crime.

The defendant testified that he spent the most of the late evening of January 7 working on his truck. Around midnight he decided to go to the Willow Lounge for a beer. After his first beer at the Willow Lounge, defendant proceeded to two other nearby bars, apparently looking for female companionship. He returned to the Willow Lounge shortly after 1 o’clock and became engaged in a conversation with a lady there. Because he was still wearing the clothing in which he had worked on his truck, the defendant decided he should go home and change into clothing more appropriate for continuing, to use his words, “the night’s episode.” After changing clothes, the defendant purchased some gasoline and three beers and returned to the Willow Lounge at approximately 2 o’clock. The lady with whom he had spoken earlier was no longer there, and after buying drinks for a group of four or five more ladies, the defendant left alone. The defendant testified that he drove around for a short time and then drove back by the Willow Lounge, at which time he was informed that the lounge was closed. The defendant went home, drank another beer, and was trying to decide how to spend the rest of his night out. He noticed a number of emergency lights in the vicinity of the Willow Lounge and decided to go over and see what had happened.

Defendant’s hypothesis of innocence is that someone else used his gun in the shooting and returned it to its place under his pillow. In support of this position, defendant points out that the police were aware of another person sleeping in his house when they seized his gun early on the morning of January 8. The police did not wake or question the person sleeping in the house. Defendant testified that his younger brother lives with him in the house. There were also a number of people in the house when the police returned later to seize the gun cleaning patches, yet none of these people were questioned. According to defendant, he had last fired his weapon on Wednesday before the Saturday shooting, and he had cleaned the gun late Thursday night. His explanation for the gun residue on his hands is that it came either from the holster in his truck, or the cleaning patches left in his room. We note that the gun was quite evidently cleaned after being used in this shooting.

As in State v. Captville, supra, the jury apparently considered defendant’s hypothesis that someone else had used his gun in the shooting and rejected it. No other hypothesis of innocence, either possible or reasonable, has been suggested by the defendant. In viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably concluded that the defendant committed the crime, returned home and cleaned his gun, and returned to the scene of the crime to follow the investigation. Defendant's position that some unknown person used his weapon to commit the murder was reasonably rejected by the jury, and there has been no other hypothesis which would raise a reasonable doubt as to his guilt. We cannot say that a rational juror could not have voted to convict.

ASSIGNMENT OF ERROR NO. II.

Defendant argues that the trial court erred in denying his motion to suppress the holster, the gun, the empty cartridge case, and the cleaning swabs. We will first consider the admissibility of the holster which was seized pursuant to defendant’s stop for a traffic violation.

Defendant argues that the search of his vehicle was unreasonable because at that point there was no reason to suspect him of any involvement in any crime. We disagree. Officer Guidry initially began following defendant’s vehicle after being informed that it was following the murder victim’s ear which was being towed to the police impound yard. Officer Guidry followed the defendant’s vehicle until he witnessed a traffic violation which was, to the best of his recollection, improper lane usage. Officer Guidry testified that he looked into the vehicle for his own safety in order to ascertain that there was no one else in the vehicle, and saw the holster laying on the front seat. He recognized that the holster was probably made for a small caliber gun, and he knew at that point that the weapon used in the murder was a .25 caliber pistol.

The defendant testified that he does not recall committing any traffic violation; however, we do not find that the trial court abused its discretion in accepting Officer Guidry’s testimony over that of the defendant. We-have no difficulty in concluding that Officer Guidry was justified in looking into the defendant’s vehicle for his own protection, and that his inadvertent observation of the holster did not amount to an intrusion sufficient to justify constitutional protection. See State v. McGary, 397 So.2d 1305 (La.1981) and State v. Parker, 355 So.2d 900 (La.1978). We must now consider whether exigent circumstances existed which justified seizure of the holster. State v. Redfearn, 441 So.2d 200 (La.1983).

The exact circumstances of the seizure of the holster are a little unclear. Officer Guidry testified that he did not seize the holster; however, Detective Broussard testified that Officer Guidry handed the holster to him when the defendant arrived at the police station. According to the defendant, it was seized immediately after he was given the traffic citation, but not by the officer who issued the citation. We conclude that the holster was properly seized at the time the traffic citation was issued. The facts within Officer Guidry’s knowledge at the time he stopped the defendant were sufficient to give him probable cause to believe that the holster was evidence in the earlier murder. The defendant had ágreed to return to the police station and was allowed to drive his own vehicle there; therefore, he would have had an opportunity to remove the holster. These circumstances warranted immediate action.

We will now consider the seizure of the gun, empty cartridge case, and cleaning swabs. These items were seized from defendant’s home pursuant to two signed consents to search by the defendant. Defendant argues that his consent was not voluntarily given. According to the police, defendant arrived at the police station at approximately 5:15 a.m. He signed a waiver of rights at 5:25 a.m. and a voluntary consent to search at 6:01. They proceeded with the defendant to his home, at which time they seized the gun and empty cartridge case. When they returned to the station, defendant voluntarily submitted to the atomic absorption test, and he was placed under arrest at approximately 9:30 a.m. Defendant signed another voluntary consent to search at 11:25 a.m., after which the police returned to his home and seized the gun cleaning swabs. The defendant’s testimony is that he did sign the consent forms but that he did so after the first search. He also testified that he felt he might be a subject of police brutality if he did not cooperate.

Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. The factual determinations of the trial judge are given great weight on appellate review. State v. Smith, 433 So.2d 688 (La.1983). It is clear that the trial judge found the testimony of the police officers more credible than that of the defendant, and we cannot say that he abused his discretion in doing so.

The motion to suppress was correctly denied.

ASSIGNMENT OF ERROR NO. III.

In this assignment, defendant argues that the trial court erred in applying to ms case Act 495 of 1983 amending LSA-C.Cr.P. art. 799. Act 495 reduces the number of peremptory challenges available to the State and the defendant from twelve to eight. Its effective date was August 30, 1983, prior to defendant’s trial which began on October 11, 1983. Although it is not articulated in this matter, it is apparent that defendant argues that Act 495 was unconstitutionally applied to his trial in an ex post facto manner. This court has recently considered that argument and found it to be without merit. See State v. Floyd, 458 So.2d 597 (La.App. 3d Cir.1984). In that case we discussed the jurisprudence and concluded that a change in the number of peremptory challenges is merely procedural and may have retroactive effect without violating the constitutional prohibition against ex post facto laws. We conclude in the case before us, as we did in Floyd, that the change in the number of peremptory challenges did not materially impair the right of this defendant to have his guilt determined according to the law as it existed when the offense was committed or when prosecution was instituted. Act 495 was properly applied.

DECREE

For the above reasons, the defendant’s conviction for second degree murder is affirmed.

AFFIRMED.


author: DOUCET; Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gary Alan HARPER, Defendant-Appellant.
    No. CR84-51.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      John C. Conine, Luster & Conine, Natchi-toches, for defendant-appellant.
    Eric R. Harrington, R. Raymond Arthur, John G. Williams, Asst. Dist. Attys., Natch-itoches, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET; Judge.

On July 12, 1981, the defendant, Gary Alan Harper was arrested and charged by bill of information, with manufacture of marijuana with intent to distribute, in violation of La.R.S. 40:966(A), illegal possession of marijuana in violation of La.R.S. 40:966(C), and possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1.

For several months prior to the defendant’s arrest the Natchitoches Parish Sheriff’s Department had received information from an unidentified source, indicating that the defendant was cultivating marijuana near his residence. On July 7, 1981, Deputy Luther Lee received a phone call, again from an unidentified source, giving the location of three patches of marijuana. The following day, Deputy Lee discovered that Deputy Davies of Winn Parish had received the same tip. The owner of the land on which defendant resided, Mr. Joe Williams, testified at the motion to suppress, that since 1967 he had taken the position that the Sheriff’s Office was free to search his property at any time it was felt to be necessary. He further stated that he had reconfirmed that permission whenever asked. On July 12, 1982, Deputy Lee and Louisiana State Trooper Jett searched the property. After discovering three patches of marijuana, at the locations indicated in the tip, the officers returned to the Sheriff’s Office. They notified the landowner, Mr. Williams, of their findings and requested written permission to search, which was granted. A search warrant was signed on July 12, 1982 by Judge W. Peyton Coving-ton, Jr., which provided for a search of the entire property, approximately 115 acres, including the house in which the defendant resided. Pursuant to the warrant the officers seized the marijuana plants. They went to the house and finding no one at home, they entered an unlocked window and searched the residence. The officers located and seized contraband, drug paraphernalia, and weapons. Upon leaving, the officers left a copy of the search warrant at the house. The defendant was subsequently arrested. A motion to suppress all evidence seized in the defendant’s home and in the wooded area surrounding the defendant’s house was denied.

On July 20, 1983, defendant pled guilty to the charge of manufacture of marijuana with intent to distribute, reserving his right to appeal the denial of the Motion to Suppress. The State' dismissed the other two charges. The defendant now appeals the denial of the Motion to Suppress.

The defendant alleges that the initial warrantless search of the woods surrounding the residence of the defendant was invalid in the absence of a valid consent or exigent circumstances.

Both the United States and the Louisiana Constitutions afford protections against unreasonable searches and seizures by requiring that the police obtain a warrant before they conduct a search or seizure. It is well settled, however, that this protection may be waived and a warrant-less search conducted pursuant to a valid consent.

"... Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This common authority stems not so much from one’s property interest, ‘... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’ Matlock, supra, 94 S.Ct. at 993, fn. 7.” State v. Bodley, 394 So.2d 584 (La.1981).

The testimony of both the Sheriffs deputy and the landowner indicate that the landowner gave his consent to the search. There is no evidence of record (such as a lease) that the defendant had any authority over the wooded property surrounding the house and lawn, which would lead him to expect privacy or exclusive use of that wooded property.. On the other hand, Mr. Williams’ testimony at the motion to quash, reveals that he owned the property, used it for timber operations, and inspected it periodically. Therefore, he had the authority in his own right to consent to a search of the land surrounding the house inhabited by the defendant. Mr. Harper “assumed” the risk that Mr. Williams might permit the area to be inspected. The warrantless search was validly conducted pursuant to the consent of the owner of the property.

Defendant further argues that the search warrant issued to the officers to search the property including the house occupied by defendant, and seize any contraband, was invalid in that (1) it was based on evidence obtained illegally and (2) the application for the warrant contained no evidence as to criminal activity inside the house. Therefore, he urges, the evidence obtained pursuant to the warrant should be suppressed.

“LSA-C.Cr.P. Art. 162 provides that a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. State v. Johnson, 408 So.2d 1280 (La.1982). Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Boksham, 370 So.2d 491 (La.1979). State v. Wise, 434 So.2d 1308 (La.App. 3rd Cir.1983).”

The record indicates that Deputy Lee had received unidentified tips indicating the existence and locations of three patches of marijuana. Relying on a valid consent to search given by the landowner, the officer substantiated the tips with regard to the patches of marijuana. Once having established the reliability of his informant, the officer obtained a search warrant in order to seize the plants observed, as well as to conduct a search of the house. It is clear from this that the facts and circumstances established sufficient probable cause to issue a warrant to search the property and seize any property found in that search. Common sense dictates that if a tip stating that an individual is growing marijuana near his residence has been substantiated by location of the crop, then there is sufficient information on which to base a reasonable belief that contraband may be found in that individual’s residence. As a result of the Officer’s investigation of the property, probable cause existed to obtain a warrant to search the house of that individual for evidence of his criminal involvement with that crop.

In addition the defendant contends that the search of his house is invalidated by the fact that he was absent and not served with a warrant.

La.C.Cr.P. Art. 164 provides:

“In order to execute a search warrant a peace officer may use such means and force as are authorized for arrest by Title V."

Title V, La.C.Cr.P. Art. 224 provides for forcible entry where the officer believes that the object of an arrest warrant is within and entry has been refused or otherwise obstructed. Application of this provision to a search warrant as provided by La.C.Cr.P. Art. 164, supra, allows officers to execute a search warrant where refused entry or otherwise obstructed.

In State v. Williams, 250 La. 64, 193 So.2d 787 (1967), the Louisiana Supreme Court stated that “... The absence of the person named in the search warrant does not invalidate a search of the premises under the warrant. Nor is there any requirement that the warrant be served before the search.” Further, authority for a search and seizure of property in the absence of the occupant is found in La.C. Cr.P. art. 166 which provides for procedures as follows:

“When a peace officer seizes property under a warrant he shall give a receipt to the person from whom the property is taken, describing the property in detail. In the absence of such person, the peace officer shall leave the receipt in the place where the property was seized.”

This article makes it clear that the legislature contemplated and provided for searches made in the absence of any occupant of the location searched.

In this case the officers had a valid search warrant. It was based on sufficient probable cause to allow a search of the defendant’s house as well as the surrounding land. Finding no one at home, but reasonably believing the contraband to be located within, the officers entered the premises and conducted the search, made an inventory of the articles seized, and left a copy of the search warrant in the home. The entire investigation, from initial search to final seizure was carried out within the parameters of the law. The trial court correctly denied the Motion to Suppress. We affirm.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Quintus D. BOWIE, Appellant.
    No. CR84-58.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Feb. 4,1985.

      Patrick L. Durusau, Jena, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

The defendant, Quintus D. Bowie, was charged by bill of information with aggravated battery, in violation of LSA-R.S. 14:34. After initially pleading guilty, defendant was allowed to withdraw that plea and enter a plea of not guilty. On November 8, 1983, he was tried before a jury and found guilty. The court sentenced him to four years at hard labor in the custody of the Department of Corrections.

Defendant has appealed his conviction and filed two assignments of error contending that:

(1) The trial court erred in excluding from evidence two grand jury indictments which had charged defendant with less severe crimes (aggravated assault) in connection with the incident that forms the basis of defendant’s conviction; and
(2) The court erred in failing to grant defendant’s motion for post-conviction relief based on the prosecution’s failure to carry its burden of proof.

FACTS

In the early evening of December 30, 1982, Deshon Jenkins and Stephanie Ogle-tree left Jena in a car owned by Jenkins' mother to go to Alexandria where they planned to see a movie. Their leaving was observed by the defendant, who had dated Ogletree until Ogletree ended their relationship. Defendant began following them.

Observing defendant following them as they traveled toward Alexandria, first on La. Highway 8, and then on La. Highway 165, Jenkins decided to turn off toward Pineville in an attempt to “lose” the defendant. In Pineville, Jenkins drove through a store parking lot and down several back streets, but was unable to elude the defendant.

Jenkins decided to head back to Jena. The defendant continued to follow, and while still in Pineville, the defendant passed the car with Jenkins and Ogletree in it. The defendant stopped his car ahead of Jenkins’ car, blocking or partially blocking the road. He got out of his car and walked up to Jenkins’ car. He told Ogletree that he wanted to talk to her and ordered Jenkins to pull to the side of the road. He then returned to his car, and pulled over to the side of the road. Ignoring the defendant’s demand, Jenkins drove off and headed back toward Jena, following the route by which he had come. Defendant continued to follow but, along the way, he stopped for gas, and Jenkins and Ogletree lost sight of him. Nonetheless, defendant was able to catch up a few minutes later some twelve to fourteen miles from Jena in LaSalle Parish.

Jenkins, Ogletree, and the defendant all testified at trial to the events of the next few minutes. The defendant’s testimony contradicted that of Jenkins and Ogletree. Jenkins testified that when defendant caught up with them, defendant bumped his car two or three times from behind. He claimed that defendant then pulled up alongside his car and bumped it from the side some ten to fifteen times in an attempt to run his car off the road. Jenkins testified that the two cars were traveling sixty-five to seventy miles per hour and that he was only able to maintain control of his car with great difficulty. Ogletree stated that she did not remember the bumping from behind, but remembered the defendant coming up alongside the driver’s side of their car and trying to force them off the road. Both Jenkins and Ogletree testified that after defendant tried to run them off the road, he pulled up alongside their car and fired four or five shots into the car with a pistol, breaking the front two windows and the rear window. They testified that when the shooting began, Ogletree got down on the floorboard of the car.

In an attempt to get away from the defendant, Jenkins turned his car around three or four times, but the defendant got in front of him each time and blocked the road. Ogletree testified that, at one point, the defendant headed straight toward their car and fired at them. Jenkins testified that at no time before defendant began firing did he try to run him off the road. Jenkins did admit that after the defendant started shooting at him, he may have tried to run the defendant off the road in an attempt to protect himself.

For his part, defendant testified that he did not deliberately hit Jenkins’ car, nor did he try to run it off the road. He stated that the collision occurred as he attempted to pass Jenkins’ car because Jenkins swerved his car into his. He admitted shooting at Jenkins’ car, but maintained that he did so only because Jenkins was swerving into his car. Nevertheless, defendant admitted that he could have slowed down and avoided the incident.

Eventually, Jenkins and Ogletree were able to elude the defendant and return to Jena. Jenkins was examined by Dr. Robert T. Kendrick, who found that he had a cut over his left eye and another on his neck from which a metal fragment was removed. The doctor also found and removed a number of glass fragments from Jenkins’ scalp. Ogletree was apparently unharmed. An examination of the Jenkins car following the incident revealed small dents and blue paint (defendant’s car was blue with a white roof) on the driver’s side, several bullet holes, and broken windows.

ASSIGNMENT OF ERROR NUMBER 1

The defendant contends that the trial court erred in excluding from evidence two grand jury indictments which had charged defendant with less severe crimes in connection with the incident which forms the basis of his present conviction. The defendant points out that one of the victims, Stephanie Ogletree, is the step-daughter of a LaSalle Parish deputy. He argues that the fact that the D.A. nolle prossed the original charges against the defendant and filed an amended bill of information involving more severe charges indicated “bias or prejudice” on the part of the LaSalle Parish District Attorney’s Office in favor of the deputy and his family. He maintains that the original bills of indictment were admissible as evidence of this alleged “bias or prejudice”.

In his brief, defendant argues that the court’s exclusion of the indictments denied him his constitutional right to use cross-examination to expose bias or interest on the part of a witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. Nevertheless, neither in making his objection to the court’s ruling nor in brief does defendant argue that he intended to use the indictments to show the bias or prejudice of any witness. Clearly, what defendant was attempting to show was not the bias or prejudice of a witness, but that of the district attorney’s office. We think that the court’s exclusion of the indictments for this purpose was entirely proper.

Under LSA-C.Cr.P. Art. 61, subject to the supervision of the attorney general, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and may determine whom, when, and how he should prosecute. The district attorney’s decision to nolle prosse the original grand jury indictment for two counts of aggravated assault and file an amended bill of information for one count of aggravated battery was clearly within the district attorney’s authority. LSA-C.Cr.P. Art. 382 provides that the prosecution of any offense in district court which is not punishable by death or life imprisonment may be initiated by information. The fact that the grand jury had returned a true bill for a lesser charge did not deprive the district attorney of his authority to file an information charging defendant with aggravated battery. Even the return of “not true bill” does not preclude the district attorney from subsequently charging a crime by bill of information. State v. Tanner, 425 So.2d 760 (La.1983).

Under the circumstances, the introduction of the indictments in an attempt to show that the district attorney’s office, although entitled to do what it did, did so with a bad motive would have only confused the jury and resulted in prejudice toward the State. The bias or prejudice which the defendant sought to show rested on a tenuous connection which ran from the step-father of Ogletree, a deputy sheriff, to the sheriff’s department and thence to an entirely independent body, the district attorney’s office. Given the tenuous connection between the proffered evidence and the fact which the defendant sought to prove, the probative value of the proffered evidence was slight. On the other hand, the risk that the proffered evidence would confuse the jury and unduly prejudice the State was great. See State v. Ludwig, 423 So.2d 1073 (La.1982); State v. Moore, 278 So.2d 781 (La.1973). Furthermore, the harm which resulted to defendant from this alleged bias and prejudice was that the district attorney’s office did what the law entitled it to do. Under the circumstances, the judge properly excluded the indictments.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, defendant contends that the trial court erred in denying his motion for post-conviction acquittal based upon the State’s failure to carry its burden of proof. More particularly, defendant maintains that the State failed to prove beyond a reasonable doubt that the defendant did not act in self-defense.

The standard of review for sufficiency of evidence is whether a rational trier of fact, accepting the facts in the light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

When viewed in the light most favorable to the prosecution, the facts of the present case appear as follows: the defendant followed the two victims as they drove from Jena to Alexandria. Jenkins attempted to “lose” the defendant in Pineville but was unable to do so, and, a short time later, the defendant stopped his car in front of Jenkins’ car and forced Jenkins to stop. The defendant then told Ogletree that he wanted to talk to her and returned to his car. When the defendant returned to his car, Jenkins left the scene of the discussion and headed back toward Jena, followed by defendant. Twelve to fourteen miles from Jena, defendant bumped Jenkins’ car from the rear two or three times, then pulled up alongside and bumped the car from the side in an attempt to run Jenkins’ car off the road. Jenkins was only able to maintain control of his car with great difficulty. At this point, defendant, while alongside Jenkins’ car, fired four or five pistol shots into Jenkins’ car. Jenkins, in an attempt to elude the defendant, turned his car around three or four times, but the defendant got in front of him each time and blocked the road. At one point, the defendant headed his car straight toward the Jenkins car and fired a pistol shot at it. Jenkins was treated by Dr. Robert T. Kendrick for injuries he received in the encounter.

Battery is defined, in pertinent part, as “the intentional use of force or violence upon the person of another”. LSA-R.S. 14:33. Aggravated battery is “a battery committed with a dangerous weapon”. LSA-R.S. 14:34. As outlined above, there was evidence indicating that defendant had intentionally fired upon Jenkins with a .38 pistol and that Jenkins had sustained injuries as a result of that attack. The evidence was sufficient for any rational trier of fact to have concluded that defendant was, beyond a reasonable doubt, guilty of the crime of aggravated battery.

Defendant’s major contention is that he acted in self-defense. This claim, however, is contradicted by the testimony of Jenkins and Ogletree. Although Jenkins admitted that he might have tried to run the defendant off the road after defendant shot at him, he testified that at no time before defendant fired the shots did he attempt to run defendant off the road. Accepting this testimony of Jenkins (which we must under the standard of Jackson v. Virginia, supra), the defendant’s claim of self-defense stands rebutted. Moreover, the defendant himself admitted that he could have slowed down and avoided the entire incident. Instead, he persisted in his threatening and dangerous conduct.

In his brief, defendant makes much of what he claims are inconsistencies in the State’s case. He brings the following facts to this Court’s attention: Jenkins testified that defendant first bumped his car from behind. Ogletree stated that she did not remember this. A photograph of Jenkins’ car does not reveal any damage to the rear of the vehicle. Ogletree testified that, at one point, defendant headed straight toward Jenkins’ car and fired at it. Jenkins did not mention this in his testimony.

Initially, we note that these so-called inconsistencies do not bear directly on defendant’s guilt or innocence. Defendant admits shooting at the Jenkins vehicle and the inconsistencies he complains of do not concern facts which directly reflect on his claim that he was acting in self-defense. Furthermore, these so-called inconsistencies do not involve contradictory testimony but only minor additions or omissions by Ogletree or Jenkins. Such additions or omissions are perfectly understandable given the terrifying nature of defendant’s attack on these two teenagers. The court properly denied defendant’s motion for post-conviction relief. This assignment of error is without merit.

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

AFFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael MILSON, Defendant-Appellant.
    No. CR84-254.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Russell K. Zaunbrecher, Edwards, Ste-fanski & Barousse, Crowley, for defendant-appellant.
    Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before FORET, DOUCET, and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Michael Milson, pleaded guilty on August 13, 1979, to manslaughter, a violation of LSA-R.S. 14:31. Four and one-half years later, on January 20, 1984, the defendant was sentenced to serve six years at hard labor. Prior to sentencing defendant filed a motion to quash the sentence on the grounds of unreasonable delay in imposing the sentence, which the trial court denied. Defendant appeals contending the trial court erred in overruling his motion to quash. We reverse, finding the trial court was divested of jurisdiction to sentence defendant because the delay was unreasonable.

FACTS

Defendant was indicted by the grand jury of Acadia Parish for first-degree murder of Floyd Sennette. On November 21, 1978, defendant pleaded not guilty to first-degree murder. On August 13, 1979, defendant withdrew his plea of not guilty and entered a plea of guilty to the reduced charge of manslaughter. The trial court deferred sentencing, ordered a pre-sen-tence investigation and released defendant on bond. No further action was taken until January 17, 1984, whereupon the trial.judge sentenced defendant to serve ten years at hard labor. Within a few days after defendant was sentenced, he filed a motion to vacate the sentence requesting the sentencing court to reconsider its sentence in view of the lapse of time between the plea and the imposition of sentence; defendant also filed a motion to quash the sentence because of the unreasonable delay between the plea and sentencing. The sentencing court denied the motion to quash but vacated the sentence, and re-sentenced defendant to serve six years at hard labor. In re-sentencing defendant, the court commented:

“... I don’t know how it happened. I got the pre-sentence investigation report dated January — I mean December 19,1979. Taking into consideration the Christmas holidays and so forth, it would have been January, 1980, in all probability, before Mr. Milson could have been sentenced. That is a period, as I see it, of four years to this date. So that I don’t think Mr. Milson will have any reason or justification for further appeals in this matter.
I am going to — I have already vacated the ten year sentence, and I am going to reduce and now sentence him to a period of six years at hard labor with the Department.” (Emphasis added.)

On January 20, 1984, defendant filed a notice of intention to seek supervisory writs to annul the sentence, and by separate motion sought appellate review of the trial court’s action.

Defendant brings this matter for review as an appeal rather than as a supervisory writ as required by LSA-C.Cr.P. Art. 874. However, because defendant preserved his objection to the imposition of sentence by properly urging a motion to quash, and filed a notice of his intention to seek supervisory writs, we will consider the appeal as an application for supervisory writs and reach the • merits accordingly. State v. Givens, 403 So.2d 65 (La.1981); State v. Warner, 369 So.2d 135 (La.1979). In accord see Uniform Rules of the Courts of Appeal, Rule 1-3.

UNREASONABLE DELAY

Article 874 provides:

“Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the supreme court.

It is clear that a defendant is statutorily entitled to the imposition of sentence without unreasonable delay. City of Baton Rouge v. Bourgeois, 380 So.2d 63 (La.1980); State v. Johnson, 363 So.2d 458 (La.1978). Principles of fundamental fairness dictated by the due process clause of the Fourteenth Amendment prohibit inordinate delays in post-conviction proceedings such as the imposition of sentence when the delays prejudice the defendant. State v. Duncan, 396 So.2d 297 (La.1981). In determining whether the delay was unreasonable or prejudicial, the appellate court adopts a flexible approach in which all of the circumstances are evaluated on a case-by-case basis. Duncan, supra; City of Baton Rouge, supra. The sanction for an unreasonable delay in sentencing is the divestiture of the trial court’s jurisdiction to sentence the defendant. State v. McQueen, 308 So.2d 752 (La.1975).

The record in the case sub judice reveals a long, unjustified delay without good cause of approximately four and one-half years. The record is void of any evidence that defendant was ever notified of a sentencing date earlier than January 17, 1984, or that defendant concealed his whereabouts from the trial court or the State.

The State argues that the defendant was not prejudiced by the delay in sentencing because the trial court took this into consideration when it re-sentenced and reduced defendant’s sentence from ten to six years. We disagree. The reduced sentence did not cure the unreasonable and unjustified delay. Article 874 nor the jurisprudence holds that a reduced sentence cures an unreasonable and unjustifiable delay. The delay must be for good cause or necessitated because of special circumstances, none of which were present in the instant case. Accordingly, we find that the sentencing delay in the present case was unreasonable; therefore, the trial court erred in overruling defendant’s motion to quash the sentence.

DECREE

The ruling of the trial court is reversed and it is divested of jurisdiction to sentence the defendant for this offense; therefore, the sentence imposed on the defendant, Michael Milson, on January 20, 1984, is vacated and the defendant is hereby ordered discharged.

REVERSED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Hannon ROY Jr.
    No. CR83-1043.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Feb. 4,1985.
    Charles A. Riddle, III, Marksville, for defendant-appellant.
    J. Edward Knoll, Dist. Atty., Marksville, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   GUIDRY, Judge.

The defendant, Hannon Roy, Jr., was charged by grand jury indictment with two counts of obscenity, in violation of La.R.S. 14:106. On September 28, 1983, the defendant was convicted on one count by a six person jury. On November 3, 1983, the defendant was sentenced to serve eighteen months at hard labor. Defendant appeals his conviction.

FACTS

The incident in question occurred on July 16, 1983, in front of the defendant’s home. As Mrs. Bernadine Beauclair prepared to depart from her grandmother’s residence, she glanced out the driveway to check the traffic. While doing so, Mrs. Beauclair observed the defendant standing in his front yard with his pants down to his knees. According to Mrs. Beauclair, the defendant’s genitals were exposed. She added that the defendant was approximately fifteen feet from the public highway and was facing the road. Mrs. Beauclair, who was accompanied by her two young children, noted that the area where the defendant was standing was unobstructed. The defendant stood there while her vehicle went by, making no effort to cover himself.

On appeal, the defendant makes the following assignments of error:

1. The verdict of guilty was not supported by the evidence.
2. The trial court erred in denying his motion for a post-verdict judgment of acquittal.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By these assignments of error, defendant contends there was insufficient evidence presented by the State to establish the essential elements of the crime of obscenity beyond a reasonable doubt.

In State v. Sharp, 414 So.2d 752 (La.1982), the Supreme Court stated:

“In order for a conviction to stand, the evidence, when viewed in a light most favorable to the prosecution, must be sufficient to convince a reasonable trier of fact of the guilt of the defendant, beyond a reasonable doubt, of every element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Guillot, 389 So.2d 68 (La.1980)”

La.R.S. 14:106 defines the crime of obscenity. The provision pertinent to this prosecution provides:

“A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.”

Defendant was charged with committing obscenity by exposing his genitals in a place open to public view in a manner that was patently offensive. Defendant argues that he did not intentionally expose himself; he was not in a place open to public view; and, his actions were not “patently offensive.”

As stated earlier, the State adduced testimony from Mrs. Bernadine Beauclair that as she, along with her two young children, were leaving the driveway of her grandmother’s residence, she observed the defendant in front of his home. According to Mrs. Beauclair, the defendant had his pants down to his knees with his genitals exposed; he was facing the highway, approximately fifteen feet therefrom; the area was unobstructed; and, he made no effort to cover himself as Mrs. Beauclair drove by. Mrs. Beauclair testified that she found defendant’s conduct patently offensive.

In our view, this evidence, when considered in a light most favorable to the prosecution, was sufficient to convince a reasonable trier of fact that the defendant was guilty, beyond a reasonable doubt, of every element of the crime of obscenity as denounced by La.R.S. 14:106. See State v. Clark, 372 So.2d 1218 (La.1979).

For the above and foregoing reasons, the conviction of the defendant is affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED.

      . The defendant’s home is located a short distance across the highway from the grandmother’s residence.


author: DOMENGEAUX, Judge.

text:
    Jimmy P. BOUTON, Plaintiff-Appellant, v. CITY OF ABBEVILLE, et al., Defendants-Appellees.
    No. 83-1003.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Ernest J. Cormier, Lafayette, for plaintiff-appellant.
    Funderburk, Conque & Herpin, Joseph C. Kosarek, Theall & Fontana, Anthony Fon-tana, Cooper & Sonnier, Calvin E. Wood-ruff, Jr., Abbeville, for defendants-appel-lees.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

This appeal arises out of a suit brought by Jimmy P. Bouton, plaintiff-appellant, against Daniel R. Noel, Parrish Marcotte, the City of Abbeville, and Travelers Indemnity Company, defendants-appellees, for damages resulting from the alleged tortuous activity of some of the defendants.

At the time of the alleged activity, Mr. Bouton was a Captain on the Abbeville Police Force, Mr. Noel was Mayor of the defendant City, and Mr. Marcotte was an undercover agent. Travelers was the liability insurer • of the City of Abbeville.

The merits of this case have never been tried and are in no way relevant to the issues before us.

The suit was filed on September 13,1977. On April 14, 1983, almost six years after the case was originally filed, the attorney for defendant, Travelers Indemnity Company, who had previously filed a motion for summary judgment, moved the court to assign the case for trial on the merits, and an Order was signed setting a trial date of June 8, 1983.

On the day set for trial, plaintiff failed to appear personally or through counsel, although counsel for all other parties were present. Upon oral motion of the defendants, the district judge dismissed plaintiff’s suit without prejudice.

The appellant contends that the judgment of dismissal was improvidently issued.

The record indicates that at the time the Order assigning the trial date was signed, there had been no answers filed on behalf of any of the defendants.

Applicable here is La. C.C.P. Art. 1571 which prohibits the assignment of ordinary proceedings for trial except after answer is filed. Any judgment entered not in compliance with this provision is null and void. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir.1969), and Deville v. Gaudet, 361 So.2d 980 (La.App. 3rd Cir.1978).

Therefore, as this ordinary proceeding was assigned for trial on the merits prior to answers being filed, the judgment of dismissal is null and void, even though this case seems to be stagnant and stale.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for further proceedings and disposition.

Costs of this appeal assessed against ap-pellees. All other costs to await final determination of the case.

REVERSED AND REMANDED.

      . Plaintiff's counsel claims that he was not notified of the "trial” date, but the record indicates otherwise, and he has produced no credible legal evidence to the contrary. Nevertheless that issue is moot in view of our disposition of this appeal as shown hereinafter.


author: REDMANN, Chief Judge.

text:
    Larry P. GUTIERREZ v. Elmore BECNEL, Mid South Utilities and Equitable General Insurance Company.
    No. CA2971.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Samuel Richard Exnicios, Liska, Exnicios & Nungesser, New Orleans, for mover.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Plaintiff moves dismissal of defendants’ appeal (now lodged in this court) because defendants instructed the court reporter to delay transcribing the testimony because settlement was being negotiated. Plaintiff argues that was a “de facto abandonment of the appeal.”

La.C.C.P. 2162 provides: “An appeal can be dismissed ... if, under the rules of the appellate court, the appeal has been abandoned.” Plaintiff does not cite any court rule under which the appeal has been abandoned, and we find none. (Rule 2-8.6 is inapplicable.)

A litigant’s right to proceed to finality of judgment could be disserved by a court reporter’s acquiescence in an appellant’s unilateral instruction to delay transcribing the testimony. That is not shown to have happened here, however.

Appellants timely paid the estimated costs on March 15, 1984, and (apparently referring to that date) “a few days thereafter” asked the reporter to delay, but by April 9 instructed her to proceed. Thus appellants’ request delayed the transcript no more than three weeks, and then only if the court reporter were otherwise ready to work on the transcript. Apparently the court reporter was not. After April 9, she obtained a total of five thirty day extensions, until September 13, 1984, because she was so busy with other appeals that she could not find time to do this transcript.

We therefore conclude that appellants’ request for delay (to save transcript costs) during a three-week period pending settlement negotiations did not in fact delay this transcript. We therefore need not decide, in this case, whether the remedy for an appellant’s unilaterally causing the court reporter to delay the transcript is dismissal by the appeal after the record is lodged in the court of appeal.

Motion denied.


text:
    STATE of Louisiana v. Alex BROWN, III.
    No. K84-937.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 16, 1984.
    Philip G. Hunter, Führer, Flournoy & Hunter, Alexandria, for defendant-relator.
    George Metoyer, and Donald Johnson, Asst. Dist. Attys., Alexandria, for plaintiff-respondent.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

We granted a writ of certiorari in this case to consider defendant’s contention that the evidence failed to exclude every reasonable hypothesis of his innocence and therefore, the trial court erred in denying his motion for acquittal.

The record reflects that the State produced only circumstantial evidence of defendant’s guilt. In State v. Ledet, 458 So.2d 1024 (La.App. 3rd Cir.1984), we discussed the standard of review applicable in such cases stating:

“The standard of review as to sufficiency of the evidence to support a conviction is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all elements of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a case such as this involving circumstantial evidence, the defendant is entitled to have the jury instructed that the evidence must exclude every reasonable hypothesis of innocence. State v. Captville, 448 So.2d 676 (La.1984). In regard to the correct standard of appellate review in cases involving circumstantial evidence, the Louisiana Supreme Court has most recently made the following statement in State v. Chism, 436 So.2d 464 (La.1983):
‘Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.’
The above statement by the court in Chism was reiterated in State v. Captville, supra....

We have carefully reviewed the evidence presented in this case in light of the above standard and conclude that the trial court clearly erred in denying defendant’s motion for acquittal.

The only circumstantial evidence presented by the State to establish that defendant took money from Colson’s cash register is Colson’s testimony that while he was outside in front of his store, the defendant and his wife entered the store. Colson entered immediately behind them and, upon his entry, he observed the defendant coming from the area of the cash register and ice cream freezer. Upon opening the register to give change to defendant’s wife, Colson observed that there were no five or ten dollar bills in the cash register. Colson therefore assumed that defendant had taken all of the five and ten dollar bills from the cash register.

Colson testified that he did not know how much money was in the register nor did he know how much of it was in five and ten dollar denominations. He also testified that he did not observe the defendant remove anything from the cash register nor was he at the register when he first observed him. Colson merely testified that he saw the defendant come from the general area of the register which rests upon the ice cream freezer.

Colson testified that there was a stack of one dollar bills left in the register. He also testified that there had been several customers in and out of the store that morning and that he had not kept count of the money in the register. Colson had no recollection of when he last observed any five and ten dollar bills in the register nor did he recall who was the last customer in the store prior to defendant and his wife.

This evidence, when viewed in a light most favorable to the prosecution, clearly does not exclude every reasonable hypothesis of defendant’s innocence. One very reasonable hypothesis is that there were no five or ten dollar bills in the register when defendant entered Colson’s store given the facts that several customers had been in and out of the store that day; Colson had not kept count of the money in the register; and, had no recollection of when he last observed any five or ten dollar bills in the register. Another reasonable hypothesis is that someone other than defendant could have entered the store unnoticed, removed the money and absconded undetected. This hypothesis is reasonable considering the evidence that Colson was often outside his store busying himself in other tasks; Colson is hard of hearing; the cash register is not locked and makes no audible sound upon being opened; when defendant was apprehended no money was discovered on his person; defendant and his wife were in the Colson store alone only momentarily before Colson entered; and, Colson did not observe defendant remove anything from the cash register nor was he at the register when Colson first observed him.

Considering the above, we conclude that the totality of the evidence when considered in a light most favorable to the prosecution fails to exclude every reasonable hypothesis of defendant’s innocence and the trial court clearly erred in holding otherwise. Accordingly, the writ granted is made peremptory and defendant’s conviction and sentence are reversed and set aside and a judgment of acquittal is entered in defendant’s favor.

REVERSED — JUDGMENT OF ACQUITTAL ENTERED.


text:
    Sidney Harvey WONG v. Dorothy Elaine CLAMPFFER.
    No. 55047.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Rehearing Denied Dec. 5, 1984.
    Dempsey M. Levi, Theresa D. McLaughlin, Levi & Denham, Ocean Springs, for appellant.
    Richard B. Graves, II, Graves, Riley, Meadows & Walker, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Supreme Court Justice.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    Kevin Neal GIBSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 54420.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Rehearing Denied Nov. 28, 1984.
    John Arthur Eaves, Eaves & Eaves, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

Kevin Neal Gibson has been convicted of manslaughter and sentenced to serve a term of eight years in the custody of the Mississippi Department of Corrections. This conviction arose out of an incident occurring on September 19, 1981, wherein Bobby J. Kimble was struck and killed by an automobile driven by Gibson on Interstate Highway 20 about a quarter of a mile past the airport interchange in Rankin County, Mississippi.

The evidence suggesting culpability sufficient to elevate the offense to manslaughter is thin, to say the least. Cf Dickerson v. State, 441 So.2d 536, 539-40 (Miss.1983) (examination of what facts are necessary). A review of the entire record makes clear that the most damaging evidence against Gibson was the result of the blood/alcohol test. Not surprisingly, on this appeal Gibson concentrates his energies on his assignment of error that the results of the blood alcohol test were inadmissible on various grounds.

It appears without contradiction in the record that the blood collection kit used in connection with this test had expired in December of 1980. (The label on the kit is attached as an appendix to this opinion.) The accident occured September 19, 1981. In other words, the law enforcement authorities in this case utilized a blood collee-' tion kit which had been expired for some 262 days. This will not do.

Scientific evidence has become an increasingly important part of the search for the truth in which our courts are engaged daily. Safeguards to assure the integrity of scientific evidence are generally required and strictly enforced. Once it was made manifest to the Court that the blood collection kit used in this case had been expired for over nine months, the State at the very least had the burden of explaining that this lapse of time did not impair the integrity of the results of the test. This the State failed to do.

Put another way, on this record the State failed to lay a proper foundation for the admission into evidence of the results of the blood alcohol test. State v. Brewer, 344 A.2d 54, 56 (Me.1975); State v. Rines, 269 A.2d 9, 15-16 (Me.1970).

The conviction of Kevin Neal Gibson on the charge of manslaughter is reversed, and this case is remanded for a new trial at which the results of the blood alcohol test may not be used against him.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ„ concur.

PATTERSON, C.J., not participating.

APPENDIX


author: PRATHER, Justice,

text:
    J.B. CAIN d/b/a Big Stream Well Drilling v. MID-SOUTH PUMP COMPANY.
    No. 55034.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    As Modified on Denial of Rehearing Nov. 21, 1984.

      Briggs Smith, Smith & Phillips, Bates-ville, for appellant.
    Peggy A. Jones, Warren & Jones, Holly Springs, for appellee.
    Before BOWLING, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This suit was filed in the Circuit Court of Tate County by Mid-South Pump Company against J.B. Cain on an open account. Cain counter-claimed for consequential damages incurred for replacement costs on faulty pumps purchased from Mid-South. From a directed verdict against J.B. Cain for insufficiency of proof of damages, Cain appeals, asserting that the proof was sufficient.

The question presented is whether testimony of a water well driller with 23 years experience as to the estimated cost of repair was sufficient to establish the amount of damages without the jury speculating, conjecturing or surmising.

I.

Mid-South Pump Company is a Tennessee corporation located in Memphis. J.B. Cain, d/b/a Big Stream Well Drilling is a sole proprietorship operating out of Senato-bia, Mississippi. Cain, a water well-driller, was sued on an open account by Mid-South Pump for items purchased in connection with drilling and repairing wells. Mid-South’s bookkeeper introduced numerous sales receipts proving that J.B. Cain, between December 11, 1978 and January 31, 1980, purchased $10,717.47 worth of goods from Mid-South. The difference between $10,717.47 and the amount sued for, $18,-590.53, was the accrued service charges on the unpaid balance of the account. After introducing this evidence the plaintiff rested.

Cain counter-claimed, asking for an offset in the amount of $5,600.00, which represented the amount of labor it took to repair fifteen wells which failed because the pumps, purchased from Mid-South, were defective. His claim arose from the consequential damages he suffered in replacing defective pumps which were warranted by Mid-South.

Cain, who had been in the water well drilling business for 23 years, explained it takes a three-man crew two sixteen hour days to replace a well pump at a cost to him for each well of approximately $350.00 in labor and equipment. Each time a pump failed under warranty, Mr. Cain would take it to Mid-South in Memphis for replacement. The defective pumps had been installed from two weeks to three or four months before failure occurred. Cain named fifteen specific clients who had to have their defective well pumps or motors replaced. However, Mr. Cain was unable to provide specific dates on which the pumps failed or the exact amount of man-hours of labor it took to replace them.

Cain stated that he would tell the Mid-South representative that he should be entitled to labor cost for replacing the faulty pumps and motors. It was admitted by Cain that he owed Mid-South approximately $10,717.47 for materials he purchased from them. No charge was made for replacement pumps. However, Mr. Cain further denied he should pay a finance charge on the outstanding balance of the account since such balance was in dispute, in that no allowance was made by Mid-South for the labor performed by Cain in replacing the well pumps.

After hearing the testimony, the trial court concluded the proof presented by Cain concerning the cost of labor to replace the well pumps was insufficient as a matter of law, and would cause the jury to speculate as to damages.

Therefore, the lower court sustained a directed verdict against Mr. Cain and damages were assessed as a matter of law at $18,590.53.

II.

Was the testimony of defendant, a water well driller with twenty-three years experience, as to estimated cost of repair of a water well, sufficient to establish the amount of damages?

Obviously, a water well driller with 23 years of experience would qualify as an expert in the field and should be able to estimate how much it costs to replace a water well pump or motor. In Schoppe v. Allied Chemical Division, 418 So.2d 833 (Miss.1982) this Court held that formal education is not the only means of becoming an expert in a field. A witness may qualify to give an expert opinion through his experience only. See also, Merritt v. Dueitt, 455 So.2d 792, (Miss.1984); Early-Gary Inc. v. Walters, 294 So.2d 181 (Miss.1974), to the same effect.

The central issue of this ease is whether enough evidence was presented by Mr. Cain to provide the jury with a reasonable basis for computing damages. For a general understanding of what constitutes a sufficiency of proof to sustain an award, we note:

... [WJhere it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a foundation which will enable the trier of facts to make a fair and reasonable estimate of the amount of damage. The plaintiff will not be denied a substantial recovery if he has produced the best evidence available ,and it is sufficient to afford a reasonable basis for estimating his loss.

22 Am.Jur.2d Damages § 25 (1965).

Mississippi is in accord with this principle. In Shell Petroleum Corp. v. Yandell, 172 Miss. 55, 158 So. 787 (1935), this Court stated: “[t]he damages for a breach of contract are such as the parties may have reasonably expected to flow from the breach. The damages are speculative when the cause is uncertain, not when the amount is uncertain.” 158 So. at 790.

Likewise, in Hawkins Hardware Co. v. Crews, 176 Miss. 434, 169 So. 767 (1936), it was held:

When the cause of the damages is reasonably certain, recovery is not to be denied because the data in proof does not furnish a perfect measure thereof, Mont gomery Ward & Co. v. Hutchinson, 173 Miss. 701, 708,159 So. 862; and in a case like the one now before us, it is enough that sufficient facts are given from which the jury may safely make at least a minimum estimate.

169 So. at 769.

In Ross v. Deposit Guaranty National Bank, 400 F.Supp. 45 (S.D.Miss.1974), the District Court held under Mississippi law, the lack of a perfect measure of damages will not prevent recovery, but nonetheless, damages must be reasonably certain and not purely speculative.

In the case sub judice, Mr. Cain’s damages were not purely speculative. His qualifications evidencing expertise in his business were sufficient to state his opinion based upon his knowledge and experience.

Mr. Cain presented uncontradicted evidence that fifteen pumps had to be replaced at a cost to him of approximately $350.00 each, giving fifteen specific names of customers for whom he had replaced faulty Mid-South pumps and motors. There was no dispute concerning the reasonableness of this figure. While it is true Mr. Cain could not provide the exact dates the pumps went out, other than stating they went out in 1980 or 1981, or prove exactly how much it cost to replace them, this should not prevent his recovery if the jury accepted his estimates. We note that no objection was made as to the best evidence rule. We, therefore, hold a jury question was presented.

III.

Mid-South also claims that Cain’s failure to give written notice of a defective product, as required by Tennessee law, prevents recovery by Cain of any alleged offset.

Although not technically raised as a cross-appeal by the appellee, Mid-South, this Court considers this assignment of the appellee as such a cross-appeal. The contention of Mid-South of reliance on Tennessee law was not alleged in the appellee’s answer to counter-claim in the trial court. This Court, therefore, does not consider it on appeal. If upon retrial, the appellee desires to raise the issue, Mid-South may apply to the trial court to amend its answer for a full consideration of all issues.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.