author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Regina GLAZE.
    No. 83 KA 0119.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by Thomas Dam-ico, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Frank Saia, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Regina Glaze, defendant, was indicted by the East Baton Rouge Parish Grand Jury and charged with the second degree murder of Dennis Foshee, in violation of La.R.S. 14:30.1. After a trial by jury, she was found guilty and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. She has appealed her conviction and sentence.

Defendant has assigned twelve errors; however, only six were briefed. Pursuant to Rule 2-12.4 of the Uniform Rules of the Court of Appeal, assignments of error numbers 1, 4, 6, 8, 10 and 12 are considered abandoned. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NO. 2

Defendant argues that she was denied her constitutional right to an impartial trial and to full voir-dire as guaranteed by article I, § 16 and § 17, Louisiana Constitution of 1974, when the court denied her challenge for cause of prospective juror Edward J. Sweeney. During voir dire, he expressed some reservations about his ability to fairly consider defendant’s right not to testify as guaranteed by the fifth amendment to the U.S. Constitution. Defense counsel attempted to exercise a peremptory challenge on Sweeney as per La.C.Cr.P. 799, apparently relying on the court reporter’s count of defendant’s previous peremptory challenges. The State objected, noting that according to its count, defendant had exhausted all of her peremptory challenges. A tally made by the court and counsel verified that defendant had, indeed, previously used twelve challenges. The court reporter noted her error. Defense counsel then challenged Sweeney for cause because Sweeney knew that he was not acceptable to defendant and would therefore be a hostile juror. The State accepted Sweeney. The trial judge interrogated Sweeney out of the presence of eleven jurors who had been already accepted to determine if Sweeney could render an impartial verdict according to the law and evidence presented at trial in accordance with La.C.Cr.P. 797(2). After the court’s examination, defendant’s challenge for cause was denied.

The trial court should sustain a challenge for cause despite a prospective juror’s professed impartiality if his answers reveal facts from which bias, prejudice or inability to follow the law may be reasonably implied. State v. Albert, 414 So.2d 680 (La.1982); State v. Lewis, 391 So.2d 1156 (La.1980). In this regard, defendant need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to sustain a challenge for cause by defendant, and (2) that defendant exhausted all of his peremptory challenges. State v. Monroe, 366 So.2d 1345, 1347 (La.1978). The trial judge is vested with broad discretion in ruling on a challenge for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Labostrie, 358 So.2d 1243 (La.1978).

We have already noted that defendant exhausted all of his peremptory challenges. We need only determine whether the trial judge abused his discretion in finding that Sweeney could render an impartial verdict according to the law and evidence. In reviewing Sweeney’s examination on voir dire, we note that he originally expressed some difficulty with the legal principle of law that the defendant does not have to testify. When asked if he understood the law and if under oath would accept it and apply it, he said “I think I can.” The court asked him to state “not just what you think,” but if he could apply the law under oath. Sweeney replied that he thought he could disregard his doubts and apply the law. Sweeney further stated that he felt he could be fair to both defendant and the State. He stated that he understood that defendant had a right not to testify. He said that he could give both sides a fair trial. Upon further questioning by the trial judge, subsequent to defendant’s erroneous peremptory challenge, Sweeney declared under oath that he could base his verdict solely on the evidence and the law. He further stated that he would convict defendant if the State convinced him beyond a reasonable doubt of defendant’s guilt, but, on the other hand, would find for defendant if the State failed to prove his guilt beyond a reasonable doubt.

After carefully examining the record, we cannot say that the trial judge abused his discretion in believing that Sweeney could render an impartial and fair verdict according to the law and evidence. This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 3, 5 and 7

Defendant consolidated these assignments of error for purposes of argument, as they all involve hearsay statements admitted into evidence over her objection. We also will treat them together. Defendant argues that the court erred in admitting into evidence certain incriminating statements made by her some five days to three weeks prior to the commission of the crime. She contends that the State’s reliance on the state of mind exception to the hearsay rule is misplaced because of remoteness of the statements from the crime. Robin Melvin testified that some days before the shooting defendant said that before she would see him with anyone else she would see him dead. Susan Tumlin testified that 4 to 5 days before the shooting defendant was at her house and they talked about her relationship with Dennis. When asked what she would do if they broke up, defendant said she might cry and scream, might shoot herself or him, or might just say okay and leave. Tumlin also testified that about three weeks before the shooting, defendant acted out a pantomime where she shot Dennis with a gun.

Several Louisiana cases have held that the time interval between the utterance offered in evidence and the commission of the crime was too long to hold such utterance admissible under res gestae. See, for example, State v. Burge, 362 So.2d 1371 (La.1978); State v. Noble, 342 So.2d 170 (La.1977). These cases are relied on by defendant in her brief. See also La.R.S. 15:447, 448.

However, the record reveals that the trial judge relied primarily on State v. Moses, 367 So.2d 800 (La.1979) and State v. Leming, 217 La. 257, 46 So.2d 262 (1950), when he allowed into evidence the hearsay statements made by defendant prior to the commission of the crime. These statements were offered by the State to show defendant’s state of mind and motive or intent to commit the crime in question. La.R.S. 15:446. In Leming, the trial court admitted into evidence testimony indicating that the accused made a statement to the effect that she intended to have the deceased’s husband no matter what the cost to get him. This statement was made by the defendant 23 days before the wife was killed. The Supreme Court said:

The purpose of this evidence was to show motive for the killing on the part of the defendant and the evidence of prior acts, declarations and threats of the accused, though not part of the res gestae is admissible when it substantially tends to establish motive or intention of the accused to commit the crime. 46 So.2d at 274.

In State v. Flood, 301 So.2d 637 (La.1974), cert. denied 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975), the court admitted testimony as to marital disaffection as evidence of motive.

We agree with the trial court and find that these statements were admitted to show state of mind, motive, etc., as enumerated in La.R.S. 15:446. The res gestae exception to the hearsay rule is not involved. The time interval between the utterance and the commission of the crime is not pertinent when state of mind, motive or intent is being shown.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends that the trial judge erred when he refused to allow into evidence at trial a recorded statement made by her to a deputy sheriff the day after the crime was committed. She says that the recorded statement was exculpatory and relative to the issue of self-defense and, further, that it should have been admitted into evidence under the res gestae exception to the hearsay rule. Defendant further urges that she was denied her constitutional right to present a defense when the trial judge sustained the State’s hearsay objection to the recorded statement. U.S. Const. amend. VI; La. Const. art. I, § 16 (1974).

The record reveals that defense counsel attempted to elicit from Dwayne T. Jones, a deputy sheriff, testimony as to the contents of a recorded statement made to him by defendant. The State objected on the grounds’ that the out-of-court recorded statement was hearsay. The trial judge sustained the objection, relying on State v. Bodley, 394 So.2d 584 (La.1981). Defense counsel then objected to the judge’s ruling, assigning error, stating, “For the record, it will be our position that it’s res gestae; it’s much ... as relevant as the statements made four days before.” At that point, there was no further argument in court on the admissibility of defendant’s out-of-court recorded statement. Upon subsequent cross-examination, the State did establish that the recorded statement was given to Jones at noon on the day following the commission of the crime, some 13 hours after the shooting. At that point, defense counsel did not present an argument as to why the statement was relevant to defendant’s allegation that she acted in self-defense, nor was the recorded statement in question proffered by the defense.

We have noted that the defense attempted to offer the contents of the out-of-court statement under the res gestae exception to the hearsay rule. However, in brief, defense counsel says that defendant was denied her constitutional right to present a defense when the statement was excluded. A new basis for an objection may not be urged for the first time on appeal. State v. Sims, 426 So.2d 148 (La.1983).

But should we examine this new argument, we note that the Supreme Court in State v. Ludwig, 423 So.2d 1073 (La.1982), held that constitutional guarantees do not require the trial court to permit the introduction of evidence that is irrelevant or which has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. The evidence which the defendant in Ludwig sought to introduce was held to have only slight probative value because it concerned a self-serving exculpatory statement made by the defendant to a police officer while in police custody. Here, the evidence which defendant sought to introduce was also at most of only slight probative value because it concerned an exculpatory statement made by defendant to a police officer while in custody some 13 hours after the commission of the crime. Cf. State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968).

Since the record before us does not contain the recorded statement or a copy of its contents, and no argument or foundation was made in court by defendant to establish the relevancy of defendant’s out-of-court recorded statement, we cannot say that the judge has abused his discretion. The record does reveal that the statement in question was made to a deputy sheriff while defendant was subject to custodial interrogation; that, as part of the investigation, a deputy sheriff took defendant into custody and accompanied her to the hospital; that she gave the recorded statement in question to the deputy after her release from the hospital; and that an interval of 13 hours elapsed between the commission of the crime and the making of the statement.

We especially note here that there is no other evidence in the record that defendant acted in self-defense; in fact, the evidence tends to establish that the victim was a mild-mannered social drinker who collected guns and was a victim of an act of aggression by defendant.

Defendant also argues that the out-of-court recorded statement made by her some 13 hours after the commission of the crime should have been admitted into testimony under the res gestae exception to the hearsay rule. We hold that the statement does not fall within such exception. La.R.S. 15:448, entitled “Relation of res gestae to criminal act,” reads as follows:

To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

See also State v. Sharp, 414 So.2d 752 (La.1982).

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 11

Defendant urges that the trial court erred when it denied her motion for post-verdict judgment of acquittal, arguing that the evidence at trial, viewed in the light most favorable to the State, did not reasonably permit a finding of guilt.

The applicable standard of review is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proved beyond a reasonable doubt. La.C.Cr.P. art. 821; State of Louisiana v. Carl Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

The record reveals that, almost immediately following the shooting, defendant called Janice Latimer, a friend, and admitted to her that she had shot the victim, saying, “I don’t know why I shot him. I loved him. He was my very life.” Sally Rowell testified that defendant called her almost immediately after the shooting and said, “He’s dead. I shot him and he’s dead.” Sally Rowell then told defendant to stay where she was and she would be right over. When she arrived at the scene of the crime, she found defendant on the front porch smoking a cigarette, and Dennis Foshee was dead on the floor in the kitchen. Defendant said once more that she had shot him and killed him.

When asked if defendant had made any statements concerning self-defense, both Latimer and Rowell testified in the negative. They also testified that Foshee was not a heavy drinker, probably an occasional drinker. They further testified that he was always a mild-mannered person and that they had never seen him carry a gun on his person.

Robin Melvin testified that defendant, a week before the shooting, stated to her that before she would see Dennis with anyone else, she would see him dead. Susan Tum-lin testified that four or five days prior to the shooting, defendant stated to her that if “splitting up” was brought up again, defendant “might cry and scream; she might shoot herself or him; or she might just said (sic), ‘O.K.’ and leave.”

The pathologist who performed the autopsy testified that Foshee was killed by five shots from a rifle. While he was unable to determine the sequence of the five shots which penetrated Foshee’s body, he was of the opinion that one shot hit him while his arm was raised in a defensive position and that other shots hit him while he was lying down.

Defendant bases her argument that she acted in self-defense on evidence that Fosh-ee was intoxicated at the time of the crime and was a collector of guns. The State’s evidence presents a strong showing that this killing was not necessary to prevent the loss of defendant’s life or to prevent great bodily harm to her and that the force she used was unreasonable under the circumstances. La.R.S. 14:20.

We find that the evidence fully supports the finding of guilt for every element of the offense of second degree murder. This assignment of error lacks merit.

For all these reasons, we find that the verdict and sentence are correct, and we affirm.

AFFIRMED.

      . The trial judge gave a very clear explanation of the theory behind the law which allows defendant to invoke his Fifth Amendment privilege against self-incrimination in criminal trials. Sweeney responded that he understood the law.

      . The State in brief states that defendant made a proffer of the recorded statement; however, the transcript shows that defendant never tendered the statement as a proffer, and it does not comprise any part of this record.


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willard PAUL.
    No. 83 KA 0157.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty., by Leila Withers, Baton Rouge, Asst. Dist. Atty., for plaintiff-appellee.
    Leon Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Willard A. Paul, was charged with armed robbery, in violation of La.R.S. 14:64. He entered a plea of not guilty and, after a trial by jury, was found guilty as charged. Paul filed a motion for a new trial alleging the discovery of new and material evidence. The trial court denied the motion and sentenced Paul to serve five years at hard labor without benefit of probation, parole or suspension of sentence. This appeal followed.

FACTS

The evidence presented by the State indicated that on November 7, 1981, Estella Woods was a salesgirl for the Eckerd Drug Store located at 3651 Perkins Road in East Baton Rouge Parish, Louisiana. Prior to the 9:00 P.M. closing time, Paul and another male entered the Eckerd Store, went to the counter serviced by Woods and looked at a Sony radio worth approximately $180 and a small tape recorder. The pair left the store, but Paul returned alone just minutes prior to closing time. Paul again approached Woods’ counter, pulled up his shirt and removed a gun from his waistband and pointed it at her. Paul told Woods that his partner was outside with a gun pointed at her head and if she opened her mouth the partner would kill her. Paul walked to the end of the counter, picked up the Sony radio and started walking out of the store. Another salesgirl, Susan Booker, observed Paul take the radio and start walking out. The store’s assistant manager, Emmett J. Moore, Jr., also saw Paul walking out past the checkout booth without stopping. Moore and Booker started towards Paul. Woods approached them and warned them not to go further because Paul had a gun. Booker testified without objection that Woods was scared to death. Booker and Moore testified that they did not observe the gun. Woods was the only person to see a gun in Paul’s possession. On November 9, 1981, Paul returned to the Eckerd Store. He was observed by both Woods and Booker and the police were called. A customer, who was in the store having a prescription filled, heard the conversations of the store employees about Paul and saw him leave the store. The customer followed Paul and observed him get in a car and drive off. The customer followed Paul’s vehicle, obtained the vehicle’s license plate number, returned to the store and gave the number to the pharmacist. The police arrived at the store, and the license number of Paul’s vehicle was given to them. Paul was arrested on November 10, 1981.

Paul took the witness stand in his own defense and testified that on November 7, 1981, he went to the Eckerd Store with Gaylord Lee for the purpose of shoplifting. A third individual, Michael Cummings, remained in the parking lot in or near the car. Paul and Lee went to Woods’ counter and looked at a radio and a small tape recorder. Paul entered into a conversation with Woods who seemed to be friendly toward him. Paul and Lee left the store. Paul advised Lee that he wanted to try to talk Woods out of the radio. Paul returned to the store and commenced a conversation with Woods. During the conversation, Woods agreed to let Paul have the radio if he did not let anyone see him take it. Paul denied having a gun. Paul took the radio, left the store and subsequently sold the radio to a third person. Paul returned to the store on November 9, 1981, in an attempt to persuade Woods to let him have another radio. When he was in the store, he saw Woods talking with another person and, because she looked “suspicious”, he left. On cross-examination by the State, Paul testified that Woods told the story she did to protect her job when he was observed leaving the store on November 7,1981, with the radio. Gaylord Lee also testified and generally corroborated Paul’s story.

MOTION FOR NEW TRIAL

The defendant contends that the trial court committed error by denying his motion for a new trial based on the discovery of new and material evidence. La.C.Cr.P. art. 851(3).

At the hearing on the motion for the new trial, the defendant called as a witness J. Darrell White, an employee of the East Baton Rouge District Attorney’s Office. White testified that on the morning of the trial, he talked to Estella Woods who advised him that she was no longer employed by Eckerd. White then gave the following testimony:

Q. Did she give you a reason for resigning?
A. Yes. She said that advice from her attorney said it would probably be best that, uh, she just not go back to work there and — think there was a plan of a suit or something. It was just small talk.
Q. She was engaged — she was presently there at that time engaged in a civil suit with Eckerd’s?
A. From the best that I could remember.
Q. Did she indicate to you that the reason she resigned was due to the fact there was some shortage in funds and or merchandise at her register or wherever it was?
A. She said she was not charged, uh, it was just the allegation that was made, uh, and it kind of indicated in her direction so she just got with her attorney and he thought it would be best that she did not go back to work there.
Q. Allegations were made that funds were short—
A. Yeah, that the register was short.
Q. —and or that merchandise was short?
A. Not — You know, no one said, you know, that it was her in particular, but she felt that it was being pointed in her direction.
Q. Based on that she resigned?

A. Well, just didn’t go back to work. White further testified that he gave this information to Paul’s attorney after the trial was over. Neither Paul nor the State called either Woods or a representative of Eckerd to testify at the hearing. The defendant contends that the evidence that Woods resigned from her employment with Eckerd because of alleged shortages in her register would have enabled him to impeach her credibility and that the trial court committed error by failing to grant the motion for a new trial.

The law applicable to the granting of a new trial, based on newly discovered evidence, is set forth in State v. Clayton, 427 So.2d 827, 832 (La.1983) as follows:

The burden is on the defendant to show that the new evidence was not discoverable prior to or during trial and that if the evidence had been introduced at trial, the new evidence probably would have caused the trier of fact to reach a different verdict. State v. Coleman, 390 So.2d 865 (La.1980).
The trial judge is afforded considerable discretion in evaluating the impact of newly discovered evidence, and his denial of a motion for a new trial will not be disturbed on appeal absent a clear abuse of that discretion. State v. Talbot, 408 So.2d 861 (La.1981) (on rehearing); State v. Spell, 399 So.2d 551 (La.1981). In evaluating whether the newly discovered evidence warrants a new trial, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial. State v. Molinario, 400 So.2d 596 (La.1981); State v. Bagley, 378 So.2d 1356 (La.1979); State v. Williams, 362 So.2d 530 (La.1978).. ..

See also State v. Robicheaux, 412 So.2d 1313 (La.1982).

In a criminal trial, each side has the right to impeach the credibility of a witness sworn on behalf of the other side. La.R.S. 15:486. However, the witness may only be impeached with matters that are material and relevant to the issues in the trial; it is not competent to impeach a witness as to collateral facts or irrelevant matter. La. R.S. 15:494.

The testimony of J. Darrell White that Estella Woods resigned from her job with Eckerd on the advice of her attorney because of a civil suit or potential civil suit concerning shortages in her register does not provide a basis for impeaching Woods’ testimony at the trial. Although the credibility of a witness may be attacked generally by showing that his (or her) general reputation for truth or for moral character is bad, such an attack must be limited to general reputation and cannot go into particular acts, vices or courses of conduct. La.R.S. 15:490-491; State v. Frentz, 354 So.2d 1007 (La.1978). White’s testimony does not indicate that the alleged register shortage was in any way connected with the offense committed by Paul, and thus this evidence has no bearing on the credibility of the witness in the instant case. La. R.S. 15:490. White’s testimony does not show that Woods has been convicted of a crime. La.R.S. 15:495. White’s testimony does not show that Woods was biased, had an interest in the case or was corrupted. La.R.S. 15:492. The evidence does not reflect that Woods’ dispute with Eckerd created a personal bias against the defendant. State v. Bretz, 394 So.2d 245 (La.1981). The evidence does not reflect that the dispute resulted in criminal charges that the district attorney’s office used as “leverage” over her. State v. Brady, 381 So.2d 819 (La.1980).

One of the essential requisites a defendant seeking a new trial based on newly discovered evidence must prove is that the evidence is material to the issues at the trial. State v. Talbot, 408 So.2d 861 (La.1980). The defendant in the instant case has failed to show that the newly discovered evidence impeaches the witness. Since the newly discovered evidence cannot be used for impeachment, it is neither material or relevant to these proceedings. The judgment of the trial court rejecting the application for the new trial is correct.

CONCLUSION

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

AFFIRMED.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Leonard BUGGAGE.
    No. 83 KA 0160.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Leon A. Picou, Jr., St. Francisville, for plaintiff.
    Jesse Means, St. Francisville, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Leonard Buggage was convicted of the crime of possession of pentazocine, with intent to distribute, a violation of LSA-R.S. 40:967 A. He appeals.

No assignments of error were filed in the record before the trial court pursuant to LSA-C.Cr.P. art. 844. However, counsel for defendant adverts to two possible errors in brief before the Court: (1) the alleged break in the chain of possession in the laboratory analysis of the substance found in Buggage’s possession, and (2) the failure of the evidence to support a conviction.

LSA-C.Cr.P. art. 920 reads as follows:

“The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

In the present case, neither of the alleged errors would be discoverable without an inspection of the evidence. Neither alleged error is contained in an assignment of error made available to the trial court. LSA-C.Cr.P. art. 844. Hence, we are not at liberty, by statute, to consider either possible error argued by defense counsel.

Conviction and sentence are affirmed.

AFFIRMED.

      . In State v. Raymo, 419 So.2d 858 (La.1982) at p. 861, the Supreme Court stated “regardless of how the error is brought to the attention of the reviewing court”, the question of sufficiency of evidence, or the lack of, to convict a defendant can be reviewed on appeal ex proprio motu, “without considering the defendant’s assignments of error”. Therefore, we have reviewed the testimony taken at trial and the evidence presented and find that there is sufficient evidence in the record to find defendant guilty under the standards set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438.


text:
    STATE of Louisiana v. Keith DEES.
    Nos. 83 KA 0168, 83 KA 0169.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by John Sinque-field, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Phillip Shaheen, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Keith D. Dees, was charged with committing aggravated rape and aggravated crime against nature of a nine-year-old male child, in violation of La. R.S. 14:42 and 14:89.1. The defendant entered pleas of not guilty and not guilty by reason of insanity to both charges. On joint motion of the parties, the charges were consolidated, and after a trial by jury, the defendant was found guilty as charged. The trial court sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the aggravated rape charge. On the aggravated crime against nature charge, the defendant was sentenced to confinement at hard labor for fifteen years without benefit of suspension of sentence, probation or parole, and the trial court ordered this sentence to run concurrently with the sentence imposed on the aggravated rape. This appeal followed.

FACTS

On September 2,1982, the victim, a nine-year-old male child, went to his neighbor’s house located in the Parish of East Baton Rouge, Louisiana. The defendant, Keith D. Dees, was present at the neighbor’s house visiting friends. Dees told the victim that he had a bicycle that he would give him if he (the victim) would go to the defendant’s residence to get it. After arriving at Dees’ home, it was discovered that the bicycle was broken. Dees and the victim went to a bedroom in the house to get a screwdriver to fix the bike. In the bedroom, Dees reached into a closet and pulled a gun which he pointed at the child. Dees then struck the child and knocked him down. Dees made the child undress, get on a bed with him and had the child perform oral sex upon him. Thereafter, Dees had anal sexual intercourse with the child. After these acts were completed, Dees told the child that he would kill him and his mother if he told anyone of these incidents.

COMPETENCY OF CHILD TO TESTIFY

The only assignment of error urged by the defendant in these appeals is that the trial court committed error by ruling that the victim, who was ten years old at the time of the trial, was competent to testify at the trial.

La.R.S. 15:469 provides as follows:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

When the State called the victim to testify at the trial, the trial judge retired the jury and conducted a competency hearing pursuant to La.R.S. 15:469 out of the jury’s presence. The child was sworn and examined by the State, the defendant and the court. He correctly gave his age (ten at the time of trial) and his date of birth. He testified that he was in fifth grade, gave the name of his school and advised that his grades were A’s and B’s. He testified that he knew what it meant to tell the truth, what it meant to tell a lie and that he understood the importance of telling the truth in court. He further testified that he believed in God, that he understood he was under oath to tell the truth and that it was wrong to tell a lie. Based on this testimony, the trial judge ruled that the child was competent to testify.

The determination of the trial judge that a child witness is competent is based upon the child’s answers to questions testing his understanding and on the child’s overall demeanor on the witness stand. State v. Humphrey, 412 So.2d 507 (La.1981). The determination of a trial judge, as to whether or not a child has the required sufficient understanding, is entitled to great weight because he (or she) has the advantage of seeing and hearing the witness. State v. Edwards, 420 So.2d 663 (La.1982); State v. Edwards, 419 So.2d 881 (La.1982); State v. Skipper, 387 So.2d 592 (La.1980). The trial judge has great discretion in determining the competency of a child witness, and his ruling will not be disturbed unless testimony brought up shows that the ruling was manifestly erroneous. State v. Arnaud, 412 So.2d 1013 (La.1982).

The testimony of the child at the competency hearing clearly shows that he had sufficient understanding to be a witness. This conclusion is reinforced by the clarity of the child’s testimony before the jury. Children of a younger age have been allowed to testify where their competency has been sufficiently proven. Edwards, 420 So.2d at 676 (eight years old); Edwards, 419 So.2d at 890 (five years old at time of crime, six years old at time of trial); Arnaud, 412 So.2d at 1018 (four years old); Humphrey, 412 So.2d at 516 (seven years old at time of crime and nine years old at time of trial); Skipper, 387 So.2d at 594-595 (ages five and seven).

The ruling of the trial judge, determining that the ten-year-old victim was competent to testify, is correct.

CONCLUSION

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

AFFIRMED.

      . The aggravated rape charge was instituted by a grand jury indictment, and the aggravated crime against nature charge was instituted by a bill of information.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Michael JACKSON.
    No. 83 KA 0170.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Ossie Brown, Dist. Atty. by Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    David Price, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Michael L. Jackson, was charged by bill of information with purse snatching in violation of La.R.S. 14:65.1. The defendant was tried by a jury on September 30,1982, but the jury was unable to reach a verdict, resulting in a mistrial. He was then retried by jury and found guilty as charged. The trial court sentenced him to four (4) years imprisonment at hard labor.

The victim, Rose Rigby, was shopping in the supermarket when her wallet was stolen from her shopping cart. Ms. Rigby testified that defendant bumped into her cart with his cart in the produce section. Immediately thereafter, she noticed her wallet was gone. The victim watched defendant, who then stopped at further points along the produce aisle. She notified a store employee that the defendant had stolen her wallet. The employee then contacted a city police detective who was working for the store that afternoon. The detective approached defendant and patted him down. He did not find the wallet in defendant’s cart or on his person. However, he did find the wallet, with money and cards still inside, at that point along the produce aisle where the victim indicated she had seen the defendant stop.

ASSIGNMENT OF ERROR NUMBER 3:

In this assignment of error, defendant complains that the trial court erred in allowing the state to refer to the definition of “snatching” from Webster’s Dictionary in his closing argument. Defendant alleges that the state used a source outside the law and, in doing so, removed the jury’s right to interpretation. The state argues that under the provisions of La.C.Cr.P. Art. 774, the closing argument may include matters of general or common knowledge and that a definition from Webster’s Dictionary would surely be considered such. The state also cites State v. Anderson, 418 So.2d 551 (La.1982), wherein the court apparently allowed the use of a dictionary in defining the word “snatching”. We note, however, that the use of the dictionary was not at issue in Anderson.

Here, we do not find the prosecutor’s use of a dictionary to define “snatching” to be prejudicial to defendant. La.R.S. 14:3 provides that all the provisions of the criminal code “shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

La.C.Cr.P. Art. 774 provides that argument is to be confined to evidence admitted, lack of evidence, conclusions of fact that the state or defendant may draw from the evidence of the lack of evidence, and the law applicable to the case. Matters of common knowledge can serve as a basis for arguing a factual conclusion. State v. Smith, 257 La. 1109, 245 So.2d 327 (1971).

The trial court correctly instructed the 'jury that “. .. ‘snatching’ does not require a face to face confrontation and is distinguished from use of force and intimidation by the statute’s very wording.” State v. Anderson, 418 So.2d 551 (La.1982). So limited we believe that “snatching” has a commonly accepted meaning, not significantly different from that given to the jury from Webster’s Dictionary by both the State and defendant which included “. .. to grasp or seize hastily, to grasp, a quick grasp, or grab ... ”; and “. .. to grasp abruptly or hastily, to seize or grasp suddenly without permission, ceremony or right ... ”. Consequently, the argument did not constitute a misstatement of the law or the facts.

Accordingly, for reasons given, we find no prejudicial error and affirm the lower court’s ruling.

ASSIGNMENTS OF ERROR NUMBERS 1, 2 AND 4:

Assignments of error numbers 1, 2 and 4 not having been briefed nor argued are considered abandoned. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).

Therefore, having found no merit in the sole assignment of error briefed, we affirm the actions of the lower court.

AFFIRMED.

      . The State’s reading from Webster.

      . The defendant’s reading from Webster.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Alton STOVALL.
    No. 83 KA 0181.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Ossie Brown, Dist. Atty., Baton Rouge; for plaintiff-appellee.
    David Price, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Alton Stovall, was charged by grand jury indictment with two counts of aggravated rape in violation of LSA-R.S. 14:42. Upon trial by jury, he was found guilty on count 1 and guilty of attempted aggravated rape on count 2. On count 1 the defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On count 2 the defendant was sentenced to thirty years imprisonment. From his conviction and sentence, Stovall has appealed, relying on two assignments of error.

The basic thrust of Stovall’s appeal is that certain errors were committed in the court below which prejudiced the defendant’s right to a fair trial.

A very careful reading of the entire record convinces this Court that there was sufficient evidence upon which the jury could base its findings that the defendant was guilty on count 1 of aggravated rape and on count 2 of attempted aggravated rape, beyond a reasonable doubt. The record shows no prejudice or unfairness in the trial in the court below. We conclude that he got a fair trial.

FACTS

On February 8, 1982, two young girls, Helen Brown (age 14) and Stormy Kettle (age 12) skipped school and later that afternoon made plans to run away. After they were warned that the juvenile officers were approaching, the girls ran into a wooded area off Ardenwood Street in Baton Rouge and proceeded down a canal near the woods. They then jumped over a fence, on which one of the girls tore her clothing and scratched her leg. After this happened, they went to a building to ask permission to use the restroom facilities. When the girls left the restroom, they moved on to sit in the sun. They then saw a hose to the right side of the building and went back to get permission to clean themselves off with it. After cleaning themselves, the girls went back to the driveway to sit in the sun and dry their clothes. A few minutes later, the girls returned to the building to go to the restroom again. While they were in the restroom, Stovall entered the room and told the girls to take their clothes off, which they refused to do. He left the room, and the girls started to leave, but Stovall immediately returned with a carpenter’s knife. Defendant threatened them with the knife and forced the girls to undress. He then raped Brown and attempted to rape Kettle. He told them not to tell anyone about the incident and left the premises. The girls ran to a friend’s house where they reported the attack. The police were called, and the girls, accompanied by a detective, searched the area to try to find their assailant. Defendant was finally located at his father’s home and was arrested.

ASSIGNMENT OF ERROR NUMBER 1

This assignment of error urges that the trial judge erred in failing to sustain defense counsel’s challenge for cause to a prospective juror, Ruth B. Sickel.

During voir dire, Ms. Sickel stated that she had a friend in another state who had been raped several years ago. Her testimony on this point is, as follows:

Q. Okay. On this bottom row of these six; do any of you have any friends or relatives who have been the victim of a sexual offense? Yes, Ma’am?
A. (Sickel) I had a friend several years ago that was raped.
Q. And that was several years ago?
A. (Sickel) Yes, sir.
Q. All right. Again, the same type of, uh, situation arises here. In this instance you may have some out — outside factors which might tend to influence you in court. But the judge will tell you that you’re to put all that aside and decide on what you hear in court. Can you do that in this case?
A. (Sickel) I think that would be difficult, I really do.
Q. You think that would be difficult?
A. (Sickel) Yes.
Q. Because of your knowledge about this past incident?
A. (Sickel) Yes.
Q. Okay. You understand the two are completely unrelated?
A. (Sickel) I understand.
Q. But it would be difficult to put out of your mind?
A. (Sickel) I (unintelligible) think so.
Q. Are you saying you might hold that against Mr. Stovall?
A. (Sickel) Uh, I don’t know if I could come to a good disposition, I might transfer—
Q. You might not have an open mind?
A. (Sickel) That’s right
Q. Okay. We appreciate your honesty, we’re just trying to find out everybody’s feelings on this—
A. (Sickel) Um-hum.

Based on Ms. Sickel’s statements, she was challenged for cause by the defense counsel. The prosecutor and the trial judge then attempted to rehabilitate her.

BY MR. ROY (prosecutor):
Q. Uh, Ms. Sickel, of course, we’ve all had experiences and we can’t block them out and start clean. Uh, could you, if accepted as a juror in this case, base your decision on — on the evidence that you hear here in this courtroom and on the law as given you by the court?
A. (Sickel) I think I could but I still in the back of my mind would be—
Q. Well, I understand that, you can’t obliterate that, uh, but do you feel that you could — I—I’m sure if you didn’t think the state proved their case you wouldn’t use what’s back of your mind to find this fellow guilty, I don’t think you’d do that, would you?
A. (Sickel) No, I would not.
Q. Would you require the state to prove it to your satisfaction?
A. (Sickel) Yes, sir, I would.
MR. ROY: I don’t have any further questions.
THE COURT: Well, what’s — what’s the problem, Ms. Sickel, I understand— how long ago was this incident?
A. (Sickel) About three years ago, in Oklahoma City.
THE COURT: You were living here then?
A. (Sickel) No, sir, I was living in Oklahoma City.
THE COURT: Question is can you be impartial and open-minded about this matter which you’ve already told me you know nothing about?
A. (Sickel) I think I could, but I wanted to be honest with you.
THE COURT: Well, yes, I understand that. Mr. Price, you have anything further?
MR. PRICE: No, sir, that’s all.
THE COURT: All right. I’m going to deny the challenge for cause, I feel Ms. Sickel can be a fair and impartial, open-minded juror despite the incident that she called to our attention.

This juror, as indicated, after being further examined by the state and the court, assured the court that she could serve as an impartial juror, and apply the applicable law and give the defendant a fair trial.

Our Supreme Court has repeatedly dismissed a defense argument that his challenge for cause to a prospective juror should have been sustained, by observing that the juror, when questioned further by the state or the court demonstrated a willingness and ability to impartially decide the case according to the law and the evidence presented in court.

As stated by the Supreme Court in State v. McIntyre, 381 So.2d 408, 410 (La.1980):

This court has repeatedly held that the trial court is vested with broad discretion in ruling on challenges for cause and that the trial court’s ruling will be reversed only when it appears, upon review of the voir dire as a whole, that the court’s exercise of its discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. State v. Dickinson, 370 So.2d 557 (La.1979); State v. Webb, 364 So.2d 984 (La.1978); State v. Drew, 360 So.2d 500 (La.1978). Furthermore, a charge of bias may be removed by the rehabilitation of a prospective juror. See State v. Webb, supra; C.Cr.P. 797.

From our review of the record, we conclude that the trial judge did not abuse his discretion in denying the defense’s challenge for cause against this prospective jur- or. The circumstances indicate that she could be fair and impartial. The facts brought out by the defense are not strong enough to cause us to hold that the trial court abused its broad discretion in the case at bar.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER # 3

In this assignment of error, defendant contends that the trial court erred when it refused to grant the defense’s request for an admonition to the jury to disregard a remark of the prosecuting attorney made during the closing argument in rebuttal.

This assignment arose when the prosecutor stated in his rebuttal argument to the jury, as follows:

REBUTTAL ARGUMENT
By Mr. Roy:
May it please the court, Ladies and Gentlemen, a few words in rebuttal, I’ll try to have some continuity on my response here. I guess the basic — basically handle the rebuttal argument without being repetitious is to tell you what I would categorize opposing counsel’s argument as, quote, nitpicking. Uh, he got up here and he, uh, attempted to show you, uh, some slight variations, uh, with variations, uh, with reference to rather inconspicious things like what the girls saw when they got there and how many times they came out and, uh, and what he attempted .to show was not consistent with what the employer testified to. The, uh, this crime, as you know, didn’t happen in the garage, this crime didn’t happen outside of this garage. This crime happened in that bathroom and incidently, you know, he, uh, he told you with a — a degree of some confidence that it was physically impossible for those three people to have done what Ms. Brown says was accomplished in that, quote — his words, I think, were six-by-five, bathroom that was consumed with a commode and a — and a basin. And he let you know unequivocally and with great apparent honesty and sincerity that there was no physical way that this could have been accomplished. And, you know, I was just sitting there thinking, I’m real gullible, I have to admit that, I — I’m supportive of people who come to our office and register a complaint, uh, because I’ve found that ninety-nine point ninety-nine percent are valid. Uh, and I was just sitting there saying to myself, you know, Ralph Roy made another mistake. I was telling you about that frailty of human endeavor. That little bathroom that he has told you is not capable of holding those three people under the circumstances and conditions that Ms. Brown testified to exists today as it did then. He could have beck-ened (sic) you over there to look at it and he could have showed me the impossibility of Ms. Brown’s testimony and what does he do? He gets up here and he tells you how impossible physically it was — I think he’s doing a great disservice to his client in not taking you — you members of the jury out there and—
MR. PRICE: Judge, I’m going to have to interpose an objection—
BY MR. ROY:
—and show you—
THE COURT: Wait a minute, Mr. Roy.
MR. PRICE: —Mr. Roy apparently is — is suggesting to the jury that I have to prove something in this case on behalf of the defense, that’s not true and I wish an admonishment—
MR. ROY: I — I’m saying — yeah, he should prove what he’s saying or he ought to keep his mouth shut.
THE COURT: I overrule the objection.

This argument was made in response to defense counsel’s argument that the restroom was so small that it would have been physically impossible for the events to have transpired as related by the prosecuting witness.

The scope of closing argument in Louisiana is governed by LSA-C.Cr.P. art. 774, which provides:

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

It appears from the record that the state’s rebuttal was confined to answering the argument of the defendant; hence, we conclude that the prosecutor’s statements fall within the permissible scope of LSA-C.Cr.P. art. 774, State v. Prestridge, 399 So.2d 564 (La.1981).

But even if these statements were not permissible, it is not necessarily reversible error for the prosecutor to have made them. Before an appellate court is permitted to reverse a conviction on the basis of improper argument, it must be convinced that the jury was influenced by the remarks to the extent that the statements contributed to the verdict. State v. Michel, 422 So.2d 1115 (La.1982); State v. Morris, 404 So.2d 1186 (La.1981); State v. Heads, 370 So.2d 564 (La.1979).

In the case at bar the comments of the prosecutor were neither detailed nor extensive. They were made during a clearly permissible rebuttal argument concerning the possibility or impossibility of the alleged crimes having been committed in the place where the state averred they had occurred. There is no suggestion in the comments of the prosecutor that the defendant had the burden of proving his innocence, or that the state did not have to prove all elements of each alleged crime “beyond a reasonable doubt.” Under the circumstances of this case, we do not find that the jury was influenced by the statements of the prosecutor in rebuttal or that the comments contributed to the verdict.

Moreover, if the prosecutor’s argument may have been objectionable, no prejudice to the defendant has been demonstrated. LSA-C.Cr.P. art. 921; State v. Lee, 340 So.2d 180 (La.1976). This is particularly true since the smallness of the area in which the crimes were allegedly committed was amply demonstrated to the jury. The jury had sufficient evidence for it to determine whether it was possible or impossible for the sexual assaults to have occurred as related by the prosecuting witness, and whether or not the alleged crimes did in fact take place as charged.

There is no merit in this assignment of error.

DECREE

For the reasons assigned, the conviction and sentence of Alton Stovall, defendant, are affirmed at his costs.

AFFIRMED.

      . The sentences are to run consecutively, and are also to run consecutively with a previous sentence for armed robbery.

      . Defendant also assigned as a third error the lower court’s sustaining of the state’s objections to character testimony. This assignment was not briefed; we consider it abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4. In any event, this assignment is without merit.


author: SHORTESS, Judge. CRAIN, Judge,

text:
    STATE of Louisiana v. Eli JACKSON. (Two cases).
    Nos. 83 KA 0165, 83 KA 0279.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Writ Granted in Part Jan. 6, 1984.

      Ossie Brown, Dist. Atty., by Joseph Lot-wick, Asst. Dist. Atty., in No. 83 KA 0165 and by Brenda Creswell, Asst. Dist. Atty. in No. 83 KA 0279, Baton Rouge, for plaintiff-appellee.
    Georgia Wilemon, Asst. Public Defender, Baton Rouge, for defendant-appellant in No. 83 KA 0165.
    Michele Fournet, Public Defender, Baton Rouge, for defendant-appellant in No. 83 KA 0165.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Eli Jackson (defendant) was charged by grand jury indictment with simple burglary of a pharmacy, in violation of La.R.S. 14:62.1. He pled not guilty, was tried by a jury, and found guilty as charged. He was then charged as a habitual offender, received a hearing, and was so adjudged by the trial court. He was sentenced to ten years at hard labor with the Department of Corrections and cast for all court costs. Defendant has appealed his conviction and sentence, citing thirteen assignments of error, ten of which are briefed.

On January 23,1981, George Thomas and John Cockern, Baton Rouge city policemen, were dispatched to Pete’s Pharmacy in Baker, Louisiana, pursuant to a burglar alarm from Sonotrol Alarm System. The owner, Thomas P. Chambliss, met the officers at the pharmacy and after opening the doors, they found and arrested defendant. The defendant had entered the store through an overhead exterior vent. A hammer, crowbar, hat, gloves, and flashlight not belonging to Chambliss were found in the building. Thomas found a sack full of watches which had been removed from one of the counters. The officers also discovered that some drugs had been removed from the shelves and placed on the counter.

ASSIGNMENTS OF ERROR NUMBERS 1 THROUGH 8

These assignments involve the alleged trial court error in denying defendant’s challenges for cause of eight prospective jurors. Defendant challenged these jurors because he felt that they could not accept the law regarding the use of intoxication as a defense. La.C.Cr.P. art. 797(4). The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Ellwest Stereo Theatres, Inc., 412 So.2d 594 (La.1982). In evaluating the fairness of a trial court ruling on voir dire, the entire examination must be considered. State v. Stucke, 419 So.2d 939 (La.1982); State v. Kohler, 434 So.2d 1110 (La.App. 1st Cir.1983), (1983).

The defendant exhausted all of his peremptory challenges before the completion of the panel and is therefore entitled to complain about the trial court’s refusal to maintain his challenges for cause. La.C.Cr.P. art. 800; State v. Ellwest, 412 So.2d at 595; State v. Sugar, 408 So.2d 1329 (La.1982). In order to prove reversible error, the defendant must show: (1) that the trial court erred in refusing a challenge for cause made by him; and (2) that he exhausted all his peremptory challenges.

It is not error for the trial court not to dismiss a juror who expresses some reservation about accepting the law, when, after additional questioning by the trial court and the State, the juror assures the trial court that he could apply the applicable law and give defendant a fair trial. State v. Ellwest, 412 So.2d at 595.

After a particular review of those parts of the voir dire relating to the questioning of the individuals who were challenged for cause, we find that all stated that they felt they could accept the applicable law and apply it. After questioning by the trial court and the State, they were adequately rehabilitated. We find no abuse of discretion in the trial court’s refusal to dismiss them for cause.

Therefore, we find that these assignments lack merit.

ASSIGNMENT OF ERROR NUMBER 10

Defendant argues that the trial court erred in admitting defendant’s prior conviction record at his habitual offender hearing because it constituted inadmissible hearsay. The State counters and asserts the provisions of La.R.S. 15:529.1(F). This statute created a statutory exception to the hearsay rule by making certain certified copies of prior conviction records prima fa-cie evidence of the imprisonment and discharge of the individual. Our examination of the record indicates that a certified copy of defendant’s record was introduced by the State. The trial court correctly admitted said record into evidence, as it complied with the provisions of law. See also State v. Lozier, 375 So.2d 1333 (La.1979).

At the habitual offender hearing, the State also called Christine Langlois, a fingerprint technician supervisor for the Louisiana State Police Criminal Records Unit. As such, she was custodian of defendant’s fingerprints, and she testified that defendant’s fingerprints on record and the fingerprints in connection with his current conviction were the same. For further verification, she took defendant’s fingerprints at the hearing itself and confirmed that all prints matched. This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 9, 11 AND 12

These assignments were not briefed on appeal. Under Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, we consider these assignments as abandoned. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NUMBER 13

Defendant argues that his sentence is excessive. Defendant’s total exposure was eighteen years. The trial court gave him ten years at hard labor.

The trial court noted defendant’s extensive criminal record and stated that confinement was appropriate, because there was an undue risk that defendant would commit another crime if he were not incarcerated. Defendant’s record established that in 1966 he pled guilty to felony theft and was sentenced to three years in the Parish prison. That sentence was suspended, and defendant was placed on probation for five years. While on probation, he was convicted of four misdemeanor charges and two felony charges. His probation was revoked on July 31, 1969. He pled guilty to simple burglary on July 10, 1969, and was sentenced to nine years in Louisiana State Penitentiary. He was released from there and returned to the Parish prison, where he was incarcerated until 1974 when he was released and placed on parole. In 1976 he was found guilty of misdemeanor theft and simple assault.

We agree with the trial court’s finding that defendant needs correctional treatment and a custodial environment which can most effectively be provided by committing him to the jurisdiction of the Department of Corrections.

Even though defendant’s sentence is not excessive, it is technically illegal. A sentence for simple burglary of a pharmacy must be served “without benefit of parole, probation or suspension”. La. R.S. 14:62.1(B). These conditions of sentence are still applicable if the defendant is sentenced as a habitual offender. La.R.S. 15:529.1; State v. Bruins, 407 So.2d 685 (La.1981). The trial court omitted this required language. Since the law requires such conditions, it is doubtful that the trial court’s failure to use this language has any legal effect. However, an analysis of the statutory law and jurisprudence is necessary to determine what action, if any, we should take.

La.C.Cr.P. art. 882 provides as follows:

An illegal sentence may be corrected at any time by the court that imposed the sentence.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2). In an unappealable case by writs of certiorari and prohibition. Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.

This language indicates that the trial court on its own motion can correct an illegal sentence at anytime. This language also indicates that either the state or the defendant may question the legality of a sentence by appeal or in an unappealable case by a writ. This language clearly does not limit the correction of sentencing errors only to those adverse to the defendant. In an appellate court, an illegal sentence is considered patent error. La.C.Cr.P. art. 920(2); State v. Wiggins, 432 So.2d 234 (La.1983); State v. Dorsey, 406 So.2d 1353 (La.1981); State v. Upton, 382 So.2d 1388 (La.1980); State v. Bluain, 315 So.2d 749 (La.1975). In each of the above cited cases, the appellate court recognized sentencing error adverse to the defendant (even though the defendant did not assert such error), vacated the sentence and remanded to the trial court for imposition of a legal sentence. The language of La.C.Cr.P. art. 920 does not restrict the recognition of patent error only to that which is adverse to the defendant. In State v. Goodley, 398 So.2d 1068, 1069 (La.1981), the Supreme Court stated:

Article 920 of the Code of Criminal Procedure dictates the scope of our review in criminal appeals and provides in pertinent part as follows:
“The following matters and no others shall be considered on appeal ... (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (emphasis provided)
Under this provision, the Court will consider any errors that are “discoverable by a mere inspection of the pleadings and proceedings,” or patent errors. (Underscoring added).

By construing Articles 882 and 920 in pari materia (La.C.C. art. 17; State v. Brady, 310 So.2d 593 [La.1975]), it would appear that sentencing errors adverse to either the state or the defendant could be recognized by an appellate court on its own motion. However, in State v. Speed, 335 So.2d 28, 30 (La.1976), the court said:

In brief, the state points out that the defendant was sentenced to life imprisonment, whereas the mandatory statutory penalty is death for the crime of aggravated rape. La.R.S. 14:42. However, this contention raised by the state’s brief is not before us upon this appeal by the defendant to have the conviction and sentence reviewed for prejudicial error affecting him. La.C.Cr.P. art. 911. The remedy for correction of the sentence, if illegal, is specifically provided by La.C. Cr.P. art. 882(11.
We note that, at the time of sentencing. the state did not object to imposition of the life sentence, nor has it ever made complaint in the trial court of the alleged illegality of the life sentence imposed. The state should present any contention of illegality to the trial court, with the trial court’s determination being reviewable by supervisory writs to this court. La.C.Cr.P. art. 882(21. (Underscoring added).

See also State v. Jimmerson, 432 So.2d 1093 (La.App. 3rd Cir.1983). In Speed, the court only considered Article 882 and did not consider Article 920.

In State v. Telsee, 425 So.2d 1251 (La.1983), the court corrected a sentencing error adverse to the state even though the state did not raise an objection in the manner prescribed in Speed. In Telsee, 425 So.2d at 1252, 1259 and 1261 appears the following:

This is a criminal appeal in which the defendant, Johnny Telsee, Jr., challenges his sentence of forty years at hard labor under the forcible rape statute as excessive punishment in violation of Article 1, Section 20 of the 1974 Louisiana Constitution .... This court has reheard the case, has found the sentence to be disproportionally excessive in one respect and unlawfully lenient in another, and now amends the sentence to twenty-five years imprisonment at hard labor, two years of which shall be without benefit of probation, parole, or suspension of sentence.
Although the trial court’s sentence was disproportionately excessive in length, it was unlawfully lenient in another respect. The trial court did not specify that any part of the sentence was to be without benefit of parole, probation or suspension of sentence. By law at least two years of any forcible rape sentence must be without parole, probation or suspension of sentence. La.R.S. 14:42.1. Accordingly, the sentence must be amended to withdraw these benefits for two years of Telsee’s sentence.
On the other hand, the trial court was unlawfully lenient in its failure to provide that at least two years of Telsee’s sentence shall be without parole, probation or suspension of sentence.
For the reasons assigned, the sentence imposed by the trial court is amended by providing that two years of the sentence shall be served without benefit of parole, probation or suspension of sentence, and by reducing the term of the sentence to twenty-five years at hard labor. In all other respects, the sentence imposed by the trial judge is affirmed.

The court in Telsee did not refer to either Article 882 or 920 and corrected a sentencing error adverse to the state even though Article 882 provides that such an error “may be corrected at any time by the court that imposed the sentence.” (Emphasis added). See footnote 6 in State v. Lewis, 430 So.2d 1286, 1293 (La.App. 1st Cir.1983).

The writ action taken by the Louisiana Supreme Court on this court’s decision in State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983) casts doubt on what action we should take on a sentencing error adverse to the state. In Napoli, the defendant was charged with aggravated crime against nature in violation of La.R.S. 14:89.1. He was found guilty of attempted aggravated crime against nature and sentenced to serve 4 years at hard labor with 1 and ½ years of the sentence to be served without benefit of probation, parole or suspension. Napoli appealed and alleged as error (among others) that his sentence was illegal because he was convicted of an attempt and denial of probation, parole and suspension was not authorized on an attempt conviction. This court did not agree with this argument. Cf. State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983). However, this court noted that La.R.S. 14:89.1 required that all of the sentence imposed must be without benefit of suspension, probation or parole and the sentence imposed by the trial court was in error. The sentence was vacated and remanded to the trial court for correction.

On March 16, 1983, pursuant to this court’s order, the trial court corrected Na-poli’s illegal sentence. Napoli thereafter took a writ to the Louisiana Supreme Court which on September 2, 1983, in 437 So.2d 868 (La.1983), took the following per curiam action:

GRANTED IN PART. When the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal. State v. Goodley, 398 So.2d 1068 (La.1981). The judgment of the court of appeal is set aside as to the sentence for attempted aggravated crime against nature, and the original sentence of the trial court is reinstated. Otherwise the writ is denied.

The court cited Goodley as authority for the proposition that “reviewing a sentencing error unfavorable to defendant” has a “chilling effect on defendant’s exercise of his right to appeal” and is thus improper. We have carefully reviewed Goodley and do not perceive it as such authority. In Goodley, the defendant was charged with first degree murder and was convicted of manslaughter by a jury vote of 10 to 2. The precise holding of the court is found in Goodley, 398 So.2d at 1071 as follows:

In view of our holding that defendant’s conviction was not valid because not returned by a unanimous jury and that his conviction and sentence must be set aside, we pretermit consideration of defendant’s argument that his sentence was excessive.

The court recognized that the illegal jury verdict was patent error and did not review the sentence. The issue of patent error adverse to the state was not considered.

The implications of the Napoli writ action are significant. Is a sentencing error adverse to the state patent error as is a sentencing error adverse to the defendant? Is an appellate court barred from noticing a patent sentencing error adverse to the state even when the defendant questions the le-. gality of the sentence? Is a trial court barred from correcting its own sentencing error which is adverse to the state unless the state follows the procedure required in Speed? Did Telsee overrule Speed? Did the writ action in Napoli overrule Telsee?

Since Telsee was a fully considered opinion of the court and Napoli only a writ action based on doubtful authority, we elect to follow Telsee. The sentence is amended to provide that it shall be served without benefit of parole, probation or suspension. In all other respects, the conviction and sentence are affirmed.

CONVICTION AFFIRMED, SENTENCE AMENDED AND AFFIRMED.

CRAIN, J., concurs with reasons.

CRAIN, Judge,

concurring.

I concur with the views expressed in this opinion as to the problems in which we are now mired when a trial judge fails to sentence according to statutory requirements. To put the matter in its proper, perspective we are talking here only about a situation where the trial judge fails to mouth the magic waords “without benefit of parole, probation or suspension of sentence”, when the sentence is required to be imposed without those benefits. It is an error which is inadvertent in that the trial judge merely forgets to say the magic words or in many instances, it is simply not taken down correctly by the minute clerk or court reporter. It is not a situation where the trial judge has any discretion whatsoever either to impose the sentence with benefit of parole, probation or suspension, or to do so with a discretionary number of years. A trial judge could not make a sentence with benefit of parole, probation or suspension of sentence when the statute says it is without such benefits, even if he tried. Regardless of what the trial judge says, the sentence is as required by the statute.

It is my view that a correction in these instances is unnecessary and a waste of judicial time. For instance, what if a trial judge says the sentence is without benefit of parole or probation, but he fails to state it is without suspension of sentence. If he has not suspended the sentence, obviously it is without suspension of sentence. Who else can suspend it? Why should the trial judge have to say it? Only the trial judge can put the defendant on probation. If he does not do it, why should he have to say he hasn’t?

The only possible difference it could make is with a subsequent application for parole. At that point all the parole board has to do is look at the statute under which the defendant was sentenced, determine that the sentence had to be without benefit of parole, and deny the parole.

It is much ado about nothing. It is a prime example of judicial nitpicking when we have enough matters of significance with which to concern ourselves. It ought to be put to rest simply by asserting that the error has no legal significance and can just be left alone.


author: COLE, Judge.

text:
    STATE of Louisiana v. Gregory O. THOMAS.
    No. 83 KA 0188.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnny Wellons, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Defendant, Gregory O’Neal Thomas, was charged by grand jury indictment with aggravated rape, armed robbery, and aggravated burglary in violation of La.R.S. 14:42, 64, and 60. Defendant was tried by a twelve-man jury and found guilty on all counts. He received the maximum sentence possible on each count: for aggravated rape, life imprisonment at hard labor without benefit of probation, parole or suspension of sentence; for armed robbery, ninety-nine years at hard labor; for aggravated burglary, thirty years at hard labor. The sentences are to run concurrently. Defendant now appeals his convictions and sentences, alleging four assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred by denying defendant’s motion to suppress confession.

2. The trial court erred in denying defendant’s motion for a new trial and motion in arrest of judgment because the state failed to prove its case in that the victim failed to identify defendant as the offender.

3. The trial court erred in denying defendant’s motion for a new trial and motion in arrest of judgment because the state failed to prove the elements of aggravated rape, armed robbery and aggravated burglary.

4. The trial court erred in failing to require the state to prove beyond a reasonable doubt all of the essential elements of the crimes charged.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred when he denied defendant’s motion to suppress defendant’s confession because such confession was obtained as a result of intimidation and threats made by the arresting officers.

In order for a confession to be admissible into evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. See State v. Jackson, 381 So.2d 485 (La.1980). The state has the burden of affirmatively proving that the confession was free and voluntary; accordingly, it must rebut specific testimony introduced by the defendant concerning factual circumstances which indicate coercive measures or intimidation. State v. Serrato, 424 So.2d 214 (La.1982). The admissibility of a confession is a question for the trial judge and his conclusions on credibility and the weight of testimony regarding the voluntariness of a confession for admissibility purposes will not be overturned on appeal unless they are unsupported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981). The trial court is accorded much discretion in arriving at a conclusion of the voluntariness of defendant’s confession, and such discretion of the trial court will not be overturned on appeal unless it is unsupported by the evidence. State v. Haynie, supra.

The admissibility of defendant’s confession was amply litigated at the hearing on the motion to suppress. Defendant’s allegation that the arresting officers intimidated and coerced him into making a confession by using threats is reflected in his testimony on trial of the motion. He testified the arresting officer told him: “If I wouldn’t talk, I wouldn’t live to see Christmas, just scared me like that....” “Well, they talking about like ... if I wouldn’t talk, you know, when I get back to the Parish, you know, they have a gang waiting on me like that, you know, and.... ”

Both arresting officers testified defendant was given his Miranda rights before the taped statement was made. A week after defendant’s arrest, and while he was in the parish prison, the arresting officer, Detective Groht, was told defendant wanted to make a statement and help the police recover the stolen items. On arrival at the parish jail, defendant began to give information concerning the stolen items. The officer requested that he not talk further until they arrived at the downtown police station. Upon arrival, the detective again gave defendant his rights. After some discussion, defendant gave a statement which was taped in its entirety, and indicated to the officers he understood his rights and the procedure that was being followed. This testimony was supported by the other interrogating officer, Julius O’Brien. Both officers denied they had threatened defendant in any way or told him what to say. On rebuttal, both officers again testified no physical force or threats were used against defendant. Both officers made an effort to contact an attornéy whose name was given to them by defendant, but no contact was made until after the taped statement was given. When contact was finally made, the attorney specifically said he was not going to represent defendant.

An analysis of the record convinces us sufficient evidence was presented by the state to rebut defendant’s allegations of intimidation and of threats made to him to induce his making a confession. Therefore, this assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, AND 4

Defendant’s assignments of error numbers 2, 3 and 4 are grounded on the lack of sufficient evidence at trial to support a verdict of guilty. Defendant assigns error to the denial by the trial court of defendant’s motion for post-verdict judgment of acquittal (sic) and complains the evidence was insufficient to identify defendant as the party who attacked and raped the victim; that the record contains insufficient evidence to prove the elements of the crimes of aggravated rape, aggravated burglary, and armed robbery; and that the state has failed to bear the burden of proving beyond a reasonable doubt the elements of the crimes charged.

A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved 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). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438; State v. Graham, 422 So.2d 123 (La.1982). Under the rationale in Jackson v. Virginia, supra, upon review for insufficiency of evidence to convict, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Bennie G. Smith, 430 So.2d 31 (La.1983); State v. Brady, 414 So.2d 364 (La.1982).

Defendant argues the state failed to prove the identity of the offender, failed to prove specific intent, and failed to prove each element of the crimes charged.

The crime of aggravated rape, and the elements thereof, are set forth in La.R.S. 14:42, which reads in pertinent part as follows:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; ...”

In determining if the state has met its burden of proving aggravated rape beyond a reasonable doubt, we must look at each element of the crime. First, it must be proven the defendant committed an act of sexual intercourse with the victim without the lawful consent of the victim. The victim testified on direct and cross examination the offender raped her and then tied her arms and legs to her bed with belts from her dresses. Dr. Pine, the doctor who examined the victim at the hospital just after she was found tied to the bed and released, testified the victim had physical signs of having been raped, including bruises around the vagina and signs of having been beaten in the chest area. A test for seminal fluid showed the presence of such in the victim’s vagina. The bed sheets taken by the police lab from the victim’s bed also tested positive for seminal stains. Dr. Pine, qualified as an expert who had worked with rape victims for almost five years, concluded the victim had been raped.

Second, it was proven the victim was prevented from resisting the act of rape by threats of great and immediate bodily harm, accompanied by apparent power of execution. It should be noted the victim was 78 years old at the time of trial. She testified her assailant grabbed her by the shoulders and forced her to do his bidding when he entered the house. He threatened to kill her if she did not do what he said. He found a gun on her closet shelf, and held it, unloaded, by the butt and threatened to kill her. She tried to talk, but he slapped her in the face; she was too afraid to scream. She tried to fight off her attacker, but he raped her and subsequently tied her feet and hands to the bed posts. She believed he meant it when he said he would kill her. From other evidence presented at trial and the testimony of the victim, it is apparent a jury could infer the victim was prevented from resisting by threats of great and immediate harm and that the attacker was capable of and willing to carry out those threats. Therefore, the record contains sufficient evidence for a reasonable man to find beyond a reasonable doubt that aggravated rape had been committed.

The crime of aggravated burglary is defined by La.R.S. 14:60, which reads in part as follows:

“Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.”

We find that the elements of aggravated burglary have been proven by the state beyond a reasonable doubt, that is, that the offender made an unauthorized entry of an inhabited dwelling with intent to commit a felony or any theft therein and that the offender committed a battery upon a person while in such place. The victim testified the offender forced open the door of her home while she was attempting to close it, pushed her aside, grabbed her by each shoulder, and covered her mouth with a gloved hand so that she could not yell. While in her dwelling, he committed rape upon her, slapped her in the face, and bruised her chest. The assailant loaded up pillow cases with her china, silver and glassware, stole her jewelry out of her jewelry box, along with silver coins, a money market certificate, her credit cards and checkbook, and also took two rings which he removed from her fingers. He stated to her “I want $20,000 . ... ” and forced her to write four checks. It is thus apparent a burglary occurred under aggravated circumstances as enumerated in La.R.S. 14:60.

The definition of the crime of armed robbery is found at La.R.S. 14:64, which reads in pertinent part as follows:

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

La.R.S. 14:2(3) defines “dangerous weapon” as follows:

“ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

To convict a defendant of armed robbery, the elements which must be proven by the state are that the defendant stole something of value from the person of another, taking it by force or intimidation, and that the offender was armed with a dangerous weapon. Under the holding in State v. Levi, 259 La. 591, 250 So.2d 751 (1971), one may be convicted of robbery with a dangerous weapon even though the gun was not loaded. This is especially true in this case, where the victim was threatened with the butt of the gun. The victim testified the offender forced her to take off all her jewelry, which he took and placed in the pillow cases with the other articles which were stolen from her. When the intruder found the victim’s gun, he threatened her with the butt of it, telling her she must do what he said, otherwise he would kill her. He carried her stereo system out of the house; later, that stereo system was found through an acquaintance of defendant. The rings taken off the victim’s fingers were later pawned at a pawn shop by someone with the defendant’s driver’s license. Although the victim knew the gun was not loaded, she feared he would strike her with it. Therefore, we find the record contains sufficient evidence to sustain a verdict of guilty of armed robbery.

The only remaining question is whether or not the defendant was in fact the individual who committed these offenses as charged. Under the Jackson v. Virginia, supra, approach, the state is required to negate any reasonable possibility of mis-identification in order to carry its burden of proof. The defendant argues since the victim was not able to identify him as her assailant, after having watched him for about two and one-half hours as he robbed her home, the state did not meet its burden of proof. The victim described her attacker as having “not a heavy beard but he had a beard.”

The following exchange is recorded on cross examination of the victim:

“Q. ... Do you see that light complexioned person in the courtroom today? Do you see that light complexioned gentleman that raped you in the courtroom today?
A. He seemed a little lighter than this fellow here.
Q. Okay, but don’t — do you see that gentleman in the courtroom here today that raped you since you say he went in your kitchen, you watched him and stuff—
A. No.
Q. He’s not in the courtroom?
A. Uh-uh.”

On direct examination, the victim testified her assailant said once or twice he “knew Neal and Rabbit.” Circumstantial evidence included two thumb prints matching defendant’s thumb prints which were found, one on a broken pane of glass from the victim’s house, the other on the window of victim’s abandoned automobile, which had been stolen at the time of the incident in question. However, sixteen sets of prints were taken from the car; the other fifteen were not identified. The victim testified that some weeks prior to the incident the defendant had done yard work for her and she had driven him home.

The fact that the victim could not identify defendant as her assailant, either in the courtroom or prior to trial, when she had watched him for about three hours in her home, is consistent with defendant’s innocence. Also, the fingerprint evidence must be viewed together with the testimony of the victim that the defendant had previously done yard work for her and she had driven him in her car.

The state based its case for identity of defendant on circumstantial evidence. Following the standard to be used for review of circumstantial evidence as set forth in La.R.S. 15:438 and State v. Graham, supra, we must conclude such evidence excludes every reasonable hypothesis of defendant’s innocence.

The hypothesis of defendant’s innocence conflicts with several facts which the evidence tends to establish. Most incriminating is the confession wherein he admits the robbery. Although he never admits he committed rape, the inference that he was the rapist is overwhelming. No evidence was introduced at trial, nor did defendant allege, a second person was in the position to commit rape on the victim at the time the robbery and burglary were taking place. Defendant showed the police where he had taken the stolen items and several of these items were recovered. The testimony of Mrs. Claudia Johnson substantiated defendant’s confession as did testimony by the owner of a pawn shop where defendant had pawned the rings taken from the victim’s fingers. Mrs. Johnson testified the defendant was driving a dark blue car like the one stolen from Mrs. Sharp when he dropped off the stolen stereo system and glassware at her house, where some of the goods were later discovered. Likewise, the testimony of Mr. Glenn Mayeaux supported defendant’s confession in that he corroborated defendant’s statement that two “white boys” had picked him up and given him a ride to the vicinity of the crime only minutes before the crime occurred.

Other probative facts are defendant’s finger prints found on the broken pane of glass from the victim’s home and on the window of the victim’s abandoned car. In addition, the tests for blood type which were conducted by the rape crime lab and serology clinic did not exclude defendant from the possibility of having been the victim’s assailant. In fact, this evidence tends to prove that the victim’s assailant could have been defendant since the assailant had type “0” blood, as did defendant. The circumstantial evidence seems to exclude any reasonable hypothesis of innocence.

Consequently, we conclude, assuming every fact to be proved that the evidence tends to prove, it does exclude every reasonable hypothesis of innocence, and is sufficient to support defendant’s conviction. We can reach no other conclusion in light of all the facts before us.

There is no merit to these assignments of error.

PATENT ERROR

The defendant received a sentence on the armed robbery conviction of ninety-nine years at hard labor. This sentence is statutorily incorrect as the penalty clause of La.R.S. 14:64, entitled “Armed robbery,” reads as follows:

“(B) Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.” (Emphasis added.)

Since the sentence was not imposed without benefit of parole, probation or suspension, it is an illegal sentence. See La.Code Crim.P. arts. 882(1), 920; State v. Brown, 434 So.2d 1166 (La.App. 1st Cir.1983); State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983). However, a serious question exists as to whether or not this court may, ex proprio motu, review a patent error when the review mandates a result unfavorable to the defendant. (Obviously, the defendant is not going to raise the issue.) More precisely, may we correct a patently erroneous and illegal sentence which is adverse to the interests of the state when the state has not raised the issue? If we are to do so, a further question arises as to the subsequent procedure. Are we to vacate the sentence and remand for imposition of a legally correct sentence or should we, without further involvement of the trial court, amend the sentence to conform with the law?

It is clear to us articles 882 and 920 of the Code of Criminal Procedure, read in pari materia, provide us with ample authority to review the patent error before us. It is also clear the proper procedure is to remand the case to the trial court for resentencing. La.Code Crim.P. art. 882. Regardless, we are faced with conflicting signals from our Supreme Court. On the one hand, we are told we cannot review a sentencing error favorable to defendant, as it is said to have a “chilling effect” on the exercise of his right to appeal. See, State v. Napoli, 437 So.2d 868, Supreme Court of Louisiana, No. 83-K-0667, On Application for Writs of Review, rendered September 2, 1983. On the other hand, as recent as January 10, 1983, our Supreme Court has itself corrected a sentencing error adverse to the state (favorable to the defendant) although the state did not raise the objection in the manner prescribed previously in another Supreme Court decision. See, State v. Telsee, 425 So.2d 1251 (La.1983). See also, State v. Speed, 335 So.2d 28 (La.1976).

The result obtained in Napoli and Telsee, respectively, represents conflicting applications of the law which can be resolved only by the Supreme Court. Another panel of this court has been simultaneously considering this same problem and has elected to follow Telsee. See, State v. Jackson, 349 So.2d 622 (La.App. 1st Cir.1983). We are impressed with the thoroughness of its opinion and believe the result is dictated by the jurisprudential and codal authorities relied upon therein. For these reasons assigned by our colleagues in Jackson, we too elect to follow Telsee.

Accordingly, we amend the sentence for armed robbery to provide it shall be served without benefit of parole, probation or suspension. In all other respects, the convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED, WITH AMENDMENT.

      . Defendant has styled his motion for post-conviction relief as “Motion for Post Verdict Judgment of Acquittal.” The grounds are that the evidence is insufficient to sustain a verdict of aggravated rape and armed robbery. We assume it was his intention to file a motion in arrest of judgment, pursuant to La.Code Crim.P. art. 859, and have treated his motion as such.

      . Defendant' is known as Neal; his middle name is O’Neal; Rabbit is the nickname of defendant’s stepfather.