author: SCHOTT, Judge.

text:
    STATE of Louisiana v. John MORAN.
    No. KA 1479.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Writ Denied Sept. 14, 1984.

      Dwight Doskey, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Before SCHOTT, BYRNES and WARD, JJ.
   SCHOTT, Judge.

Defendant was convicted of second degree murder in violation of LSA-R.S. 14:30.1 and sentenced to the mandatory life term at hard labor.

The victim, Janelle Cuccia, was stabbed in her bedroom at about midnight on December 8, 1982. She staggered out of the house and collapsed on the front steps of her neighbor who occupied the other side of this double house. The neighbor had heard a commotion on Cuccia’s side and called the police who arrived soon after her call. Either simultaneously with the arrival of the police or shortly thereafter Dr. John Knox, a physician, arrived on the scene, and along with police emergency medical personnel he rendered emergency treatment to Cuccia who was bleeding profusely from her neck. She was taken to Charity Hospital where she died a short time later.

Knox had been dating Cuccia for several months and had gone out with her on the evening of December 7. He testified that they were in her bed when her phone rang. She answered, told the caller to leave them alone, and told Knox the caller was the defendant. Knox also testified as follows: He had begun dating Cuccia several months before the murder, and, on the evening of October 6, 1982, when he and Cuccia were in her bed there was a telephone call. Cuccia unplugged the telephone saying it was a former boy friend who was harassing her. Several minutes later the defendant burst into the house and into the bedroom brandishing a pistol. When Cuccia ordered him out he struck her, threatened Knox, and left, breaking glass on the way out. Shortly after he left Knox heard a gun shot.

Because of the October incident and continuing harassment afterward, Knox got nervous and left when the telephone call came on December 7. When he drove off he was followed by an automobile he thought was defendant’s. After driving around a few minutes the following car disappeared and Knox drove past Cuccia’s house, which appeared to be as he left it. He went to a service station for gas and then to his own 'home, but after a few minutes he became concerned for Cuccia and returned to her house after arming himself with a knife and a shot gun. This time he saw a car he thought to be defendant’s parked across from her house and thought “something had changed” about the house. He pulled behind the parked car, took the license number, and drove toward a nearby coffee shop where he had just seen a police car. However, this car was now gone, so he went back to Cuccia’s house and found the police on the scene.

When the police learned from Knox of defendant’s involvement they went to defendant’s house which was a short distance away, arriving there at about 2:15 AM. Defendant was a police officer himself and was acquainted with the lead detective and some of the others involved in the investigation. When they informed him that Cuc-cia had been attacked he seemed upset, and they asked him if he could account for his whereabouts at the time of the crime. He stated that he had been drinking at the Parkway Tavern after getting off work as a horse mounted patrolman and then went to the police stable to check his horse. Subsequent investigation disclosed that defendant had been in the tavern with several fellow officers until about 11:30 PM when he left. He was wearing a white T-shirt, gray sweat pants, and a blue windbreaker. However, when police personnel saw defendant at the stables at about 12:15 AM, he was wearing a black baseball jersey and white shorts. The detectives also interviewed Knox who was at the police crime lab and learned that he had seen defendant’s car on the scene, taking down the license number which proved to be defendant’s. After getting this information the detectives returned to defendant’s house at about 6:45 AM. In the meantime the detectives had asked a close friend of defendant’s, Officer McCord, to stay with him.

When the detectives told defendant Cuc-cia had died, he broke down and cried. They proceeded to interview him, asking what he was wearing when he was at the tavern. Defendant told them a white T-shirt, gray sweat pants, and blue windbreaker and stated that these clothes were in a pile of clothing in the kitchen. At the top of the pile was a blue windbreaker which appeared to be stained with fresh blood. With defendant’s permission and assistance the house was searched for the shirt and pants, but they were not found. Defendant told the detectives that he had returned to his home after leaving the tavern and changed clothes intending to go jogging.

Police technicians established that the fresh blood stains on the jacket were type 0, which matched Cuccia’s and was shared by one percent of the population. There were also some stains on the inside of the jacket which were type A, defendant’s type, shared by forty percent of the population.

It was established that the distances between the various points involved, i.e., defendant’s home, the tavern, the victim’s home, and the police stables, are all short and capable of being covered in an automobile in a few minutes.

Two days later, defendant’s sister, who had his automobile, was asked to bring it to the police. She did so and asked the police if they would assist her in removing defendant’s personal property from the vehicle. When the console was opened, a buck-type knife was discovered whereupon the police held up their search and obtained a search warrant before proceeding. Expert testimony established that this type of knife could have inflicted the wounds found on the victim.

Defendant testified and denied having committed the crime. He stated that he had worn a blue windbreaker to the tavern, came home and changed clothes intending to go jogging with his dog, but decided instead to go to the stables. Asked whether the jacket in evidence was his he said it looked like his but wasn’t necessarily the same one. He admitted a close relationship with Cuccia of six years duration and stated that he had discovered her in bed with Knox in October. Although this upset him he denied having the gun at the time or threatening Knox. By the time of the murder he was going with a new girl and he stated that Cuccia’s involvement with Knox was not of great concern to him.

Cuccia’s brother testified in rebuttal that after the October incident, defendant had often expressed his displeasure over Cuc-cia’s involvement with Knox.

ASSIGNMENT OF ERROR 1

By this assignment defendant contends that the trial court erred in denying his motion to suppress the knife recovered from his car because the knife’s original discovery was improper so that reference to it in the affidavit for the search warrant was also improper. Defendant contends that the original discovery of the knife was improper because defendant’s sister had no standing or authority to permit a search of his automobile. However, the fácts do not support this position. The officers were not searching the vehicle when they discovered the knife. They were assiting the sister, at her request, in the removal of personal property. When the knife- was seen it was not seized and no further action was taken until a warrant was issued. Thus, there appears to be-no justification for excluding this information from the affidavit.

The affidavit contained these factual assertions: 1) The car was seen in front of the victim’s home just before she was fatally stabbed; 2) the car’s owner was arrested for the murder; 3) a buck-type knife was observed in the car’s console.

The affidavit was sufficient to support the issuance of the warrant because it supplied enough reliable information to enable the magistrate to make a practical, common sense decision that evidence would be found in the car and that probable cause to search for that evidence existed. The totality of circumstances indicated a fair probability that evidence would be found in the car. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Lingle, 436 So.2d 456 (La.1983). Thus, the motion to suppress was properly denied, and this assignment lacks merit.

ASSIGNMENT OF ERROR 2

By this assignment defendant asserts that his motion to suppress the jacket recovered from his home was erroneously denied.

At the outset we -note that defendant waived this objection by categorically stating in a memorandum in support of his motion to suppress the knife recovered from his car that he “... acknowledges that the search at his residence was with his consent and is, therefore, not at issue.” Nonetheless, a reading of the testimony of the detectives and Officer McCord at the hearing and at trial compels the conclusion that defendant consented to the search. There is no evidence that consent was obtained by fraud or duress. The trial court’s conclusion that defendant freely and voluntarily consented to the search is to be given great weight by a reviewing court. State v. Edwards, 434 So.2d 395 (La.1983). This assignment is without merit.

ASSIGNMENT OF ERROR 3

By this assignment defendant contends that the trial court erred in denying his motion to suppress statements he made to the investigators at his apartment on the ground that he was not given his constitutional warnings. These statements include telling the officers 1) he had worn a blue windbreaker that evening, 2) where to find the jacket, 3) the jacket was his, 4) the blood on the jacket was his own from a previous accident, and 5) he was not near Cuccia’s house that evening.

In State v. Menne, 380 So.2d 14 (La.1908) the court held that constitutional warnings must be given whenever the circumstances reasonably indicate that the defendant has been deprived of his freedom in any significant way. Whether the detention is significant is determined objectively from the totality of circumstances and factors relevant to the determination include 1) whether the police officer had reasonable cause under C.Cr.P. Art. 213(3) to arrest the interrogee without a warrant; 2) whether defendant is the focus of the investigation; 3) whether the officer subjectively intends to arrest defendant; and 4) whether the interrogee believes objectively that he was being detained. State v. Thompson, 399 So.2d 1161 (La.1981).

A reading of the testimony taken at the hearing on the motion to suppress defendant’s statements and at trial decisively precludes the conclusion that defendant was in any sense detained or deprived of his freedom when he made the statements in question.

When the detectives first spoke to him they had only a verbal statement from Knox incriminating defendant. Knox himself was the prime suspect at this time, and the officers were interested in clearing their brother policeman. They left McCord with him, not to restrict or detain him, but to comfort him. The officers uniformly testified that defendant appeared genuinely upset over the attack on his former girl friend.

When the officers returned and confronted defendant with the change of clothes situation he may have become the focus of the investigation, but there is nothing in the detectives’ testimony to suggest that they had reasonable cause to arrest defendant until the jacket was produced by him. Moreover, until this point, it seems that they were sincerely trying to help defendant with his alibi. The only statement he made after the jacket was found was that the blood on it was his own from a previous accident. To exclude this spontaneous remark because the police failed to give him Miranda warnings in this fluid, developing situation would constitute a nit-picking, after-the-fact, unrealistic appraisal of the circumstances.

Furthermore, even if taken in violation of his rights, the admission of defendant’s final statements to the officers was harmless error because they were accompanied by admissible statements of an equal or greater inculpatory nature, namely, those made before the jacket was found to contain fresh blood stains. State v. Mitchell, 437 So.2d 264 (1983).

Mitchell also reiterated the rule that the admissibility of inculpatory statements is a fact question for the trial judge, whose rulings on the credibility of witnesses are not to be overturned by an appellate court uiiless unsupported by the evidence. In the present case the trial judge, after seeing and hearing this defendant’s brother officers and friends testify, believed they were trying to help him and had not begun questioning him as a suspect in the murder. We conclude that the state met its burden to show affirmatively that defendant’s statements were given freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises.

This assignment is meritless.

ASSIGNMENT OF ERROR 5

By this assignment defendant contends he was entitled to a mistrial because he was not advised in advance of trial that laboratory tests on some of the blood stains on the jacket revealed that they were type A, his own type. Assuming that this information should have been revealed by the state and that the evidence should have been excluded, this was harmless error at worst because the evidence proved nothing not already proved beyond a reasonable doubt, i.e., that the jacket was defendant’s. Defendant pointed the jacket out to his brother officers and told them the blood was his from a previous accident. Defendant depends on speculation to support his claim that the lab report is the only evidence tying him to the jacket. He would have this court believe that it is reasonable to hypothesize that Knox or someone else planted this jacket in his clothes pile after getting the victim’s blood on it while defendant was at the tavern and that Knox, or whoever, would have the ingenuity to know that defendant was wearing such a windbreaker at the tavern on the night of the murder and would be changing it, and could plant one with the same brand name and size as defendant’s. We do not find this to be a reasonable hypothesis.

The importance, if not the sole significance, of the lab report was that it contained fresh blood stains of Cuccia’s comparatively rare type. The evidence that it also contained defendant’s type of blood added nothing to what the jury already knew. The record establishes that the state’s failure to disclose did not create prejudice causing the jury to reach the wrong conclusion. State v. Ray, 423 So.2d 1116 (La.1982).

This assignment lacks merit.

ASSIGNMENT OF ERROR 6

By this assignment defendant argues that it was reversible error for the court to allow Knox to testify that Cuccia told him it was defendant calling her on the telephone on the night of the murder. This assignment lacks merit because defendant failed to object to the testimony as required by C.Cr.P. Art. 841.

ASSIGNMENT OF ERROR 7

By this assignment defendant contends that the evidence was insufficient to support a conviction because it failed to exclude every reasonable hypothesis of defendant’s innocence as required by R.S. 15:438. He argues that it is reasonable to hypothesize that Knox committed the murder and planted the coat in defendant’s clothes pile.

It is our task as a reviewing court to determine whether viewing the evidence in the light most favorable to the state, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of defendant’s innocence has been excluded. State v. Austin, 399 So.2d 158 (La.1981). The most that can be said for the theory that Knox was the murderer is that it was a remote possibility. While his movements from the time he left Cuccia until the police arrived on the scene of the crime were somewhat bizarre, while his immediate reaction upon discovering the crime is in dispute, while his medical treatment of Cuccia was questioned by one of the police medical technicians and while his attitude when questioned by the police was described as belligerent, there is absolutely nothing to suggest a motive on his part for the murder. And to make his commission of the crime a reasonable hypothesis would require accepting as reasonable Knox’s planting the jacket as discussed above concerning assignment 5. The hypothesis that Knox committed the murder is especially weak when contrasted with the strength of the evidence against defendant who was proved to have a motive, presence of his car on the scene, clothing with the victim’s fresh blood on it, and the means to commit the crime. This assignment has no merit.

We have reviewed this record for errors patent and find none.

The conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Josef E. SCHWENDINGER v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Ample Electric Service Inc., Vincent Bruno Construction Co., Jimmy Leteff, Vincent Bruno, John Doe, Richard Roe, ABC Insurance and XYZ Insurance Company.
    No. CA-1235.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Nick F. Noriea, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-appellant-appellee Josef E. Schwendinger.
    Ronald L. Ronzello, Metairie, for defendants-appellants Ample Elec. Services, Inc. and The Continental Ins. Co.
    Louis G. Gruntz, Jr., Jefferson, for der fendants-appellants Ample Elec. Services, Inc. and Frank James Leteff.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   KLEES, Judge.

Plaintiff, Josef E. Schwendinger filed suit against defendants, Ample Electric Services, Inc., and The Continental Insurance Company (incorrectly designated “Fidelity and Casualty Company” in the petition), Ample’s workers’ compensation insurer, seeking workers’ compensation benefits, and against defendants, Frank James (Jimmy) Leteff, Vincent Bruno Construction Company, Vincent Bruno, Mary Bruno, wife of/and Anthony Caruso and Ample Electric Services, Inc., on an intentional-tort theory of recovery, for injuries and damages sustained when Josef Schwen-dinger fell from a ladder.

Both claims were tried to the district court, and judgment was rendered on October 27, 1982, on the workers’ compensation claim, in favor of plaintiff and against defendants, Ample Electric Services, Inc. and The Continental Insurance Company in the amount of $15,000, but denying penalties and attorney fees. Plaintiff was denied relief for the intentional tort claim.

Defendants, Ample Electric Services, Inc., and the Continental Insurance Company, have appealed, complaining of the trial court’s adverse decision in the workers’ compensation claim.

Plaintiff appeals from the trial court’s award of a lump sum in the workers’ compensation proceeding; the awarding of an inadequate sum; the failure to award penalties and attorney fees (for failure to pay any compensation benefits); and the dismissal of plaintiff’s tort claim against Ample Electric Services, Inc., and Frank James Leteff.

The issues presented on appeal are: 1) the trial court erred in finding that plaintiff established the occurrence of an accident, 2) the trial court erred in not finding that defendants, Frank Leteff and Ample, intentionally caused plaintiff's injury, 3) the trial judge’s lump sum award was improper, 4) the trial judge erred in not assessing attorneys fees and penalties against defendants, and 5) the amount of the workers’ compensation award was insufficient.

The first issue we address is whether or not the trial court erred in finding that the plaintiff fell off the ladder. At trial, there was conflicting testimony introduced concerning Schwendinger’s alleged fall. The plaintiff testified that while installing an eight foot fluorescent light fixture at the Canal Super Market, a clip holding one end of the fixture failed when his helper Keith Broussard jerked back on the fixture causing it to fall and strike him on the nose. Plaintiff then lost his balance and fell off of the six foot ladder. He noted that in addition to himself and his helper, Broussard, two other Ample employees were present at the time of his fall, Wayne Hosli and John Globel.

Only Hosli testified at trial. His account of the story differed from plaintiff’s as to some logistical facts (actual location in the building where the alleged fall occurred, exact time of day, etc.). Nonetheless, his testimony corroborated plaintiff’s concerning the light fixture hitting plaintiff’s nose and plaintiff ultimately falling off of the ladder.

Keith Broussard (a nephew of defendant, James Leteff) was not present at trial but his testimony was offered into the record through deposition. Broussard’s recollection places only himself and the plaintiff at the scene of the alleged accident and not Hosli and Globel. He acknowledged that the light fixture fell and struck the plaintiff on the nose but suggested that the plaintiff did not fall off of the ladder as a result of the light fixture falling nor any other time.

No testimony by John Globel was offered into the record and he was not present during trial.

Testimony was offered by Defendant James Leteff and his wife, Caroline Leteff, who was also Ample’s bookkeeper, that payroll time cards reflected that neither Hosli nor Globel were present at the Canal Supermarket on the day of the alleged accident.

“[1] In a workmen’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i.e., ‘the testimony, as a whole, must show that more probably than [not] .the employment accident caused the disability.’ Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).”
West v. Bayou Vista Manor, Inc., 371 So.2d 1146 at 1147 (La.1979)

In the case before the court, the trial judge was better situated to evaluate the contradictions in testimony and the veracity and demeanor of the witnesses. Our review of the record does not show that his conclusion of fact that plaintiff fell off the ladder was manifestly erroneous.

Did the trial court err in not finding defendants, Ample Electric Services, Inc., and Frank Leteff liable as a result of an intentional act which caused plaintiffs injuries? Louisiana Revised Statutes 23:1032 in pertinent part reads:

“§ 1032. Exclusiveness of rights and ■ remedies; employer’s liability to prosecution under other laws.
The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or. employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal resulting from an intentional act.” (Emphasis added)

The Louisiana Supreme Court in Bazley v. Tortorich, 397 So.2d 475 (La.1981), sought to define what an intentional act is with regard to the exclusive remedy rule in The Louisiana Workers’ Compensation Act:

“... The meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Restatement (Second) of Torts, supra, § 8; Lafave and Scott, Criminal Law, § 28 (1972); see also, Prosser, supra § 8.”

and,

“Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. See Freeman v. Bell, 366 So.2d 197 (La.App. 2nd Cir.1978) writ denied, 369 So.2d 151 (1979); Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir.1975). See also Langlois v. Eschet, 378 So.2d 189, 190 (La.App. 4th Cir.1979) (word ‘intended’ synonymous with having in mind as an end or aim, implying mind is directed to some definite end), von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App. 1st Cir.), writ denied 362 So.2d 794, 802 (1978) (if person has such a lack of reason, memory, and intelligence that prevents him from comprehending the nature and consequences of his acts, he cannot intentionally inflict injury).”
“Other cases have addressed the question of whether a tort was intentional and have found that a high degree of probability is not sufficient to find that the tortfeasor actually intended the consequences of his act. E.g. McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3rd Cir.1980).” Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.1982) writ denied, 415 So.2d 953 (La.1982).

Plaintiff asserts that the equipment provided to him by the defendants was faulty and unsafe. He further suggests that the defendants were notified prior to the accident that the ladder in question was too short to safely do the job at the Canal Boulevard Supermarket.

In order for the plaintiff to escape the exclusive remedy rule of the Louisiana Workers’ Compensation Act, it is necessary to establish that defendants, Ample or Le-teff, consciously desired that the plaintiff would fall and injure himself from the use of the six foot 'ladder or that the defendants thought it was substantially certain that the plaintiff would fall if he continued to use the ladder. The record discloses contradictory testimony on the issue of Frank Leteffs knowledge of the plaintiffs assessment that the six foot ladder was unsafe to use at the Canal Boulevard Supermarket. The plaintiff and Hosli testified that the defendant was notified prior to the accident that the ladder was unsafe. The defendant testified that he had never been told that the ladder was too short for the job.

The trial judge in his written reasons for judgment concluded that:

“... the accident was caused not by the ladder, but by the fact that one of plaintiffs helpers permitted a fixture to slip.”

The trier of fact is in a far better posture to view the demeanor of the witness in assessing credibility and veracity. We find no error in the factual and legal conclusion made by the trial court in determining that defendants were not possessed of the necessary intent to commit an intentional act with regard to plaintiffs injury.

In rendering judgment for the plaintiff for his workers’ compensation claims, the trial judge awarded the plaintiff a lump sum in the amount of $15,000. We must reverse that part of the judgment.

It is well settled that there is no statutory authority for awarding plaintiff’s compensation in a lump sum. See Lott v. Brennan’s House of Printing, Inc., 359 So.2d 746 (La.App. 4th Cir.1978), Sewell v. W. Horace Williams Co., 12 So.2d 33 (La. App. 1st Cir.1943), and Bourgeois v. South Central Bell Tel. Co., 407 So.2d 1245 (La. App. 4th Cir.1981).

The record is incomplete with regard to evidence required for the calculation of the appropriate award in this matter. Thus, we must remand this case to the trial court to calculate the amount of benefits due plaintiff, and to take such additional evidence as may be necessary.

Concerning the issue of whether or not the trial judge committed manifest error in not assessing defendants for attorney’s fees and penalties, it must be determined whether proper notice of the job related injury was given to the employer and whether the employer was subsequently “arbitrary, capricious or without probable cause” in denying benefits.

The question of whether proper notice was given and what amounts to “arbitrary, capricious or without probable cause” under the circumstances of this case is a factual determination that must be made in light of the testimony given at trial and the record as a whole.

The requisites of proper notice are set out in Louisiana Revised Statutes 23:1292 through 23:1295.

The trial record includes testimony by defendant Frank Leteff that he had received a letter from plaintiff’s attorney approximately three months after the date of the alleged accident that asserted a workers’ compensation claim on behalf of plaintiff; thus it appears that the requisite notice was given.

Nonetheless, the trial court stated in its Reasons for Judgment,

“There was conflicting evidence as to the reporting of the accident, and other facts surrounding the incident. The Court resolved the question of the occurrence of the accident in favor of plaintiff; but the question of penalties must be resolved in favor of the defendant employer.”

As we previously noted, a reviewing court must give great weight to the conclusions of the trier of fact, and should not disturb its findings absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

“[7] The penalty provided by the statute is very harsh and should not be imposed in doubtful cases. Where there is a bona fide dispute as to the occurrence of the accident or the causal connection between the accident and the disability, an employer’s refusal to pay benefits is in good faith and with just cause. Hall v. Joiner, 324 So.2d 884 (La.App. 3rd Cir.1975); Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3rd Cir.1975).” Crooks v. Belden Corporation, 334 So.2d 725, 727 (La.App. 3rd Cir.1976).

We can find no manifest error in the actions of the trial court in not assessing attorney fees and penalties against defendants.

For the reasons stated above, we affirm the judgment of the trial court in all respects except that portion of the judgment which grants a lump sum compensation award. We remand this matter to the trial court to determine the type of disability and determine the weekly benefits due.

AFFIRMED IN PART.

REVERSED IN PART..

REMANDED.


text:
    STATE of Louisiana v. Clarence SLAUGHTER.
    No. KA-1246.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Wilfret R. McKee, New Orleans, for defendant-appellánt Clarence Slaughter.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   KLEES, Judge.

On December 29, 1982, the defendant, Clarence Slaughter, was charged by bill of information with knowingly possessing a vehicle from which the manufacturer’s vehicle identification number had been removed in violation of R.S. 14:207, and with receiving a stolen vehicle valued at $1000.00 in violation of R.S. 14:69. He was arraigned on January 13, 1983, and pled not guilty on both counts. On April 18, 1983, a six member jury found him guilty as charged on both counts. He was sentenced on April 21, 1983 to serve three years in Parish Prison for his 14:69 conviction and to serve one year in Parish Prison for his 14:207 conviction, both sentences to run concurrent. From these convictions he appeals.

FACTS

On February 11, 1982, Trooper Philip A. Stanford and his partner went to the Slaughter Auto Parts Store located at 3423 Carondelet Street with a warrant for the arrest of the defendant, Clarence Slaughter. The store was closed when the troopers arrived, but as they started to leave they noticed a man who looked like Slaughter drive by the store in a white Mercedes. The troopers stopped Slaughter and ordered him out of the car. Upon confirming he was Clarence Slaughter, the troopers placed him under arrest and advised him of his Miranda rights.

The troopers searched Slaughter for weapons and found a key ring with many keys, one of which was the key to the shop. The troopers then produced a search warrant for the shop and entered. They found three vehicles inside the shop, one of which was an orange 1973 Volkswagon with a green lid on the trunk. Upon looking through the windshield they noticed that the vehicle identification number (VIN) plate located on the dashboard had been altered. The plate looked crooked and was secured by an American rivet, not a foreign rivet. When they checked the VIN plate on the driver’s side doorpost (also known as the Federal Certification Sticker), they noticed that the number on the dashboard did not match the one on the doorpost. However, by looking at the “confidential” number on the Volkswagon located somewhere under the rear seat, the troopers determined that the number on the doorpost was the correct number.

A number of cars were parked on the lot outside the shop, including a stripped salvage vehicle, or “shell”. The troopers discovered that the number on the Federal Certification Sticker on the doorpost of the “shell” matched the one on the VIN plate located on the dashboard of the Volks-wagon. Upon receiving no response from Slaughter as to whether the Volkswagon was his, the troopers ran a check on the real VIN of the Volkswagon and learned it was a stolen vehicle. A check of the VIN of the “shell” failed to produce the identity of its owner.

Trooper Stanford testified that Slaughter told him that he did all the work at the shop. Stanford, who was qualified as an expert in the detection and investigation of vehicle identification numbers, testified that VIN plates are generally switched on stolen vehicles so that a vehicle can then be registered and sold without anyone knowing it was stolen. While at the shop, Stanford noticed hanging on the shop’s wall little metal plates that are normally placed by the vehicle’s manufacturer in the hood compartment. Stanford testified that in his opinion the fact that these plates had been taken out of vehicles showed that Slaughter knew where vehicle identification plates were located.

Ulysses S. Washington testified that his 1973 orange Volkswagon was stolen on February 4, 1982. On February 12, he was notified by the State Police that his car had been recovered. Upon picking up the car, he noticed that the trunk lid had been replaced with a green trunk lid. The VIN on his bill of sale for the car did not match the VIN plate on the dashboard of the car, but it did match the number on the doorpost. The defense stipulated that the 1973 Volks-wagon recovered from the auto parts shop was the ear stolen from Washington. Washington also testified that the value of the Volkswagon at the time of the theft was $1000.00. He did not give Slaughter permission to take the car.

Clarence Slaughter, the defendant, testified that he was only one of three men who worked at the shop, although he was the only one named Slaughter. He testified that he had not worked on the Volkswagon and he did not know who had done so. All three of the employees had keys to the shop.

Slaughter denied telling Trooper Stanford that he did all the work at the shop. He maintained that he had never removed or switched VIN plates. He admitted that he had a prior conviction for possession of cocaine for which he was still on probation.

1. Sufficiency of Evidence

Although not alleged as an assignment of error, the sufficiency of evidence to support appellant’s conviction must be reviewed as per State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

An additional standard is applied in cases where the conviction is based upon circumstantial evidence. This standard, as set forth in R.S. 15:438, provides that such evidence must exclude every reasonable hypothesis of innocence. The Court, in State v. Shapiro, 431 So.2d 372 (La.1983), has held that this statutorily-mandated standard must be applied independently and in addition to the Jackson standard used to review the sufficiency of evidence in purely direct evidence cases. 431 So.2d 372 at 385; State v. Graham, 422 So.2d 123, 129 (La.1982).

Appellant was convicted of receiving stolen things in violation of R.S. 14:69. In State v. Walker, 350 So.2d 176, 177 (La. 1977), the court enumerated the four essential elements that must be proven to sustain a conviction of this crime: (1) that the item was stolen; (2) that the item was of value; (3) that the defendant knew or should have known the property was stolen; and (4) that defendant intentionally procured, received, or concealed the property. The Court has also held that the mere possession of stolen property does not create a presumption that the possessor knew or had good reason to believe it was stolen. State v. Ennis, 414 So.2d 661 (La.1982); State v. Walker, 374 So.2d 1223 (La.1979); State v. Walker, 350 So.2d 176 (La.1977).

In the case at bar, it was shown that a stolen 1973 Volkswagon worth $1000.00 was found inside the appellant’s auto parts shop. Although the appellant testified he was not the only worker at the shop, Trooper Stanford testified that the appellant told him he did all the work in the shop. Trooper Stanford also testified that he could see through the windshield that the VIN plate on the dashboard had been altered. The troopers further found that this plate had come from another vehicle on the premises where the shop was located. Using both the Jackson and the circumstantial evidence standards, the jury could have excluded every reasonable hypothesis of innocence to find the appellant guilty of receiving stolen things of a value of $500.00 or more.

The appellant was also convicted of knowingly possessing a vehicle from which the VIN plate had been removed for the purpose of misrepresenting its identity, in violation of R.S. 14:207. The original VIN plate on the dashboard of the Volkswagon had been removed and replaced with a different VIN plate that had come from a “shell” of a vehicle parked in the lot outside the shop. The officer testified that the appellant admitted that he did all the work at the shop. Again using the Jackson and the circumstantial evidence standards, the jury could have excluded every reasonable hypothesis of innocence to convict the appellant of a violation of R.S. 14:207.

2. Assignments of Error

By his first assignment of error, the appellant contends that the trial court erred by allowing the arresting officer to testify as to an oral incuplatory statement allegedly made by the appellant at the time of his arrest. Over defense objection, Trooper Stanford testified that Slaughter told them he did all the work at the shop. When asked where missing VIN plates were, Slaughter replied he did not know. When asked the whereabouts of a certain section of the flooring of a car containing a confidential VIN plate that had been removed from the car by a cutting torch, Slaughter told Stanford that Stanford “probably knew” where it was.

Prior to this testimony, Trooper Stanford testified that when he arrested Slaughter, he fully advised the appellant of his Miranda rights. Slaughter then made these statements. Stanford testified that the troopers did not force, beat or intimidate Slaughter, nor did they make any promises to elicit this statement. The trial judge then ruled that the statement was admissible.

The Louisiana Supreme Court has held that the trial court’s determination of a confession’s admissibility will not be disturbed “unless not supported by the evidence.” State v. Harper, 430 So.2d 627, 633 (La.1983); State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Dewey, 408 So.2d 1255 (La.1982). When reviewing the trial court’s determination of admissibility, the reviewing court may look to the totality of evidence presented at the suppression hearing and at the trial itself.

The State has the burden of proving that the statement was freely and voluntarily given. In order for a statement made in custodial interrogation by an accused person to be admissible, the State must prove that the accused had been advised of his Miranda rights and that he waived his right to counsel prior to the interrogation.

In the case at bar, Trooper Stanford’s testimony does establish that the appellant’s statements were freely and voluntarily given. We conclude that the trial court did not abuse its discretion by so ruling.

In his brief, the appellant mentions C.Cr.P. art. 768 which mandates that unless the defendant has been granted pretrial discovery, the state must advise the defense in writing prior to the state’s opening statement of its intent to introduce a confession or inculpatory statement. The record before this court contains the required notice. Thus, this assignment of error has no merit.

By his second assignment of error, the appellant requests a review of the record for errors patent. Our review reveals that there are no errors patent.

Accordingly, the conviction and sentences are hereby affirmed.

AFFIRMED.

      . R.S. 14:207 provides:
      No person shall cover, remove, deface, alter, or destroy the manufacturer’s number or any other distinguishing number of identification mark on any motor vehicle or motor vehicle part for the purpose of concealing or misrepresenting its identity; nor shall any person buy, sell, receive, dispose of, conceal, or knowingly have in his possession any motor vehicle or motor vehicle part from or on which the manufacturer’s number or any other distinguishing number or identification number has been covered, removed, defaced, altered, or destroyed for the purpose of concealing or misrepresenting its identity.
      Whoever violates this Section shall be fined not more than one thousand dollars, or imprisoned for not more than twelve months, or both, and, in default of fine, imprisoned for not more than twelve months additional.
      This Section shall apply to all vehicles propelled otherwise than by muscular power, except motor vehicles running upon rails or tracks.

      . R.S. 14:69, as existing at the time of the commission of the crime, provided in part:
      Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
      Whoever commits the crime of receiving stolen things, when the value of the things is five' hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

      . Compare State v. Chism, 436 So.2d 464 (La. 1983), and State v. Sutton, 436 So.2d 471 (La. 1983).


text:
    Frank CARTER v. BELLE CHASSE STATE SCHOOL, Louisiana Department of Health and Human Resources, State of Louisiana, and Rockwood Insurance Company.
    No. CA-1562.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied June 26, 1984.

      Occhipinti & Mura, John A. Occhipinti, William E. Mura, Jr., New Orleans, for plaintiff-appellee Frank Carter.
    O’Keefe, O’Keefe & Berrigan, Dennis J. Phayer, New Orleans, for defendants-appellants Belle Chasse State School, The Department of Health and Human Resources, the State of Louisiana, and Rockwood'-'In-surance Company.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

FACTS

In this Workmen’s Compensation action, Defendant-appellants, Belle Chasse State School, Louisiana Department of Health and Human Resources, State of Louisiana, and Rockwood Insurance Company appeal from a judgment decreeing plaintiff-appel-lee, Frank Carter, totally and permanently disabled, and entitled to total and permanent disability benefits under the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021, et seq.

Carter’s original petition for benefits filed on January 23, 1980 was excepted to by appellants who asserted that Carter’s claim for Workmen’s Compensation benefits had prescribed, since he failed to file his petition within one year from the date of the accident, August, 1978. Carter filed a Supplemental and Amending Petition alleging that the wages paid by appellants to him from January, 1979, through March 20, 1979, constituted “wages paid in lieu of compensation” which tolled the running of prescription to March 20, 1980.

The trial court dismissed the exception of prescription. The appellants have suspen-sively appealed from the lower court judgment.

The issue presented on appeal is did the trial court err in holding that wages paid Carter by appellants following Carter’s discharge from the hospital and return to work constituted “wages in lieu of compensation” sufficient to interrupt the running of prescription on any claims Carter may have had for weekly compensation benefits arising out of the accident of August, 1978. We find no error and affirm.

The litigation currently before this Court arises out of an accident which occurred sometime in August, 1978, at The Belle Chasse School. Plaintiff-appellee, Frank Carter, a mechanic at the school was injured when an overhead garage door came loose from one or more of its rollers striking Carter on the head. Following this accident, he was treated at Jo Ellen Smith Hospital for approximately two months, August 11, 1978 through October 4, 1978, during which time substantial medical expenses were incurred.

Subsequent to his discharge from Jo Ellen Smith Hospital, plaintiff, in January, 1979, returned to work at the Belle Chasse State School. He stayed but for a short period of time and his last date of employment was March 20, 1979.

An examination of Arnold v. Solvay Process Company, 20 So.2d 407 (La.1944), and Matthews v. New Orleans Pub lic Service, Inc., 349 So.2d 408, (La.App. 4th Cir.1977), indicate that our settled jurisprudence is that payment of wages in lieu of compensation will interrupt prescription just as will compensation payments. Harrell v. Travelers Insurance Co., 255 So.2d 410 (La.App. 1st Cir.1971).

The test to determine if wages were paid in lieu of compensation is whether the wages are actually earned by the employee. O’Quain v. Rockwood Insurance Co., 335 So.2d 85 (La.App. 3rd Cir.1976); Landry v. Ferguson, 264 So.2d 746 (La.App. 3rd Cir. 1972), Ledoux v. William T. Burton Co., 171 So.2d 795 (La.App. 3rd Cir.1965).

If the injured employee actually earns the wages, they are not in lieu of compensation and do not interrupt prescription even if the employee worked in pain. Bell v. Gulf Insurance Company, 313 So.2d 277, (La.App. 3rd Cir.1975). In making that determination the similarity or degree of difficulty of services performed by the employee before and after the accident are relevant, but not conclusive of the issue. Heyman v. Dixie Leasing Corporation, 250 So.2d 118, (La.App. 4th Cir.1971).

A review of the trial record reveals extensive testimony regarding the origin of Carter’s injuries and the employer's knowledge of the accident. Carter explained that his injury resulted from a blow to his head from a shed or garage door. He was later hospitalized for approximately six months. He testified that his supervisor Obie Bag-gett sent him home because he could not perform the required duties. Carter further testified that co-workers Roussel Berry and Clarence Mosley witnessed the accident, and that he reported the accident to his supervisor, Obie Baggett.

Baggett denied having ever had conversations with anyone that would have informed him that a garage door had fallen on Carter’s head. He denies knowledge of any accident report, and did not know why Carter resigned.

On cross-examination Baggett testified that Carter was not required to perform his full duties since returning to work after the operation.

Juliana Cossard, a clerk-typist in the Maintenance Department, called by the defense, denied any knowledge of the origin of Carter’s injury, or that an accident report had been filed on this matter. ,

Roussel Berry and Clarence Mosely were co-workers of Carter and each testified that they witnessed the accident. When questioned about Baggett’s knowledge of the accident, Berry testified that the supervisor, Baggett, had the malfunctioning door replaced, and that Baggett asked him what had happened. Berry also noted Carter’s inability to perform his duties when he returned to work.

It is well accepted that a trial judge is in the best position to determine credibility of witnesses, and that when two equally opposing witnesses testify contrarily to one another on a matter of fact, he may properly believe one and disbelieve the other, and that this finding of fact will not be disturbed upon appeal. Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir.1972).

There is sufficient testimony supporting the trial judge’s decision to accept Carter’s charge that the wages that he received upon his returning to work, after having been released from the hospital, were wages paid in lieu of compensation. By appellants own admission, Carter was paid his regular salary, but was no longer expected to perform the-same duties. Under the facts of this case we cannot conclude that the trial court was manifestly erroneous in finding that the wages in question were not earned and the prescriptive period mandated in LSA-R.S. 23:1209 was interrupted until March 20, 1979.

Accordingly, for the reasons expressed above, we affirm the judgment of the trial court. All costs to be paid by appellants.

AFFIRMED.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Frank BECKENDORF, Jr.
    No. KA 1366.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied June 26, 1984.

    William Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    James A. McPhearson, New Orleans, for defendant-appellant.
    Before SCHOTT, BYRNES and WARD, JJ.

       Schott, J. was of the opinion the rehearing should not be considered.

   BYRNES, Judge.

Defendant, Frank Beckendorf, was charged by bill of information with the theft of property valued at $145.90, a violation of La.RS 14:67, and with malfeasance in office, a violation of La.RS 14:134. Beckendorf waived trial by jury and was found guilty of the malfeasance charge. He was also found guilty of the theft of property valued at $129.95. A motion for new trial based on newly discovered evidence was denied and this appeal followed. Beckendorf contends that the trial judge erred by denying his motion. We do not agree and affirm both the conviction and sentence.

FACTS

On August 24, 1982 employees of the Radio Shack store located on Frenchmen Street in New Orleans observed the defendant, Police Officer Frank Beckendorf, carrying a large cardboard box out of the store. An eye witness testified that she also saw the defendant pick up a “power strip,” walk into a store room and emerge carrying a large cardboard box. A check of the store’s inventory revealed that a power strip was missing. Employees of the store testified that none of them had given Beckendorf permission to remove any equipment. One of the employees reported the possible theft of the power strip to the police. It was during the investigation of this possible theft that the police uncovered the crimes with which the defendant is charged; the theft of a cassette deck and the filing of a false police report.

The assistant manager of the store testified that prior to power strip incident, Beckendorf had asked him to borrow some stereo equipment. Beckendorf made the same request to the manager of the store who agreed to lend him a cassette deck, turntable, cartridge and a mixer, with the stipulation that Beckendorf return them on Friday August 27th. On that day Becken-dorf told the manager he wasn’t finished with the equipment but would return it on Monday. That Monday Beckendorf returned all the equipment except the cassette deck.

The manager testified that Beckendorf wanted to keep the deck, and told the manager he would write out a false police report listing it as stolen to cover the store’s loss. He further testified that because Beckendorf already had the deck in his possession he felt he had no alternative but to follow the plan. He also stated that he did not ask Beckendorf to write the report but was afraid to report the incident to the police because Beckendorf himself was a police officer. Finally he testified that while it was against company policy to lend equipment he had only been a manager a few. months and made the loan to Becken-dorf before he knew of the policy. Nothing else was ever lent to Beckendorf by the manager. The assistant manager testified that other loans of equipment had been made to Beckendorf and other police officers in the past.

When questioned by the Office of Municipal Investigation concerning the equipment Beckendorf voluntarily took inyesti-gators to his home and gave them the power strip, the cassette deck and a telephone answering machine he had been lent earlier. Beckendorf testified that he filed a theft report on the cassette deck because the manager had told him that one was missing. Beckendorf asserts that he did not realize the missing deck was the one he possessed. He further testified that he did not intend to keep the power strip or cassette deck, but had planned to return the equipment when he finished using it.

ERRORS PATENT

We have reviewed the record for errors patent and find none.

SUFFICIENCY OF EVIDENCE

We have also reviewed the record of defendant’s conviction for sufficiency of the evidence and conclude that a rational trier of fact, viewing the facts in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt.

ASSIGNMENT OF ERROR

By his one assignment of error, Becken-dorf contends that the trial court erred by denying his motion for new trial based upon newly discovered evidence. This evidence consisted of the testimony of one Gregory Dendinger, who testified that he overheard the assistant manager agree to lend the telephone answering machine to Beckendorf and also overheard the two discuss the possibility of a loan of the cassette deck.

La.C.Cr.P. Art. 851 provides in part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
* * * * * *
The court, on motion of the defendant, shall grant a new trial whenever: (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty[.]

To justify a new trial the defendant must establish two things. He first must show that the evidence is in fact newly discovered and could not have been discovered earlier by the exercise of due diligence. He must also show that this new evidence is so material that its introduction ought to produce a different result from the verdict reached. State v. Clayton, 427 So.2d 827 (La.1983). State v. Motton, 395 So.2d 1337 (La.1981).

The trial judge is given great discretion in ruling on a motion for a new trial and his evaluation of the reliability or materiality of testimony and its potential impact on a verdict will not be disturbed in the absence of a clear showing of abuse of discretion. State v. Fuller, 414 So.2d 306 (La.1982). State v. Molinario, 400 So.2d 596 (La.1981).

In the present case, Dendinger testified that he was in Alabama at the time of trial and did not tell the defendant until after the trial that he had overheard the conversations. However, Dendinger also testified that Beckendorf knew he was in the store when those conversations took place and Beckendorf did not contend that he was unable to contact Dendinger prior to trial. Thus, it does not appear that Beckendorf carried his initial burden of showing that Dendinger’s testimony was undiscoverable prior to trial. Moreover, even if this evidence was undiscoverable prior to trial, Beckendorf has not proven that it was so material that its introduction ought to have produced a different result.

The conversations which Dendinger overheard only tended to confirm that Becken-dorf received the loan of a telephone answering machine from the assistant manager of the Radio Shack. Because this is a fact to which both the assistant manager and Beckendorf had testified at trial, Den-dinger’s testimony on this issue appears to be cummulative. Dendinger also testified that he overheard Beckendorf and the assistant manager discussing the possibility of a loan of the cassette deck. However, the manager had already testified at trial that he loaned the deck to Beckendorf, who later decided to keep it and confected the false police report to accomplish this purpose.

Viewing these circumstances we cannot say that the introduction of Dendinger’s testimony should have compelled the trier of fact to reach a different verdict. He did not testify that Beckendorf intended to return the cassette deck or that a false police report was not filed. Rather his testimony appears to be cumulative and of little probative value. The trial court did not abuse its discretion by denying Beckendorf’s motion for a new trial.

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

AFFIRMED.


text:
    STATE of Louisiana v. Clifton HARRISON.
    No. KA 1032.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied June 26, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John J. Dolan, New Orleans, for defendant-appellant.
    SCHOTT, BYRNES and WARD, JJ.
   BYRNES, Judge.

The defendant, Clifton Harrison, was indicted by a grand jury for second degree murder under LSA-R.S. 14:30.1. On October 19 and 20, 1982 the defendant stood trial and was found guilty as charged by a jury of twelve. On December 2, 1982 he was sentenced to life in prison without benefit of parole, probation, or suspension of sentence.

FACTS

Clifton Harrison, the defendant, and his wife Margaret had been having marital difficulties. On the morning of July 15, 1982, defendant asked his mother if he could borrow her car to check on his house and see if his wife had returned home (he had spent the previous night at his mother’s). His mother lent him her rose-colored Cadillac.

Later that afternoon, on the Newcomb College Campus, at approximately 5:00 P.M. Stephen Christo, a Tulane University graduate student, heard a gunshot. Mr. Christo turned and saw a black male wearing dark trousers and a white jacket standing over the body of a woman. The man saw Christo and began running down New-comb Circle towards Willow Street. At trial, Christo identified Harrison as the man he saw on that day.

Philip Elzey, a campus security guard, received a call about the incident. As he was riding in his security car towards the scene he spotted a black male wearing dark pants and a white jacket running down Newcomb Place toward Willow Street. The subject was entering a rose-colored Cadillac. As Elzey pulled up behind the Cadillac the man looked back, saw Elzey, raised his hands as if surrendering, then suddenly pulled away and fled. Elzey called in the license number on the Cadillac and proceeded to check on the victim. El-zey identified the man he saw as Harrison, both in a photo lineup and at trial.

Defendant’s mother testified that later that evening Harrison telephoned her and told her that he had shot his wife and he did not know if she was dead or alive. At approximately 3:00 a.m. on July 16, 1982 Harrison’s brother accompanied him to the precinct police station and Clifton Harrison turned himself in.

While at the station Harrison was read his Miranda rights and questioned by Detective Donald Curóle. The defendant then gave a statement.

At trial, the defendant testified that he was to meet his wife at her place of employment on the afternoon of July 15, 1982. He stated that after they met, an argument ensued, his wife pulled out a gun, and she was shot during a scuffle. He stated that she released the gun into his hand as she fell to the ground. Not knowing what to do, he panicked and fled.

The only othér evidence offered on Harrison’s behalf was the testimony of Charles Harrison, the defendant’s brother. He testified as to his brother’s emotional state on the day of the shooting and at the police station the following morning. He also testified that his brother’s statement in court was consistent with what he had told him about the shooting.

The state offered the testimony of Chris-to, Elzey, Curóle, and the defendant’s mother. Further, it introduced photographs of the victim, the spent bullet casing, and the bullet which killed Margaret Harrison.

After deliberating for less than two hours, the jury returned a verdict finding the defendant guilty of second degree murder.

The record reveals no errors patent.

ASSIGNMENTS OF ERROR

Defendant makes two assignments of error. He contends: 1) that the trial court erred in denying his motion to suppress the inculpatory statement he made at the police station; and 2) that the trial court erred in denying defendant’s motion for Post Verdict Judgment of Acquittal.

MOTION TO SUPPRESS

By this assignment the defendant contends that he did not voluntarily waive his Miranda rights because he was too emotionally distraught at the time of the arrest.

It is well settled that when introducing an inculpatory statement into evidence the state bears the burden of proving that the statement was given freely and voluntarily and that no pressure was put on the defendant to make the statement. La.R.S. 15:451; See also State v. Neslo, 433 So.2d 73 (La.1983) and State v. White, 399 So.2d 172 (La.1981). Further, where, as here, the defendant alleges that the statement was not free and voluntary the state has the burden of rebutting these allegations. State v. Neslo, supra. See also State v. Burkhalter, 428 So.2d 449 (La.1983). Finally, “in reviewing the trial judge’s ruling on admissibility, his conclusions as to credibility of witnesses are accorded great weight on appeal.” State v. Neslo, supra at 80.

In the case at bar the record shows that the defendant surrendered to police, accompanied by his brother, on July 16, 1982. At that point Detective Donald Cu-róle read the defendant his rights and asked him to review the form and sign it if he understood. The defendant indicated that he did understand and proceeded to sign the form. The detective then took the defendant’s statement.

Detective Curóle testified that while the defendant did begin to cry while making the statement he did not appear to be disoriented or under the influence of drugs or alcohol. Further, Detective Curóle stated that he did not use any physical coercion or promises to induce the defendant into making a statement. Finally, he testified that the statement was promptly terminated when the defendant requested an attorney.

The defendant and his brother both testified that the defendant was upset and crying while he was at the police station. The defendant testified further that he was unable to concentrate when asked questions and that he was too emotionally upset to make any rational judgments. He did not allege any acts of physical coercion or any other form of inducement which may have forced him to make a statement.

It is clear from the record before us that the trial judge gave more weight to the state’s witness at the suppression hearing. In light of the foregoing facts and the jurisprudence we cannot say that the ruling allowing the inculpatory statement into evidence was an abuse of discretion.

SUFFICIENCY OF THE EVIDENCE

By defendant’s second assignment of error he contends that the trial court erred in denying his motion for a post verdict judgment of acquittal under C.Cr.P. Art. 821. Under this article the acquittal may be granted if the evidence, when viewed in the light most favorable to the state, does not reasonably support a verdict of guilty. Hence, the standard of review is similar to that stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and adopted by Louisiana in State v. Edwards, 400 So.2d 1370 (La.1982). In the instant ease, we must also exclude every reasonable hypothesis of innocence as the state’s case is comprised primarily of circumstantial evidence. State v. Shapiro, 431 So.2d 372 (La.1983).

There is eyewitness testimony which placed the defendant at the scene of the murder. Although he was not seen actually pulling the trigger, the fact that he fled the scene, was driving his mother’s car which she lent him that morning, and confessed shooting his wife to his mother, all support a verdict of guilty. Further, he could not explain how his wife was shot in the face at close range during the alleged struggle.

We find that the elements of the crime were proven beyond a reasonable doubt in accordance with La.C.Cr.P. Art. 821, R.S. 15:438, Jackson v. Virginia, supra, and State v. Shapiro, supra.

Accordingly, the trial court properly denied defendant’s motion for Post Verdict Judgment of Acquittal.

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

AFFIRMED.


author: CIACCIO, Judge.

text:
    Claire GALLE v. ALLSTATE INSURANCE COMPANY, Fred and Anna Godin, National Indemnity Company, Keystone Coach Manufacturing Company of Florida, Inc., ABC Insurance Company, Read Datsun, Inc. and DEF Insurance Company.
    No. CA-1380.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.

      Montgomery, Barnett, Brown & Read, Wood Brown, III, Gus A. Fritchie, III, New Orleans, for appellant-Read Datsun, Inc.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, J. David Forsyth, Kathryn J. Lichtenberg, New Orleans, for appellee-Keystone Coach Mfg. Co. of Florida, Inc.
    Before CIACCIO, LOBRANO and WARD, JJ.
   CIACCIO, Judge.

The issue before this court involves the exercise of in personam jurisdiction by Louisiana courts over a non-resident defendant. Exercise of that jurisdiction is authorized by the Louisiana Long-Arm Statute, La.R.S. 13:3201 et seq., and is limited by Constitutional due process constraints as set forth by the United States Supreme Court in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Third-party plaintiff appellant has asked us to determine whether the trial court erred by maintaining third-party defendant’s declinatory exception raising objections of lack of personal jurisdiction and insufficiency of service and citation. We find that the trial court did err, and, therefore, we reverse the ruling, overrule the exception and remand the case to the district court for further proceedings.

Original plaintiff, Claire Galle, was allegedly injured while riding as a guest passenger in a Datsun camper truck. In her suit to recover for her injuries she named as original defendants, among others, Allstate Insurance Company, Keystone Coach Manufacturing Company of Florida, Inc., and Read Datsun, Inc. Allstate insured the owner of the camper; Keystone modified the Datsun truck chassis and fitted it with the camper assembly; Read Datsun sold the vehicle to the initial consumer owner.

Allstate filed a third-party petition against co-defendant Keystone. Thereafter, Keystone filed a declinatory exception of lack of jurisdiction directed against the original plaintiff, Claire Galle, and third-party plaintiff, Allstate. This exception was maintained and no appeal was taken.

About eight months later, Read Datsun filed a third-party petition against Keystone, who had been dismissed from the suit. Keystone again filed a declinatory exception raising objections of lack of personal jurisdiction and insufficiency of service and citation. Keystone also pleaded res judicata on the jurisdictional issue. Keystone sought to avoid litigation of the issue by whatever doctrine the court would accept to reach the desired result, i.e., res judicata, collateral estoppel or law of the case.

The district court maintained Keystone’s declinatory exception. We do not find any ruling in the record on Keystone’s plea of res judicata. By considering the merits of the declinatory exception, the trial court impliedly overruled this plea. Even assuming a valid and reviewable ruling by the trial court, Keystone did nothing to preserve this issue for review by this court. Because Keystone devotes a substantial portion of its appellate argument to this issue we have decided to address it.

Louisiana application of the doctrine of res judicata establishes a presumption of correctness and precludes re-litigation of the object of a judgment only when there is (1) identity of the parties, (2) identity of “cause”, and (3) identity of the “thing” demanded. La.C.C. Art. 2286; Braquet v. Administrators of the Tulane Educational Fund, 419 So.2d 30 (La.App. 4th Cir.1982), writ denied, 423 So.2d 1148 (La.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 348 (1983), and cases cited therein. In the present situation the parties involved in these exceptions, viz. Keystone and Read Datsun, are not identical to the parties involved in the previous exceptions, viz. Keystone, Clare Galle, and Allstate. As a result, a plea of res judica-ta cannot be sustained.

Collateral estoppel is a doctrine of issue preclusion alien to Louisiana. It is a doctrine not susceptible to an orderly application in a jurisdiction utilizing civil law terminology. Consequently, the Louisiana Supreme Court has held that none of the variations of the common law doctrines of res judicata, including collateral estoppel, apply in Louisiana. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). Keystone cannot argue, therefore, that Read Datsun is collaterally estopped from litigating the issue of the court’s jurisdiction over Keystone.

The “law of the case” principle operates merely as a discretionary guide. It does not prevent argument in cases of palpable former error. It should not be applied so mechanically as to accomplish manifest injustice. Petition of the Sewerage and Water Board of New Orleans, 278 So.2d 81 (La.1973); Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972). The “law of the case” principle does not. prevent Read Dat-sun from requesting the court to recognize its jurisdiction over Keystone.

Read Datsun has appealed from the ruling maintaining the declinatory exception. Appellant relies upon Louisiana’s Long Arm Statute, La.R.S. 13:3201, particularly section (d), to support the proposition that Keystone is amenable to suit in this state. The statute provides:

Sec. 3201. Personal jurisdiction over nonresidents
A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising, from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed ■ through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

The legislative intent in enacting this statute was to extend personal jurisdiction of Louisiana courts over non-residents to the full limits of due process, i.e. to any non-resident who has “minimum contacts” with this state. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Co., 283 So.2d 687 (La.1973); Soileau v. Evangeline Farmer’s Co-Op., 386 So.2d 179 (La.App. 3d Cir.1980). This jurisprudence requires a liberal interpretation of La.R.S. 13:3201 in favor of finding jurisdiction. Adcock v. Surety Research and Investment Corp., 344 So.2d 969 (La.1977); Latham v. Ryan, 373 So.2d 242 (La.App. 3d Cir.1979).

The finding of jurisdiction over non-residents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and “traditional notions of fair play and substantial justice” as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), International Shoe Company v. State of Washington, supra, and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, supra; Soileau v. Evangeline Farmer’s Co-Op., supra.

To the extent that a corporation exercises the privilege of conducting activities within a state it enjoys the benefits and protection of the laws of the state. The exercise of this privilege carries with it a corresponding responsibility to respond to suits which are brought against the corporation as a result of its activities within the state. International Shoe Company v. State of Washington, supra. Although the degree of contact with the forum state may vary with the activities of the defendant, it is essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Company v. State of Washington, supra.

When a corporation purposely avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there. The forum state does not exceed its powers under the due process clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The evidence submitted both in support of and in opposition to the exception consisted of affidavits and documents attached, answers to interrogatories, and any relevant documents in the record. No testimony was taken.

Keystone submitted the affidavit of Gordon Cole, President of Keystone. This affidavit established the following:

(1) Keystone is a Florida corporation, and maintains its principal office and place of business in Florida.
(2) Keystone is not qualified to, and does not do business in Louisiana. It has no office or place of business in Louisiana.
(3) Keystone has no agent for acceptance of service in Louisiana, nor does it have any personnel in Louisiana.
(4) Keystone owns no property, no bank accounts, nor does it have a telephone listing in Louisiana. Consequently, it does not pay any real estate, personal property, income or other taxes in Louisiana.
(5) Keystone does not advertise or solicit business for its products in Louisiana. It does not derive substantial revenue from any goods used or consumed, or services rendered in Louisiana.

In answers to interrogatories Keystone replied: “Keystone is in the business of supplying to retail dealers camper components to be attached to the chassis of motor vehicles supplied by other entities. For the period beginning in 1979, ... Keystone has sold only one (1) camper unit to a Louisiana dealer (and that, in 1980).” Further replies indicate that since 1979 Keystone’s business in Louisiana has amounted to limited and occasional filling of unsolicited orders for repair parts. Since 1979 Keystone’s revenue from Louisiana sales has amounted to less than one-tenth of one percent (.001) of its total revenue.

The camper in question in this suit was sold to Read Datsun by Keystone in 1978. The affidavit of Stephen Louis Read, president of Read Datsun in 1978 and 1979, established that in 1978 Read Datsun purchased from Keystone three campers for a total purchase price of $25,784.40 ($8,594.80 each). This assertion is corroborated by invoices evidencing the sale, and is not contradicted by Keystone. The affidavit of Gayle L. Dalfeares, Jr., vice-president of Read Datsun in 1978 and 1979, repeats this same information.

The affidavits of Mr. Read and Mr. Dal-feares provide further information on how the sales from Keystone were confected, i.e.:

2. That during the summer of 1978, he [Stephen Louis Read] was contacted by an agent and/or representative from Keystone Coach Manufacturing Company of Florida, Inc. at the Read Datsun, Inc. place of business on Fifth Street in Gretna, Louisiana.
3. That the Keystone Coach Manufacturing Company of Florida, Inc., agent and/or representative reached the Read Datsun, Inc. place of business by virtue of traveling in a Datsun 620 Camper.
4. That he, Stephen Louis Read, discussed the assorted features and pricing of the Datsun 620 camper with the representative from Keystone Coach Manufacturing Company of Florida, Inc., while said representative demonstrated the various features of the 620 camper utilizing the same camper in which he was traveling as an illustration.
(5) That upon discussing the various features and pricing of the Datsun 620 camper with the representative from Keystone Coach, Stephen Louis Read decided to purchase, on behalf of Read Datsun, Inc., three of such campers from Keystone Coach Manufacturing Co. of Florida, Inc.

In 1979 the camper in question was' sold by Read Datsun to a Louisiana resident.

The evidence establishes that in 1978 Keystone, through an agent or representative, purposely availed itself of the privilege of conducting business in Louisiana. The exercise of this privilege carried with it a corresponding responsibility to respond to suits which are brought against Keystone as a result of its activities within this state. We consider the revenue derived from this activity ($8,594.80 per unit) to be substantial, regardless of the ratio of this revenue to Keystone’s total revenue.

Keystone delivered its products (more particularly, at least four campers, three in 1978 and one in 1980) into the stream of commerce fully expecting that they would be purchased by consumers in Louisiana. In light of this conduct and connection with Louisiana, Keystone could have reasonably anticipated being haled into court here. We find sufficient contacts between Keystone and Louisiana to satisfy due process and traditional notions of fair play and substantial justice.

Throughout the proceedings below and in argument to this court, Keystone has focused upon its activities since 1979. It has argued that any prior years’ activities were irrelevant as too far removed from the present suit. Keystone has relied upon its present almost non-existent contacts with Louisiana as the basis for its claim of immunity from suit here.

The present suit arises from injuries suffered allegedly as the result of defects in a product manufactured by Keystone. Keystone’s connection with this product, its introduction into Louisiana commerce and Keystone’s contacts with Louisiana around the time of the product’s entrance into the stream of commerce are the activities which must be considered in determining whether Keystone is amenable to the jurisdiction of the Louisiana courts. We find, after considering this information, that Keystone is subject to the jurisdiction of the Louisiana district court.

Keystone also excepted to the sufficiency of service and citation. We have searched the record and find that it does not contain evidence concerning this issue. Further, the elements of this issue were not argued either in memorandum to the district court or in brief to this court. We find it necessary, therefore, to remand this matter to the district court for a hearing on the issue of sufficiency of service of process and citation.

Accordingly, we hold that for the purposes of this lawsuit Keystone Coach Manufacturing Company of Florida, Inc., if properly served and cited, is subject to the personal jurisdiction of the Louisiana district court. The ruling of the district court maintaining Keystone’s exception asserting lack of personal jurisdiction is reversed and the exception overruled. As to that' part of Keystone’s exception asserting insufficiency of service and citation, we vacate the judgment of the district court and, as noted above, remand for a hearing on this issue.

REVERSED IN PART, VACATED IN PART, AND REMANDED.

      . If Keystone desired to raise this issue directly in this court, it could have properly filed an exception here. See La.C.C.P. Art. 2163.

      . Keystone filed a “Motion to Strike Affidavit and Deposition” attacking the evidence submitted by Read Datsun. The record before us does not indicate how, or even if, the trial court ruled on this motion. Since the motion sought to exclude this evidence from consideration by the court in ruling on the exception, we assume that the trial court impliedly denied Keystone’s motion when it ruled on the exception after indicating having considered all of the evidence. Even assuming a valid reviewable ruling by the trial judge, Keystone did nothing to preserve this issue for review by this court.


author: BOWES, Judge.

text:
    STATE of Louisiana v. Shiron H. HONORE.
    No. 83-KA-745.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Philip E. O’Neill, Gretna, for defendant/appellant.
    Gerald Alonzo, William C. Credo, III, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff/appellee.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

Shiron H. Honoré was charged by a Bill of Information with violation of La.R.S. 14:27 and 14:65, attempted simple robbery. She waived a trial by jury. Following a trial before Judge Alvin Rudy Eason on January 13, 1983, the defendant was found guilty as charged. Ms. Honoré was sentenced to serve one year imprisonment in the custody of the Department of Corrections on February 23, 1983.

From that conviction and sentence, the defendant now appeals, designating two assignments of error.

FACTS

Between nine and ten o’clock on the evening of August 25, 1982, the defendant entered the Omelette Shop located on the Westbank Expressay in Marrero, Louisiana, and sat down in one of the back booths. The waitress, Laura Bergens, took Ms. Honoré a menu and told her that she would return shortly to take an order. When she went back, Ms. Honoré gave the waitress her order and, at that point, indicated that she was a part-owner of the business and also knew the owner. Ms. Bergens took her order, but, uncertain of Ms. Honore’s intentions regarding payment, conferred with the cook, Diane Gar-nier. Together they decided that Ms. Hon-oré had to pay for the food unless she gave them her name and they received telephone confirmation from the owner for her to merely sign the check. Ms. Bergens relayed this decision on to the defendant who stated that she would pay for her food. Following her meal, the defendant indicated that she wanted to talk to Ms. Ber-gens. As the waitress sat down to engage in conversation, Ms. Honoré grabbed her by the wrist. Ms. Bergens narrated the subsequent events as follows:

... [S]he told me that Big Daddy was outside with a gun pointed at my head and if I didn’t give her the money that he was going to blow my head off. So she told me to get all of the twenties, all of the tens, and all of the fives out of the register and bring them to her and she gave me a penney [sic] and put it in my hand, and told me to ring that penney [sic] up on the register and bring her back all the money.

In an attempt to verify what she had been told and upon the instruction of the defendant, Ms. Bergens looked over her shoulder and saw the taillights of a yellow Cadillac in the gas station, adjacent to the restaurant. When she again faced Ms. Honoré, Ms. Bergens was told by the defendant that there was a gun in the small purse she was carrying. The defendant then directed the frightened waitress to get up and walk slowly to the cash register.

As she walked towards the office, the waitress whispered to the cook, Diane Gar-nier, “to call the police, that she was trying to rob me.” After speaking with the cook, the waitress apparently became hysterical and attempted to run through the office to the kitchen area. Finding the door locked, she returned to the register area where the cook was on the phone and told her to open the office door. Ms. Bergens stated that Ms. Honoré followed her into the office after the cook opened the door and began explaining that “it wasn’t her trying to rob me ... it was Big Daddy.” Ms. Gamier, the cook, began comforting the waitress to calm her down and, at this point, the defendant went through the kitchen into the area behind the service counter where the register was located. Although the defendant was not seen opening the register, the cook testified that when she came out of the kitchen and crouched under the service counter to complete her call to the police “someone [was] banging on the register and I heard change rattling and I seen dollars moving and everything.” Shortly thereafter, the police arrived. The defendant then came from behind the counter through the office and surrendered herself to the officers. She was subsequently searched but neither money nor a weapon was found on her person. Additionally, the purse she was carrying was not recovered. One hundred dollars was ascertained to be missing from the cash register.

At trial, Ms. Honoré denied any participation in the theft.

ASSIGNMENT OF ERROR NUMBER 1

It is error for the trial court to find the defendant guilty of attempted simple robbery when no rational trier of fact could have found the defendant guilty beyond a reasonable doubt, having given the state the benefit of every favorable inference of all admissible evidence.

ARGUMENT

The defense submits that the state failed to introduce evidence of two essential elements requisite to prove that the defendant actually attempted to commit a simple robbery. First, no evidence of specific criminal intent was presented and, second, there was no evidence of some direct action on the part of the defendant to take or tending to take money from the register. Consequently, it is maintained by the defense that a review of the evidence for sufficiency would not satisfy the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Rather, it is submitted by the defense that the state proved only extortion.

La.R.S. 14:4 provides that conduct made criminal under several articles may be prosecuted under either provision. The discretion rests with the district attorney. It was conceded by the defense in brief that the state proved the elements of extortion, particularly the requisite specific intent. We find that the elements of attempted simple robbery were also proven.

The Jackson standard of review for sufficiency of the evidence, adopted by our courts in State v. Byrd, 385 So.2d 248 (La.1980), is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Sutton, 436 So.2d 471 (La.1983) and State v. Boelyn, 432 So.2d 260 (La.1983).

At the time of the commission of the crime, La.R.S. 14:65 defined simple robbery as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation but not armed with a dangerous weapon.” [emphasis ours].

La.R.S. 14:27 states in pertinent part that “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended....”

Specific criminal intent is described in La.R.S. 14:10 as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 15:445 states that “[i]n order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

State v. Williams, 383 So.2d 369 (La.1980) expanded this somewhat to note that because specific intent is a state of mind, in the absence of direct evidence, it must also be inferred from the circumstances. The mandate of La.R.S. 15:438 relative to circumstantial evidence must therefore be considered: “Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

As noted in State v. Wright, 445 So.2d 1198 (La.1984) La.R.S. 15:438 is not a separate test to be applied in lieu of the Jackson standard whenever an element of the crime charged is to be proven by circumstantial evidence. Rather,

[A]ll evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an eviden-tiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. (Supra, at p. 1201)

Finally, we note that in State v. Graham, 420 So.2d 1126 (La.1982), the court stated: “... specific intent is a state of mind, and need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant [citation omitted].”

The threat associated with extortion is usually in regard to some future action with which the offender can exploit the victim, while the threat in simple robbery requires the victim’s immediate intimidation or the fear of the instant use of force. In this case, Ms. Bergens was threatened with having her head blown off if she did not get the money out of the register.

We find both the direct and circumstantial evidence presented by the state in this matter is such that when reviewed in a light most favorable to the prosecution, a rational trier of fact could, indeed, find the essential elements of the crime of attempted simple robbery were proven beyond a reasonable doubt. In fact, it would be difficult, if not logically impossible to find otherwise. Appellant’s first assignment of error is obviously without merit.

ASSIGNMENT OF ERROR NUMBER 2

It is error for the trial court to impose a sentence of one year imprisonment on defendant which sentence is excessive and in violation of L.S.A.-Const. Article 1, Section 20.

ARGUMENT

The defense submits that because Ms. Honoré is a first offender with a history of mental illness, the sentence of one year is excessive and should be vacated and remanded with instructions. It was also alleged that the trial court failed to follow the guidelines set forth in La.C.Cr.P. art. 894.1 and therefore did not take into consideration various factors which would have militated for probation.

The sentence here falls clearly within the lower range of the statutory limits since the maximum sentence which could have been imposed was three and one-half years and a fifteen hundred dollar fine. Additionally, we note that the facts of this case come very close to being those of attempted armed robbery, a much more serious crime.

In his sentencing colloquy, the trial judge made a special reference to Ms. Honoré’s proclivity towards violence. Referring to the pre-sentence investigation (not made a part of the record), the court noted, “[t]his person is dangerous to the community.” (R. p. 111).

We have ascertained that there was minimal compliance with the dictates of Article 894.1. Even the failure to comply with the article, however, does not automatically result in the finding of an excessive sentence, nor automatically require vacation and remand. See State v. Smith, 430 So.2d 31 (La.1983); State v. Landos, 419 So.2d 475 (La.1982); State v. McElveen, 439 So.2d 601 (La.App. 1st Cir.1983); and State v. Vallare, 430 So.2d 1336 (La. App. 3rd Cir.1983).

In State v. Wimberly, 414 So.2d 666, 672 (La.1982), the Supreme Court noted:

We have not as of yet acted under our supervisory, administrative or rule making powers to require that sentencing judges state basic facts and reasons in every case. In those cases in which we have vacated the sentence and remanded the case for resentencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing judge’s failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant’s complaints of an excessive sentence had merit. In each case, pursuant to our duty to uphold the constitution, which expressly prohibits the imposition by law of excessive punishment, we vacated the sentence and remanded the case for resentencing on an adequate record, including strict compliance with Article 894.1.
Our decision in such a case represents a finding of a substantial possibility that the sentence is excessive and not a final judgment that it is invalid.

This court previously held in State v. Williams, 430 So.2d 782 (La.App. 5th Cir. 1983) that, even where there has not been full compliance with La.C.Cr.P. art. 894.1, a remand is not necessary if the record reflects an adequate factual basis for the sentence imposed.

In the instant case, the testimony revealed the defendant exhibited a very violent demeanor in that she threatened to blow off Ms. Bergens’ head if she did not get the money from the register and that the two employees of the restaurant were in fear for their lives. Ms. Bergens fled for the safety of the back of the shop, while Ms. Gamier hid under the counter. It would appear that the docile appearance exhibited by the defendant on the witness stand was not a true picture of her behavior in the restaurant.

We believe the trial court’s sentencing choice is fully supported by the record.

State v. Murdock, 416 So.2d 103 (La.1982) noted that the function of the reviewing court is not merely to substitute its judgment for that of the trial court, but, rather, to determine if the lower court abused its broad sentencing discretion. We hold it did not and that the sentence chosen by the trial judge is fully supported by the record. Therefore, we affirm both the conviction and the sentence imposed on the defendant.

AFFIRMED.

      . La.R.S. 14:66 defines extortion as the "communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description.”