author: DUFRESNE, Judge.

text:
    Wayne BUTLER v. JEFFERSON DISPOSAL CO., INC. and ABC Insurance Company.
    No. 84-CA-137.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Writ Denied Dec. 7,1984.

      Robert W. Drouant, New Orleans, for plaintiff-appellant.
    Darryl D. Siearelli, Robert C. Leininger, Metairie, for defendant-appellee.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This suit involves a claim for workmen’s compensation benefits, medical expenses, penalties and attorney’s fees alleging that the employee was totally and permanently disabled by a job-related accident which occurred on April 15, 1982. The district court rendered judgment in favor of the employer and dismissed the employee’s suit. The employee took this devolutive appeal asserting that the district court committed error by not finding that the employee’s disability was caused by the job-related accident and not finding that the employee was totally and permanently disabled and entitled to workmen’s compensation benefits and medical expenses. We agree with the trial court and accordingly, affirm.

Wayne Butler was employed by Jefferson Disposal Company, Inc. working as a laborer on one of its residential garbage collection trucks. Mr. Butler had been hired as a “hopper”, his duties were to pick up garbage along various routes and dump the garbage into a truck as it progressed down the street. On April 15, 1982, while performing his duties, he lifted some garbage in a trash bag and sustained a lower back injury. He contends that when he attempted to lift the trash bag, it was so heavy that he fell down, and felt pain in his lower back, groin and upper portion of his neck and shoulders. Butler’s co-workers called their supervisor, Herbert Smith and reported the injury; shortly thereafter, he was taken to the company physicians, Drs. Anthony LaNasa and Milburn Calhoun.

Dr. LaNasa was the first physician to examine him and his examination was void of any objective signs of injury. His diagnosis characterized Butler’s injury as a muscle strain of the back and felt he could return to work. However, he returned to the clinic and saw Dr. Calhoun, who began conservative treatment. As a result of constant complaints of pain he was hospitalized at West Jefferson Hospital from April 26, 1982, until May 8, 1982.

During his hospitalization, Mr. Butler’s condition was reviewed in consultation with an orthopedic surgeon who made a diagnosis of lumbar strain. After Mr. Butler’s discharge from West Jefferson Hospital, he returned to Dr. LaNasa who found a normal examination. Due to continued complaints of pain, Dr. LaNasa referred him to Dr. Carl Culicchia, a neurological surgeon who examined him and found negative results.

Because Mr. Butler continued to suffer and felt unable to work, he consulted Dr. Franklin Toups and Dr. Charles Billings.

During treatment by Dr. Billings, a CAT Scan was taken in which there was noted some posterior bulging of the disc. Later, a discogram taken of his back indicated lumbar disc disease.

While under the care of Dr. Billings, plaintiff was interviewed by Susan Smith, an occupational therapist and vocational rehabilitation evaluator, who tested Mr. Butler to determine what, if any, occupation he could perform considering his physical condition. Ms. Smith found that unless Mr. Butler had “any significant increase in his capabilities, he could not return to any kind of active work.” This finding was based on her evaluation of Mr. Butler’s “physability to meet physical demands of any activity,” especially his lack of spontaneity and agility.

Barry Gregory, a vocational rehabilitation expert, representing Jefferson Disposal, testified that Mr. Butler was qualified for a number of jobs despite his never interviewing him. Nor did Jefferson Disposal ever offer to have Mr. Butler retrained for or evaluated for any other jobs.

Mr. Butler asserts through counsel the following specifications of error:

1. The trial court erred in failing to find that there was a job-related accident and injury sustained by Wayne Butler.

2. The trial court erred in giving more weight to the testimony of the non-treating physicians.

3. The trial court erred in its finding a lack of credibility of plaintiff based upon the job application.

4. The trial court erred in allowing the testimony of the vocational expert for Jefferson Disposal in contradiction of the pretrial order and without adequate notice.

5. The trial court erred in allowing open re-cross examination when Mr. Butler was put on the stand for rebuttal.

The chain of causation required by LSA-R.S. 23:1031 is that the employment caused the accident, the accident caused the injury, and the injury caused the disability. The plaintiff-employee in a workmen’s compensation accident has the burden of establishing by a preponderance of the evidence the causal connection between his disability and the accident. Martin v. H.B. Zachry Company, 424 So.2d 1002 (La.1982). The factual findings of the district court as to work-related disability-are entitled to great weight on appellate review. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La. 1979).

The trial court stated that Mr. Butler’s case failed because of credibility reasons and because the preponderance of the medical testimony weighed in favor of the defendant, Jefferson Disposal Company. Here the trial court considered the testimony of Drs. Anthony LaNasa, Carl Culicchia and Wilmot Ploger on behalf of defendant and the testimony, of Dr. Charles Billings on behalf of plaintiff and the deposition of Dr. Franklin Toups. After reviewing all of this evidence, the trial court in its Reasons For Judgment found the evidence supporting the opinions of defendant’s experts.

The trial court stated as follows:

“As to the medical testimony, I gave more weight to the testimony of Culicc-hia, LaNasa and Ploger, then I gave to Billings. I just simply found that they were — that their conclusions were better supported by the evidence then the conclusions of Doctor Billings. Of course, I did not have the live testimony of Doctor Toups: I didn't have an opportunity to observe his testimony.”

Furthermore, the trial court reasoned that Butler had lied on material issues and consequently elected to disregard his testimony in its entirety. The trial judge stated the following in his reasons from the bench.

“There were inconsistencies to say the least to Mr. Wayne Butler’s testimony. On cross examination it was pointed out that in his original employment application, he was asked if he’d ever been injured and he answered no: whereas, the testimony indicated that in 1975, he had a back injury. He was in an automobile accident that same year. In 1974, he was in some type of auto accident. And, more importantly, in 1976, he had a compensation claim against Delta Commodities.
He was asked if he was ever convicted of a crime. He stated no; but the evidence indicated otherwise.
I was not satisfied with is expía — he tried to explain — his answers, in that employment application and I was simply not impressed with his answers after considering his demeanour.
... So, in considering from a credibility standpoint, I could not accept the — as true, many of the statements made by the plaintiff in this case and I elected therefore to — since I believed he lied on material issues. I elected to disregard his testimony entirely.
In conclusion, the plaintiff’s case failed because of credibility reasons and it also fails because the medical testimony preponderantly weighs in favor of the defendant.”

The trial court found the testimony of Butler, his lay-witnesses, and medical experts with regard to pain suffered by Butler to be highly questionable and lacking in credibility. It is the trial court’s function to determine the weight to be accorded the medical and lay testimony. Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982). Since the physical inability of a compensation claimant to return to work due to substantial pain is a question of fact, we will not disturb the trial court’s determination unless clearly wrong. Patín v. Continental Casualty Company, 424 So.2d 1161 (La. App. 1st Cir.1982). Upon review of the record, and in light of the trial court’s evaluations of credibility, we find no manifest error in the trial court’s conclusion that the limited medical evidence and lay testimony support a conclusion that plaintiff is not totally disabled. The standard of review as implemented by this court and made applicable to the matter before this court is whether the trial court was manifestly erroneous. Perrilloux v. Godchaux-Henderson Sugar Co. Inc., 436 So.2d 1325 (La.App. 5th Gir.1983). See also: Babineaux v. Continental Oil Co., 407 So.2d 1323 (La.App. 3rd Cir.1981) and Lovisa v. Employers Ins. of Wausau, 343 So.2d 390 (La.App. 4th Cir.1977).

As to the plaintiff’s other allegation that the trial judge erred in allowing a vocational expert witness to testify in contradiction of the pre-trial order: We find no great moment in this at all. The trial judge has much discretion in any determination made to allow modification of any pre-trial order. See Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (La.App. 1st Cir.1982). Here both counsel were allowed to add an expert witness to the pre-trial order and the record reflects that plaintiff had adequate notice to depose the defendant’s expert pri- or to trial. Further, plaintiff has not shown that the testimony of said expert has in anyway prejudiced the plaintiff, nor that such action by the trial court was an abuse of the trial judge’s discretion.

Plaintiff further contends that the trial judge erred by allowing the defendant and the court to cross-examine the plaintiff when he testified on rebuttal. Wide latitude is given to counsel in cross-examination of witnesses. We likewise find no prejudice to the plaintiff here in this action of the trial judge. The record reflects adequate and sufficient evidence to support the judgment of the district court.

Accordingly, for the foregoing reasons, the decree of the district court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    N.G. CARTWRIGHT v. DEPARTMENT OF REVENUE AND TAXATION.
    No. 83 CA 0098.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied Feb. 15,1985.

      James A. Rountree, Hudson, Potts & Bernstein, Monroe, for first appellant.
    Howard M. Romaine, Dept, of Revenue and Taxation, Baton Rouge, for second appellant.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Department of State Civil Service.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

This is an appeal from a decision of the Civil Service Commission. N.G. Cartwright, a Revenue Tax Auditor III, was terminated by the Department of Revenue and Taxation. The Civil Service Commission upheld this termination, and Cartwright now appeals.

Cartwright suffered a heart attack in August of 1980. As a result, he was incapacitated until his return to work on October 27, 1980 on a limited basis. Fred Us-sery; Cartwright’s supervisor, asked his secretary, Nellie Littleton, to talk to Cartwright about taking disability retirement because Ussery felt Cartwright’s work was substandard. On Friday, November 7, 1980, Littleton informed Cartwright that Ussery was dissatisfied with his work. Cartwright was offended by this, and late that afternoon, confronted Ussery. At the meeting, Ussery informed Cartwright that he would not approve Cartwright’s time sheet for the week of November 3-7, because he did not feel Cartwright had performed any meaningful work. Both men began to argue loudly, and as they were leaving the office, Cartwright removed his coat and tie and challenged Ussery to fight. Littleton intervened in the fracas and calmed the men down.

The following week, while on sick leave status, Cartwright brought a .357 Magnum pistol to the office and showed it to some employees. When Cartwright brought the pistol into the office, it was in a case, and the case was in a sack. He testified he brought the gun to the office to try to sell it. Ussery was later informed by another employee that Cartwright had the gun in the office.

Cartwright testified that he was told in January of 1981 that he must either take disability retirement or be terminated. He submitted an application for disability retirement in January, and then withdrew the application when he filed a civil suit against the Department. Cartwright continued to work at that time.

On the basis of a letter dated April 2, 1981, Cartwright was informed that he was being terminated effective the close of business April 10,1981. The reasons given for the termination were insubordination and falsification of agency documents involving the weekly report of attendance for the week of November 3, 1980 through November 7, 1980.

A hearing on the termination was held on February 2, 1982 before a referee appointed by the Commission. The referee upheld the termination, and Cartwright appealed to this court. That appeal was remanded to the Commission on a procedural matter. Cartwright v. Dept. of Revenue and Taxation, 442 So.2d 552 (La.App. 1st Cir.1983). On remand, the Commission concluded that there was no falsification of documents and that Cartwright’s action in taking a pistol to the office was not an act of insubordination. However, the Commission did find that Cartwright was the aggressor in the incident of November 7, 1980, when he challenged Ussery to fight. The Commission further found that Ussery did not provoke the incident. Therefore, the Commission found the termination to be justified.

By letter dated October 1, 1982, the Department appealed the decision of the Civil Service Commission dated and filed September 15, 1982. The Department complained the decision was erroneous in the following respects: (1) The Commission did not make a factual finding that Mr. N.G. Cartwright had threatened the life of his superior, Mr. Ussery; (2) That taking a pistol to the office, after having made a threat on Mr. Ussery’s life, is not insubordination. For the reasons hereafter set forth, we find no merit to these assignments of error.

The record amply supports the factual findings of the Commission and we accept them as being correct. A reviewing court is not to disturb the factual findings of the trier of fact in the absence of manifest error. Allen v. DHHR, Ruston State School, 426 So.2d 234 (La.App. 1st Cir. 1983). However, because we find that the termination was unduly harsh in this instance, we remand.

Cartwright testified that he had been a state employee for over twenty-one years. He also testified that he had never been formally disciplined for any action as a state employee prior to his termination. The Department offered no proof to contradict any of this testimony.

Obviously, dismissal from permanent employment is the most extreme form of disciplinary action that can be taken against a classified state employee. Thus, cause justifying some lesser form of disciplinary action might not justify a dismissal. Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir.1981). In light of the length of Cartwright’s employment and his service record, we must conclude dismissal was not justified by this isolated incident.

The present case can be distinguished from Paulin v. Department of Sanitation, 388 So.2d 136 (La.App. 4th Cir.1980), which is relied on by the Department. In Paulin, the employee had not been employed for a great length of time, and there was no proof as to the good work record of this particular employee. Because of this, the Court hesitantly upheld dismissal for one aggravated incident. In the present case, Cartwright’s record and length of employment mitigate against his termination.

Cartwright also argues that since the Department waited five months after the incident before the disciplinary action was taken, it should be estopped from taking any action. In support of his position, Cartwright cites two cases: Hamlett v. Division of Mental Health, Louisiana Health and Human Resources Administration, 325 So.2d 696 (La.App. 1st Cir. 1976), and Robbins v. New Orleans Public Library, 208 So.2d 25 (La.App. 4th Cir. 1968). In Hamlett, the employee was suspended after an incident. He was later given an unsatisfactory rating based on that incident, and based on that rating was dismissed. The court held that the employer was estopped from waiting approximately 6 months to revive this episode as a ground for further disciplinary measures. However, the court based its holding on the fact the incident had already been used in a disciplinary action.' There is no such showing in the present case; Hamlett is not applicable. In Robbins, the employer waited five months after the incident to termi-' nate the employee. The court reversed the dismissal of the employee. The court held there was no proof of conduct prejudicial to the employer. The opinion later stated: “In this case the appointing authority waited too long to act and then its action was poorly presented in all respects.” Robbins, 208 So.2d at 31. Cartwright argues that this means that the employer cannot wait five months after an incident to act, but a complete reading of the opinion shows the decision was based on lack of proof for the dismissal, not a theory of estoppel. (Emphasis added). Other factors mitigate against a finding of condonation by the Department of the actions of Cartwright, the most important of which is that Cartwright suffered another heart attack subsequent to the incident and the Department was allowing him time to recover. Therefore, in the present case, the five month delay does not bar the disciplinary action of Cartwright.

Under La.R.S. 42:1451, attorney’s fees shall be awarded to the employee if the action by the department is found to be unreasonable. In the present case, while the department did order too severe a disciplinary action, some such action was not unreasonable under these particular circumstances. Therefore, attorney’s fees will not be granted.

It is, therefore, ordered that this case be remanded to the Civil Service Commission in order that disciplinary action can be taken consistent with the views of this opinion. See Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984).

REMANDED.

ON DENIAL OF REHEARING

The Commission may in its own discretion consider additional evidence when determining the appropriate penalty to be assessed.


author: PRICE, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee, v. Richard W. THOMAS, Appellant.
    No. 16207-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied March 15,1985.

      Indigent Defender’s Office by William T. Giddens and Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., New Orleans, Paul J. Carmouche, Dist. Atty., Howard M. Fish and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN and SEXTON, JJ., and PRICE, J. Pro Tern.
   PRICE, Judge Pro Tem.

The defendant, Richard Wayne Thomas, appeals his conviction of Sexual Battery, contrary to the provisions of LSA-R.S. 14:43.1. The defendant was originally indicted for the offense of aggravated rape, LSA-R.S. 14:42. However, the jury found the defendant guilty of the lessor included offense of Sexual Battery. The defendant was sentenced to serve six years at hard labor. Finding no error by the trial court, we affirm.

FACTS

On the evening of May 13, 1982, Angela Jefferson, age sixteen, went to the Omega Club, a bar located on Line Avenue in Shreveport. The testimony at trial reflects that as Angela was leaving the club, she and the defendant had an altercation and that at some point in the argument, Angela ran out of the club from the defendant. Tommy Lee Gray, who accompanied her that night, caught up with Angela and walked with her towards her home.

Angela and Gray testified that near the intersection of 70th Street and Thornhill, the defendant and a companion, Rusty Bristo, drove up beside them. The defendant got out of the vehicle he was driving and pointed a gun at Gray and told him to keep walking and not to look back. Gray followed defendant’s instructions and kept walking. The defendant then forced Angela into the front seat of the car between defendant and Bristo with Bristo at the driver’s seat.

Angela testified that the defendant and Bristo then drove to a nearby field where the defendant tore her clothes off as Bristo held the gun. Angela testified that after the defendant tore her clothes off, the defendant raped her. Angela further testified that after she had intercourse with the defendant she managed to escape, running to a nearby house. It is upon these events for which the jury found the defendant guilty of Sexual Battery.

The defendant filed seven assignments of error in the district court. However, assignments of error 2, 3, 4, 6, and supplemental assignment of error number 1 were not briefed or argued and are thus deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974). Assignments of error that are briefed by defendant are as follows:

1. The lower court erred in denying the motion to suppress in relation to the statements given to law enforcement officers and the physical evidence obtained from his automobile.
5. The conviction should be reversed because no rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant contends that the trial court erred in denying his motion to suppress. The evidence adduced at the Motion to Suppress hearing reflects the following facts.

After Angela Jefferson was abducted by the defendant, Gray went directly to Angela’s home located at 66th Street and Thorn-hill. Gray informed Angela’s mother of what had occurred at which time they called the Shreveport Police Department. Police officers responding to the call met Gray and Angela’s mother at the corner of 69th Street and Thornhill. One officer took Angela’s mother back home and the other two officers went to the corner of 70th Street and Thornhill where Gray had told them Angela had been abducted. Near the intersection of 70th and Thornhill police officers found lying on the side of the street a gold pendant and a black belt.

Gray informed the officers that he did not know the defendant’s name; however, Gray informed the police officers that he knew the defendant’s face and where he thought the defendant lived. The two officers and Gray then proceeded to attempt to find the defendant. During the course of the investigation, Gray and the officers found an individual named Charles Pouncy who knew the defendant and his name. At that point Gray, Pouncy, and the officers attempted to locate the defendant. As the officers were returning Pouncy to North Emerald Loop, Pouncy recognized the defendant’s car under a carport at 264 North Emerald Loop. The officers then drove down one block from the address and allowed Pouncy and Gray to get out of the patrol car. The officers then returned to the North Emerald Loop address.

As the officers were walking to the door of the home, one of the officers shined his flashlight into the defendant’s vehicle. The officers observed lying in the backseat of the vehicle a pair of blue pants, a white blouse, and a bra.

After the police officers knocked on the door of the home, a black male dressed only in a pair of blue jeans answered the door. The officers asked the black male if Richard Thomas lived there. The defendant then identified himself as Richard Thomas. The officers asked the defendant if they could speak to him outside, after which time they walked outside and talked.

The defendant informed the officers that he had been playing cards that entire evening. The defendant also told the officers that he had loaned his car to a person named Rusty Bristo.

During the period of time that the officers were searching for the defendant, Angela Jefferson had also called the Shreveport Police Department. Officers responding to Angela Jefferson’s call were informed of her abduction and alleged rape by the defendant.

After speaking with the defendant, the officers at the North Emerald Loop address radioed Detective John Snell who had responded to the call of Angela Jefferson. Detective Snell told the officers at the North Emerald Loop address to arrest the defendant for aggravated rape.

At that point, Officer Watson of the Shreveport Police Department placed the defendant under arrest and informed him of his Miranda rights. Despite being informed of his Miranda rights, the defendant refused to sign the Miranda rights card.

The defendant was then transported to Shreveport Police Department Headquarters and the defendant’s car was seized and towed to Police Headquarters.

On the morning of May 14, 1982 the defendant signed a Consent to Search form concerning his vehicle.

The defendant contends that the trial court erred in denying the Motion to Suppress statements given to the law enforcement officers and the physical evidence obtained from his automobile. Specifically, the defendant contends that at the point he was initially questioned by police officers at the North Emerald Loop address, he was in custody so as to trigger the necessity for Miranda warnings. Next, the defendant contends that statements made to Detective Snell should have been suppressed because they were made after the defendant had refused to sign two Miranda rights cards and that as a result of that illegality, statements made to Detective Prator should likewise be held inadmissible. And finally, the defendant contends that the physical evidence seized from his vehicle should be held inadmissible under the Fourth Amendment to the United States Constitution due to the fact that they are fruits of an illegal arrest without sufficient probable cause.

The defendant contends that under State v. Menne, 380 So.2d 14 (La.1980), the Louisiana Supreme Court found that an officer must give constitutional warnings to a person under investigation whenever the circumstances reasonably indicate that the interrogee has been deprived of his freedom in any significant way. In State v. Thompson, 399 So.2d 1161 (La.1981) the Louisiana Supreme Court enunciated factors relevant to this determination. In Thompson the court held that the determination of whether the detention is significant is to be made objectively from the totality of the circumstances. Factors relevant to the determination include (1) whether the police officer had reasonable cause under La.C.Cr.P. Art. 213(3) to arrest the interrogee without a warrant; (2) the focus of the investigation on the interrogee; (3) the intent of the police officer, determined subjectively, and (4) the belief of the inter-rogee that he was being detained, determined objectively. Whether or not there is a custodial interrogation under federal terminology or a significant detention under Louisiana terminology must be determined on a case by case basis.

In the present case, the officers who initially questioned the defendant only had information that Angela Jefferson had been abducted according to the story told to them by Tommy Gray. Pursuant to the officer’s investigation of Gray’s allegations, the officers located the defendant at the North Emerald Loop address. When the officers initially questioned the defendant, the officers were seeking to identify the defendant and to determine if a crime had in fact been committed. The officers’ questions were investigatory rather than in the nature of an interrogation. Therefore, we find that the initial questioning of the defendant did not constitute a custodial interrogation triggering the necessity for Miranda warnings.

Next, the defendant contends that statements made to Detective Snell should be suppressed because they were made after the defendant had already refused to sign two Miranda rights cards. Miranda warnings had been read to the defendant once at the house by Officer Watson and once at the police station by Detective Wilson. In both of those instances, the defendant refused to sign the card from which his rights had been read to him; however, based upon the testimony of the officers, it is evident that the Miranda warnings had indeed been given.

The defendant contends that the admissibility of statements obtained after a person has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

The determining factor as to the admissibility of a statement is whether it is given freely and voluntarily and not as a result of threats, coercion, or promises. State v. Jennings, 367 So.2d 357 (La.1979). The failure to sign waiver provisions in and of itself is not enough to require suppression of a statement. State v. West, 408 So.2d 1114 (La.1982).

The Supreme Court found in State v. Singleton, 381 So.2d 828 (La.1980) that the police must scrupulously honor any request by an accused to remain silent, but that a refusal to sign a written waiver form of itself cannot amount to such a request. Therefore, it is clear that the refusal of the defendant in the present case to sign the Miranda rights card does not in and of itself indicate that any subsequent statements that were made were involuntary.

Testimony in the present case reflects that the statements given to police officers were given by the defendant freely and voluntarily and not as a result of threats, coercion, or promises. Therefore, the trial court correctly denied suppression of statements made to Detective Snell.

The defendant next contends that statements made to Detective Prator should be held inadmissible due to the illegality of the prior statements. However, we have found that the prior statements were given freely and voluntarily and thus admissible. Additionally, we find that the statements made to Detective Prator were given freely and voluntarily and with knowledge of Miranda warnings.

Next, the defendant contends that the physical evidence taken from his car should be held inadmissible due to the fact that they are the fruits of his illegal arrest without sufficient probable cause.

A warrantless arrest must be based on probable cause, which exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Morvant, 384 So.2d 765 (La.1980).

In the present case, the defendant had been identified by name as the person who had abducted Angela Jefferson: Additionally, the officers observed in the vehicle female clothing which fit the description of what Angela Jefferson had been wearing. Therefore, the facts and circumstances known to the arresting officer were sufficient to justify a person of ordinary caution in the belief that the defendant had committed a crime. Therefore, since the defendant’s arrest was based upon probable cause the search of the defendant’s vehicle did not constitute the fruit of an illegal arrest.

Additionally, the record reflects that the items seized were within the plain view of the officers. The record also reflects that the defendant consented to the search of his vehicle and signed a Consent to Search form.

Having found no merit to the defendant’s contentions, we find that the trial court was correct in denying defendant’s Motion to Suppress.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant contends that his convictions should be reversed because no rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense of sexual battery contrary to LSA-R.S. 14:43.-1.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard annunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard which was adopted by the legislature in an acting La.C.Cr.P. Art. 821 which pertains to post verdict motions for acquittal based on insufficiency of evidence, is that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime had been proved beyond a reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984).

Under LSA-R.S. 14:43.1, sexual battery is defined as follows:

Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender compels the other person to submit by placing the person in fear of receiving bodily harm:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

The defendant contends that the fact that the jury found the defendant guilty of the last remaining responsive verdict indicated that there were serious doubts by the jury whether the state had met its burden of proving its case beyond a reasonable doubt. Defendant contends that these doubts are buttressed by an examination of the inconsistencies in and contradictions of the testimony of Angela Jefferson, the inconclusive scientific and physical evidence and Angela Jefferson’s reputation in the community for telling the truth.

The evidence of sexual battery in the present case is largely circumstantial. A brief review of the facts reflect that Angela Jefferson was abducted by gunpoint at the intersection of 70th Street and Thorn-hill. Thomas Gray identified the defendant as the man who had abducted Angela Jefferson.

Angela Jefferson testified at trial that the defendant took her to a field, tore the clothes off of her body, and then raped her. Angela further testified that she managed the escape and ran to a nearby home wearing only one white sock. In the course of the investigation by the Shreveport Police Department, another white sock was found in the field where Angela testified that she was raped. Additionally, Angela Jefferson’s clothes were found in the defendant’s vehicle. Michael Beason, a physician at the LSU Medical Center, conducted a rape ex-animation of the defendant in the early morning hours of May 14, 1982. Dr. Bea-son testified that Angela Jefferson was emotionally anxious and upset which made it difficult to examine her pelvic area. Dr. Beason stated that he did not find any sperm during the course of his examination and also that there were no signs of any physical trauma.

Pat Wojtkiewicz of the North Louisiana Crime Lab, found sperm and seminal acid phosphate in the vaginal wash that was taken from the victim. Wojtkiewicz testified that it was his opinion that Angela had had sex with someone within 72 hours of the taking of the sample. However, due to the fact that he had a very low level of seminal fluid to test, he could not tell whether or not the defendant was responsible for the presence of the sperm and seminal acid phosphate in the sample.

Although the medical testimony did not establish that a rape actually had occurred, we find that a rational jury could have found that some form of sexual activity did take place. The jury was in the better position to determine the credibility of Angela Jefferson’s testimony.

In view of the uncontradicted evidence of what happened both before and after the alleged sexual activity, we find that a rational trier of fact could have concluded that the state had proven the offense of sexual battery beyond a reasonable doubt.

Therefore, we find this assignment of error to be without merit.

DECREE

Finding no merit to defendant’s assignments of error, the defendant’s conviction and sentence is affirmed.

AFFIRMED.


author: PRICE, Judge Pro Tern.

text:
    STATE of Louisiana, Appellee, v. Eddie Lee COOK, Appellant.
    No. 16320-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      D. Milton Moore, III, Brown, Wicker, & Amman, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny Parker-son, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appellee.
    Before SEXTON and NORRIS, JJ., and PRICE, J. Pro Tern.
   PRICE, Judge Pro Tern.

The defendant, Eddie Lee Cook, appeals his conviction of one count of Distribution of Marijuana, contrary to LSA-R.S. 40:966 A; and two counts of Possession of Marijuana, contrary to the provisions of LSA-R.S. 40:966 D. The trial court sentenced the defendant on the Distribution of Marijuana conviction to six years at hard labor to run consecutively with the defendant’s prior conviction for which he was on probation. On the two counts of Possession of Marijuana the trial court sentenced the defendant to six months in jail on each count to run consecutively with each other but to run concurrently with the sentence imposed on the first count. In addition to the appeal of his conviction, the defendant appeals the forfeiture of his vehicle under LSA-R.S. 32:1550.

FACTS:

The record reflects that the defendant was the target of an investigation launched by the Metro Narcotics Unit of the Ouachi-ta Parish Sheriff’s Office. Pursuant to that investigation, Sargeant Royce Toney arranged to have a confidential informant introduce an undercover officer, Deputy Richard Medaries, to the defendant.

After meeting the defendant on several different occasions, the undercover officer contacted the defendant at his home at 1982 Joe G. Street in Monroe, Louisiana on January 15, 1982. At that time the undercover officer spoke with the defendant about the possibility of selling him guns and about the possibility of purchasing marijuana from the defendant. Medaries stated that the defendant indicated to him that he did not know Medaries well enough to sell him marijuana. However, after they spoke for a while concerning the guns and the marijuana, the defendant indicated that if Medaries left and came back in half an hour he might have made some arrangements enabling Medaries to obtain some marijuana.

Medaries testified that he then went to the Ramada Inn in Monroe and met with Sargeant Royce Toney and informed him of what had happened. Medaries then returned to the defendant’s residence half an hour later.

Defendant informed Medaries that he was able to find someone and that Medar-ies could get some marijuana by driving one block down the street from defendant’s house where a black male in a grey shirt and grey pants would be standing on the corner. The defendant informed Medaries that when he stopped at the corner that the black male would have the marijuana for him.

Medaries then drove his vehicle to the stop sign and a black male wearing a grey jogging suit stepped off the curb and walked to the window of his car. Medaries observed the man pull out a plastic bag which he believed to be marijuana at which time Medaries handed the man $25.00. After the transaction, the man stated, “nice doing business with you,” and then the man walked off. Medaries then returned to the Ramada Inn where he turned the suspected marijuana that he had purchased over to Sergeant Toney.

On January 20,1982, Medaries again contacted the defendant at his residence in Monroe. Medaries told the defendant that he would like to trade four cases of liquor for two bags of marijuana. The defendant informed Medaries that he had some friends that were interested in the guns that Medaries had to sell and that he might possibly be able to get marijuana for the guns, but that he was not sure about the liquor. Medaries and the defendant then went to the defendant’s vehicle which was parked in the parking lot next to the defendant’s apartment and they sat in the front seat. At that point the defendant produced a small coin envelope and a rolling paper and rolled marijuana cigarettes which he lit up and smoked with Medaries. Medaries testified at the forfeiture hearing, held before the trial, that he had offered, and the defendant had accepted a bottle of amaretto for the marijuana cigarette. However, at trial Medaries was not certain that he had offered the amaretto for the cigarette. Regardless, Medaries testified that he and the defendant sat in the car and smoked until a yellow Opel arrived with three black males. At that time, he and the defendant got out of the vehicle and spoke with one of the black males.

After the conclusion of his conversation with the occupants of the yellow Opel, the defendant told Medaries that they wanted to inspect the liquor and suggested that they drive down the street to an isolated parking area. Medaries drove to the parking lot, the defendant and the other black male walked through the parking lot to the car, Medaries opened the trunk of his car and the black male examined the liquor. Medaries told the man that he wanted two bags of marijuana for the liquor.

After the man inspected the liquor, Me-daries drove back to the defendant’s residence while the defendant and the other man walked back. On their return the man walked over to Medaries car and stood next to it on the passenger side. Medaries testified that as he was reentering the driver’s side of his car, two bags of marijuana were placed on the seat through the front passenger door. Medaries did not see who had placed the marijuana on the front seat of his car. At that point Medaries, the defendant, and the other man took the cases of liquor out of Medaries’ trunk and placed them in the defendant’s car. As they were placing the liquor into the defendant’s car, Medaries was granted permission to keep the unused portion of the marijuana cigarette that was in the ashtray of the defendant’s car. Medaries then left the scene and proceeded to where Sergeant Toney was located and turned the evidence over to him.

On March 9, 1982, Medaries again went to the defendant’s residence with two cases of liquor in an attempt to trade them for marijuana. The defendant informed Me-daries that he did not have marijuana there; however, he would take the liquor and keep it and that Medaries could come back at a later date and see if he had gotten any marijuana. Prior to leaving the defendant’s residence, the defendant gave Medaries one marijuana cigarette. After leaving the defendant’s residence, Medaries turned the evidence over to Sergeant Don McClanahahn of the Monroe Police Department who was assigned to the Metro Narcotics Unit.

Ann Armstrong, employee of the North Louisiana Crime Lab located in West Monroe, Louisiana, testified that the vegetable material received by Medaries from the defendant was found to be marijuana.

On April 19, 1982, defendant was charged by bill of information with three counts of distribution of marijuana LSA-R.S. 40:966. The jury found the defendant guilty as charged on the first count which occurred on January 15, 1982. However, the jury found the defendant guilty of the lesser included offense of possession of marijuana on the two remaining counts which occurred on January 20, 1982 and March 9, 1982. It is on these convictions from which the defendant appeals.

The defendant originally filed nine assignments of error. Defendant has not argued or briefed assignments 2, 4, and 7. Therefore, assignments 2, 4, and 7 are deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974). Assignments of error briefed by the defendant are as follows:

1. The Trial Court erred in overruling defendant’s Motion to Release Siezed Property and in ordering the forfeiture of defendant’s vehicle at the hearing held on October 14, 1982.
3. The Trial Court erred in overruling and denying the defendant’s Motion for New Trial on his conviction of count one (1) of the three counts Bill of Information. Specifically, defendant shows that the verdict on count one (1) of the Bill of Information was contrary to the law and evidence in that evidence adduced at trial was wholly insufficient to find defendant guilty beyond a. reasonable doubt of the offense of distribution of marijuana as the jury found in count one (1) of the three count Bill of Information.
5. The Trial Court erred in imposing a sentence which was cruel and excessive based on the minimal participation of the defendant in the felony offense for which he was found guilty, under count one (1) of the three count bill of information.
6. The Trial Court erred in imposing a sentence upon the defendant for count one (1), distribution of marijuana that was excessive on its face (six years) and was grossly excessive in light of the admitted participation by agents of the State of Louisiana and the scheme which culminated the defendant’s arrest for distribution of marijuana charges.
8. The Trial Court erred in imposing a sentence upon the defendant for his conviction of count one (1) of the bill of information which was grossly disproportionate to other sentences imposed by the trial judge for other and more serious drug offenses. Specifically, defendant shows that his sentence was grossly excessive and disproportionate under the facts of his case, and shown at trial hereof, in comparison with the fact, disposition and ultímate sentence by his Honor, Judge John R. Harrison, under the ease of State of Louisiana v. Richard O’Keefe, 401, 647 on the docket of the Fourth Judicial District Court, in and for Ouachita Parish, Louisiana, which case involved a registered pharmacist pleading guilty to two felony drug charges after having six additional felony charges dismissed, and the trial judge’s ultimate disposition of said defendant, O’Keefe, to a suspended prison sentence and a minimal fine. Said O’Keefe case involved the distribution of schedule II, III, and IV controlled dangerous substances, whereas defendant’s conviction under counts one (1) of Bill of Information involved the defendant making a telephone call at the request and insistence of an agent of the state of Louisiana unto a third party, who ultimately produced, distributed and sold a one ounce bag of marijuana unto the said agent for the state of Louisiana.
9. The Trial Court erred in refusing to grant defendant’s post verdict motion for acquittal and/or defendant’s Motion for a New Trial, on the basis that said defendant had made out and proven a valid defense of entrapment under the laws of the State of Louisiana.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant appeals, as part of his criminal conviction, a judgment of forfeiture in which the defendant’s 1969 Cadillac was seized. While the forfeiture is based upon events pertaining to the defendant’s conviction, the forfeiture is not a proceeding relevant to or dependent upon the defendant's conviction. Therefore, it appears that the defendant has improperly appealed the forfeiture as part of his criminal conviction.

A forfeiture is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law. The forfeiture is clearly a penalty for the criminal offense and can result in an even greater punishment than the prosecution. State v. Manuel, 426 So.2d 140 (La.1983).

The forfeiture statute, LSA-R.S. 32:1550, provides no mechanism for judicial review. However, as the Louisiana Supreme Court noted in State v. Manuel, supra, no person may be subjected to forfeiture of property without the right of judicial review based on a complete record of all evidence upon which the judgment is based. La.Const. Art. I, Sect. 19 (1974). Where no procedure is specifically prescribed by statute, the court may proceed in a manner consistent with the spirit of the provisions of the constitution and the law. La.C.Cr.P. Art. 3; State v. Manuel, supra.

Under LSA-C.Cr.P. Art. 912.1 B, a defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury, excepting cases in which a sentence of death actually has been imposed. This court has previously determined that in a forfeiture proceeding a defendant has no right to a jury trial. State v. Bradley, 446 So.2d 803 (La.App. 2d Cir.1984). Therefore, since a forfeiture proceeding is not triable by jury, defendant has no right of appeal under LSA-C.Cr.P. Art. 912.1 B.

However, under LSA-C.Cr.P. Art. 912.1 C defendant has the right of judicial review by application to the court of appeal for a writ of review. In the present case, the record contains all evidence upon which the judgment of forfeiture was based. Therefore, we will consider this assignment of error as an application for a writ of review.

Pursuant to LSA-R.S. 32:1550 the state filed a petition for seizure and forfeiture on March 15, 1982 alleging that on January 20, 1982 defendant’s vehicle was used to facilitate the transport of and to transport, sell, receive, possess, manufacture, compound, dispense, distribute, and conceal contraband to wit: marijuana. Subsequent to the petition for forfeiture, the state charged the defendant in count two of the bill of information with willfully, unlawfully, knowingly, and intentionally distributing marijuana on or about January 20, 1982, contrary to provisions of LSA-R.S. 40:966.

The defendant then filed a motion to release the seized property. In response to defendant’s motion, the state instituted a forfeiture hearing prior to defendant’s trial. At the conclusion of the hearing, the trial court ordered the defendant’s vehicle forfeited.

In State v. Manuel, supra, the Louisiana Supreme Court determined that the procedures for forfeiture require the district attorney to prove beyond a reasonable doubt in a hearing instituted by him that: (1) valid grounds exist for forfeiture of the property under the statute which do not conflict with the constitution; (2) the seizure was in conformity with the constitution and the law or was made upon reasonable grounds to believe that it so conformed; (3) the owner of the conveyance was knowingly and intentionally a consenting party or privy to a violation of the controlled dangerous substance statute, and (4) the value of the contraband was in excess of $500.00 or the contraband was intended for commercial sales.

Additionally, the Supreme Court in Manuel has construed the forfeiture statute to provide that any movable property, including an automobile, which is used as an immediate instrument of a crime under the controlled dangerous substance statute is contraband subject to seizure and forfeiture, subject to five exceptions. Relevant to the present case, an article of property may not be forfeited unless it was an immediate instrument of a crime involving contraband in excess of five hundred dollars in value or contraband intended for commercial sale. State v. Manuel, supra.

In the present case, the defendant was charged with distribution of marijuana; however, the jury found the defendant guilty of the lesser included offense of possession of marijuana.

Deputy Richard Medaries, the undercover officer involved in the investigation, testified at the forfeiture hearing that on January 20, 1982, he went to the defendant’s residence for the purpose of exchanging four cases of liquor for marijuana. Defendant indicated to Medaries that he did not have any marijuana to give him but knew some people who might exchange marijuana for the liquor. Medaries testified that he then showed the defendant the liquor in the trunk and that the defendant offered to exchange a marijuana cigarette for a bottle of amaretto. Medaries stated that he gave the bottle of amaretto to the defendant and that the defendant went into his residence and returned with a brown coin envelope. Medaries stated that he and the defendant then sat in the defendant’s vehicle parked in the parking lot in front of defendant’s residence, rolled a marijuana cigarette, and smoked it passing it back and forth.

After smoking the marijuana, three black males drove up in a yellow Opel. After speaking with one of the black males concerning trading the liquor for two bags of marijuana, Medaries returned to his car to find two bags of marijuana lying on the front seat. Medaries could not identify who had placed the marijuana in his car. At the preliminary examination, Medaries testified that the liquor was then placed in the vehicle driven by the other three black males. However, at trial Medaries testified that he was incorrect and that they had placed the liquor into the trunk of the defendant’s vehicle.

At the trial Medaries testified that he was not certain, but he believed that he had asked the defendant for a joint in return for the bottle of amaretto.

We find that the state has failed to prove beyond a reasonable doubt grounds for the forfeiture. We find that the state has failed to show that the vehicle was used as an immediate instrument of the crime under LSA-R.S. 32:1550. The evidence in the present case does not indicate that marijuana was being stored, concealed, or distributed in the vehicle. In fact, the circumstances seem to indicate that the defendant went into his residence to obtain the marijuana cigarette. The only connection between the vehicle and the crime in the present ease is that the defendant and the undercover officer smoked the marijuana cigarette while merely sitting in the defendant’s vehicle. We find that this fact standing alone is insufficient to hold that the smoking of a marijuana cigarette in a vehicle causes the vehicle to become an immediate instrument of the crime of possession of marijuana.

Therefore, the defendant’s writ is granted and made peremptory. The judgment of forfeiture is hereby reversed and the defendant’s vehicle is ordered returned to his possession forthwith.

ASSIGNMENTS OF ERROR NOS. 3 AND 9

By these assignments the defendant asserts that the trial court erred in overruling and denying defendant’s motion for a new trial and in refusing defendant’s motion for post verdict judgment of acquittal in his conviction of count one, distribution of marijuana. Defendant contends that there was insufficient evidence to find him guilty of distribution and even with a finding that there was sufficient evidence of distribution, the defendant contends that he should have been acquitted on the basis of his defense of entrapment.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard which was adopted by the legislature in enacting LSA-C.Cr.P. Art. 821, which pertains to post verdict motions for acquittal based on insufficiency of evidence, is that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984).

The record in the present case indicates that on January 15, 1982 an undercover officer for the Metro Narcotics Unit, Deputy Medaries, was told by the defendant to drive one block from his residence to a street corner where a black male would be waiting. Defendant told Medaries to hand the man the money and the man would then hand him a bag of marijuana. Medar-ies testified that he followed the defendant’s instructions, drove to the corner where the man was standing, and in fact completed the transaction.

Under LSA-R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. In the present case, we find that a rational trier of fact could have found that the defendant did aid and abet in the commission of the crime of distribution of marijuana. The instructions given by the defendant to the undercover officer would constitute aiding and abetting in the commission of the offense. Therefore, there was sufficient evidence to prove defendant’s guilt beyond a reasonable doubt.

Despite the sufficient evidence to support the conviction, defendant contends that he had proven the affirmative defense of entrapment.

An entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of the commission of an offense solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. State v. Batiste, 363 So.2d 639 (La.1978). When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. State v. Batiste, supra. For entrapment to exist, a defendant must be induced in some way to engage in criminal conduct which he otherwise would not be disposed to engage in. An entrapment defense will not lie if the officers or agents have merely furnished a defendant who is predisposed to commit the crime the opportunities to do so. State v. Moody, 393 So.2d 1212 (La.1981).

In order to determine the appropriate standard of appellate review it is necessary to ascertain whether the state or the defendant carries the burden of proof when the affirmative defense of entrapment is raised.

The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt. In In re Winship 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); LSA-R.S. 15:271. However, the elements of the affirmative defense of entrapment do not constitute or contradict any of the elements of the crime of distribution of marijuana.

In federal court, in the Fifth Circuit, in order to raise the defense of entrapment, the defendant has the initial obligation of coming forward with evidence of government involvement and inducement. United States v. Wolffs, 594 F.2d 77 (5th Cir., 1979). However, the ultimate burden of proof, “the risk of nonpersuasion”, is always on the government. United States v. Tate, 554 F.2d 1341 (5th Cir., 1977). Despite the current status of federal law, the Proposed Federal Criminal Code § 702 defines entrapment as an affirmative defense. As an affirmative defense, entrapment, under § 103 of the Proposed Federal Criminal Code must be established by the defendant by a preponderance of the evidence. Final Report of the National Commission on Reform of Federal Criminal Laws, Proposed Federal Criminal Codes § 702 (1971).

In Louisiana, LSA-C.Cr.P. Art. 652 codified the longstanding requirement that a defendant has the burden of establishing the affirmative defense of insanity by a preponderance of the evidence. Prior to the enactment of Art. 652, the Louisiana Supreme Court had long ago held that the defendant had the burden of proof by preponderance of the evidence on the issue of insanity. State v. Scott, 49 La.Ann. 253, 21 So. 271 (1897); State v. Stewart, 238 La. 1036, 117 So.2d 583 (1960).

In State v. Freeman, 427 So.2d 1161 (La.1983) the state and the defense argued that the standard of appellate review on appeal is whether a rational fact finder, viewing the evidence most favorable to the prosecution, could have concluded that the defendant failed to prove by preponderance of the evidence, that she acted in self defense. This assertion was based upon language used in State v. Landry, 381 So.2d 462 (La.1980) which held that in a nonhomi-cide case the affirmative defense of self defense need be established only by a preponderance of the evidence, not beyond a reasonable doubt as is incumbent upon the state to prove defendant’s guilt. However, the majority of the court found that they need not resolve the issue of who bears the burden in the case because irrespective of who bears the burden, the record showed that the defendant did not act in self-defense.

In concurring opinions in State v. Freeman, supra, Justices Lemmon and Marcus stated that the prosecution’s burden was to prove beyond a reasonable doubt that the defendant committed each element of the offense charged. In order to overcome the prosecution’s proof the defendant had the burden to establish by a preponderance of the evidence that she acted on the basis of a reasonable belief that her use of force or violence was both reasonable and apparently necessary to prevent a forcible offense against her person. Justice Lemmon found that this approach does not have the affect of shifting the burden of proof to the defendant to disprove any elements of the offense. Rather, this approach construed the provisions of LSA-R.S. 14:19 as an “affirmative defense to be established by the defendant.”

In view of the Louisiana Supreme Court holdings concerning the affirmative defense of insanity and its discussion of the affirmative defense of self-defense, by analogy we find that the defendant has the burden of production of evidence in support of his defense of entrapment and, having done so, he has the burden of persuading the trier of fact of the existence of facts constituting the defense by a preponderance of the evidence. See also Lafave and Scott, Handbook on Criminal Law, § 48, Note 28 (1972 edition); Model Penal Code, § 2.13(2).

In State v. Roy, 395 So.2d 664 (La.1981) the Louisiana Supreme Court adopted the Jackson v. Virginia standard of review when a defendant pleads the affirmative defense of insanity and claims that the record evidence shows that he had proven his affirmative defense of insanity by a preponderance of the evidence. Therefore, by analogy we find that a review of the defendant’s contention that he had proven the defense of entrapment must be reviewed under the Jackson v. Virginia standard.

The relevant inquiry by the reviewing court is whether the defendant adduced evidence of his entrapment in the offense such that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that defendant had not proved by a preponderance of the evidence that he was entrapped.

Applying this standard to the present case, we find the trier of fact could have found that the defense of entrapment was not established. The jury could have found that Officer Medaries merely furnished the opportunity for the defendant to become involved in the offense charged. The record reflects that on numerous occasions the defendant conveyed his knowledge of where drugs could be obtained to Officer Medaries. Additionally, the defendant had a prior distribution offense conviction. While the evidence does reflect that Officer Medaries did solicit marijuana purchases from the defendant on numerous occasions, we find that a rational fact finder could have found that the defendant had the necessary predisposition to commit the crime with which he was charged, and that the undercover officer merely furnished the opportunity for the defendant to commit the crime. Therefore, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6, AND 8

By these assignments, the defendant contends that his sentence of six years at hard labor for his conviction of distribution of marijuana on count one was clearly excessive and disproportionate to other drug cases being handled by the trial court.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Browning, 454 So.2d 1241 (La.App. 2d Cir.1984).

The sentencing guidelines of LSA-C. Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he has adequately considered these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

At the defendant’s sentencing hearing, the trial court found that the defendant was a second felony offender and therefore not eligible for probation. The court found that because the defendant was on probation for a previous distribution conviction whén the offense for which he was being sentenced took place, there was an undue risk that during a period of suspended sentence or probation, the defendant would commit another crime. The court further found that the defendant was in need of correctional treatment or a custodial environment that could best be provided by the defendant’s commitment to an institution. The court found that a lesser sentence would deprecate the seriousness of the crime.

In mitigation of the sentence, the court found that the state did not establish that the defendant was a daily drug user or that he was extensively involved in the drug subculture in the Ouachita Parish area. Additionally, the court considered the fact that the undercover officer solicited the purchases from the defendant on numerous occasions.

The defendant asserts that this court in State v. Turner, 440 So.2d 834 (La.App. 2d Cir.1983) found that the determinative inquiry is whether the sentencing judge committed a manifest abuse of his wide discretion in imposing the sentence on the defendant by according too much weight to the aggravating factors and not enough weight to the mitigating factors.

The maximum possible penalty for distribution of marijuana under LSA-R.S. 40:966 B(2) is imprisonment of not more than ten years at hard labor and a fine of not more than $15,000.00. We find no abuse of the trial court’s discretion in imposing the six year sentence in this case. The record fully reflects that the trial court considered all relevant factors under Art. 894.1 in sentencing. We do not find that the trial court accorded too much weight to the aggravating factors.

Next, defendant asserts that the sentences were constitutionally excessive in violation of Art. 1 Sec. 20 of the Louisiana Constitution. A sentence is constitutionally excessive if a sentence is grossly out of proportion to the severity of the offense or nothing more than a needless or purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Browning, supra. Additionally, it is recognized that a sentence may be both within the statutory limits and violative of the defendant’s constitutional right against excessive punishment. State v. Machon, 410 So.2d 1065 (La.1982).

Review of the record in the present case indicates that the defendant’s sentence is not grossly out of proportion to the severity of the offense nor does there appear to be a needless and purposeless imposition of pain and suffering. Six years at hard labor for an offender who participated in the commercial sale of a controlled dangerous substance is not excessive.

Next, the defendant contends that his sentence was disproportionate to the sentence imposed by the trial court in another similar case. Specifically, defendant refers to a case in which a registered pharmacist plead guilty to two felony drug charges in which the defendant was given a suspended sentence and placed on supervised probation.

The trial court noted in its per curiam that the defendant misrepresented the other case. The trial court noted that said person plead guilty to giving two amphetamine tablets to an undercover police officer on two occasions.

We agree with the trial court in its per curiam and do not find that the sentence in this case is disproportionate to the case cited by the defendant.

These assignments of error are without merit.

DECREE

The defendant’s convictions and sentences are affirmed. A writ of review is granted and made peremptory. The forfeiture judgment is reversed.-

Conviction AFFIRMED.

Forfeiture REVERSED.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Dennis LANE, Hubert Van Buren and Fred Griffin. Appeal of Hubert VAN BUREN.
    No. 16339-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      William D. Dyess, Many, for appellant Hubert Van Burén.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James Lynn Davis, Dist. Atty., Many, Claude R. Sledge, Asst. Dist. Atty., Mansfield, for appellee.
    Before HALL, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, Hubert Van Burén, age 28, was charged by grand jury indictment with sexual battery in violation of LSA-R.S. 14:43.1. The offense of sexual battery carries a maximum imprisonment term of ten years at hard labor. Pursuant to negotiations between the defendant’s appointed attorney and the State of Louisiana, the defendant pled guilty to crime against nature, an offense which carries a maximum five year hard labor term. The defendant received a five year hard labor sentence and appealed. Defendant in brief now claims the trial court failed to articulate sentencing considerations under the obligations of LSA-C.Cr.P. Art. 894.1 and further claims that the sentence actually imposed is excessive. Finding no error on the part of the trial court in articulating sentencing considerations sufficient to support the sentence, and further finding no abuse of discretion in the trial court’s imposition of this five year hard labor sentence, we affirm.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The defendant, along with.two co-defendants, Dennis Lane and Fred Griffin, were prisoners in the DeSoto Parish Jail on the date of this offense. These three men forced themselves upon another prisoner— having anal intercourse with him and forcing him to perform oral intercourse with them. The trial court in sentencing the defendant articulated the heinous nature of this offense. The court also articulated the dual benefits gained by the defendant in the reduction in charge from sexual battery to crime against nature and in the State’s agreement not to charge the defendant as a habitual offender. The pre-sentence investigation shows that the defendant has at least two prior convictions involving moral turpitude. At least one is a felony. The other appears to be a felony, but that is not clear from the pre-sentence. Moreover, the defendant was in jail pending trial on a simple burglary, the arrest for which occurred shortly after his release from a previous burglary sentence.

While this is a maximum penalty for the offense to which the defendant pled guilty, the title of that offense does not adequately describe the defendant’s' actual conduct. Also, the pre-sentence indicates this was not the first occasion this defendant had forced himself on this victim. The Court indicated in sentencing the defendant that the two co-defendants had received identical sentences pursuant to pleas of guilty. The defendant complains in brief of the trial court’s failure to articulate mitigating factors in this defendant’s favor. The brief, however, adverts to no substantial mitigating factor that existed in favor of this defendant which the trial court failed to consider. We find no failure of the trial court to articulate sentencing considerations concerning this defendant. Further, we find no abuse of discretion of the trial court’s imposition of this five year hard labor sentence for this offense. As the trial judge noted, the offense of several inmates sexually attacking a fellow inmate in a prison environment is not only reprehensible to society but is traumatic to the victim as well. There is nothing in the nature of the offense nor the defendant’s background as displayed by the record and presentence investigation to recommend leniency. Accordingly, the defendant’s sentence is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Marshall SUTTON, Appellant.
    No. 16369-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Herman A. Castete, Winnfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Winnfield, for appellee.
    Before HALL, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, Marshall Sutton, is appealing his manslaughter conviction. On January 28, 1983, the defendant was found guilty following a jury trial and was sentenced to serve twelve years at hard labor. Thereafter, the defendant timely'filed this appeal. The defendant’s conviction for manslaughter is reversed and the cause remanded for a new trial because we find merit in the defendant’s first assignment of error. We therefore do not reach the defendant’s other two assignments of error.

This prosecution results from a shooting which occurred on January 2, 1983 at approximately 9:00 p.m. in the parking lot of the 501 Club in Winn Parish. Just prior to the shooting the victim, Clotile Carter was a passenger in a truck being driven by her cousin, Eddie Ray Prudhomme. The defendant was in his own car. The defendant requested that the victim exit her cousin’s car, at which time he apparently pulled out a large caliber pistol and began firing. While the testimony is in conflict on several points, it appears that the defendant was yelling at the victim while in the process of shooting at her because he believed she had given out his private phone number. It also appears that when the firing began the victim and the defendant were on opposite sides of the defendant’s vehicle. The state contended that the defendant was shooting in the direction of the victim when she was shot. The defense asserted that the defendant was firing in the air to get her attention when he was grabbed from behind by a person who had just exited the club and that the fatal shot was fired during the scuffle which ensued.

In Assignment of Error No. 1, in which we find merit, the defendant complains that the trial court erred in overruling the defense objection to the use of part of the defendant’s statement for the purposes of impeaching the defendant’s testimony without introducing the entire statement.

At trial, the defendant took the stand in his own defense and testified that he had initially shot in the air during an argument with the victim. He further stated that after he stopped shooting, a Mr. Williams grabbed him from behind. The defendant stated that during that struggle the gun went off, striking the victim. On cross examination the defendant also testified that he shot in the air twice prior to being grabbed by Williams. The prosecutor then asked the defendant if he had not given a statement on the night of the shooting to Deputy Davies, the investigating officer, to the effect that he had tried to “shoot by her side.” The question was asked in several forms without objection and on each occasion the defendant, in one form or another, stated that he did not know whether he had given such a statement.

Deputy Davies, who had previously testified, was called in rebuttal. After proof of Miranda compliance and the voluntariness of the confession, the prosecutor asked the deputy if the defendant had been asked the question: “Was you aiming at her?” The deputy responded that he had asked this question and that the defendant had answered him. At this time, defense counsel objected to any part of the defendant’s statement being taken out of context “without the rest of if — the explanations given are being introduced to the jury.” The objection was overruled and Deputy Davies subsequently read the following excerpt from the statement:

No, I called myself shooting on the side of her, you know, she was running ... cause when she run I thought she’d meet around the other truck but I was shocked when I ... man, I couldn’t see ... come on, no, I wasn’t aiming at her. Cause what happened ... ain’t hit or ... something ... man, I didn’t want to shoot no woman. Man, not her. No woman, nobody, unless somebody was ... the only way I’d want to shoot somebody is attacking me or, you know, that did me some wrong, attacking me or hurting me or something. That’s the only way I want to shoot anybody other than that ... oh, man, especially a woman, gee whiz.

With respect to the use of a confession or inculpatory statement, LSA-R.S. 15:450 requires:

Every confession, admission, or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.

The landmark decision with respect to this statute is State v. Haynes, 291 So.2d 771 (La.1974). In Haynes, a manslaughter prosecution, the prosecutor questioned the defendant from a statement that he had given the police on the night of the killing. When the prosecutor sought to read excerpts from the statement, the defense objected and requested that the whole statement be read. The trial court overruled the defendant’s objection. The Supreme Court held that, “The deliberate attempt to use an excerpt from, rather than the entirety of the defendant’s prior admission or confession in violation of LSA-R.S. 15:450, is reversible error.” Justice Tate writing for the narrow majority further stated that use of an excerpt rather than the entirety of an admission “is not harmless, aside from its essential unfairness, because it constitutes a substantial violation of a statutory right of the accused.” Haynes, supra, at p. 773.

We are unable to distinguish Haynes from the instant case even though the defendant himself was not being examined at the time of the defense’s request that the entire statement be used — as was the case in Haynes. During the cross examination of the defendant he was not questioned concerning specific excerpts from the statement at issue. Thus, the first questions quoting excerpts from the statement occurred during the rebuttal testimony of Officer Davies, at which point there was a timely objection and request for the entire statement. As we appreciate Haynes, it interprets the mandate of LSA-R.S. 15:450 to be absolute except in situations where other crimes are mentioned in the statement. However, the defendant in this instance sought to take advantage of his statutory right under LSA-R.S. 15:450 to have his confession admitted in its entirety. The trial court’s action in overruling the defense counsel’s objection denied him this right, and as such constitutes reversible error.

For the reasons aforesaid the conviction and sentence of the defendant are reversed and the case is remanded to the trial court.

REVERSED AND REMANDED.

      . In that case the defendant has the option to request that those portions regarding other crimes be excised. See State v. Snedecor, 294 So.2d 207 (La.1974); State v. Green, 443 So.2d 531 (La.1983), unless the "other crimes” are interrelated with the crime for which the defendant is on trial. See State v. Moore, 344 So.2d 973 (La.1977).


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. James E. “Eddie” HANSON, Jr., Appellant.
    No. 16410-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Sanders & Sanders by Martin S. Sanders, Jr., Winnfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Kermit M. Simmons, Asst. Dist. Atty., Winnfield, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

After pleading guilty to simple burglary of a pharmacy and being sentenced to nine years hard labor (LRS 14:62.1), defendant executed this Crosby appeal, contending that the trial court should have sustained his motion to suppress his confession as not being free and voluntary. LRS 15:451-2.

Defendant’s concise argument is that his “statement ..., [made] without question [when he was suffering from narcotic] ... withdrawal symptoms, could [not] be free and voluntary regardless of any promises of relief or threats [made] by the [interrogating] officers, as this hope for relief would seem to be unending and he would take any suggested course of action to relieve his agony.”

In his recorded statement, defendant acknowledged that he had not taken any drugs since about 48 hours before and stated that he had “been in withdrawal since then.” Defendant, however, also said at that time, that

—he understood “completely” the Miranda rights which had been explained to him in detail;
—he elected to give the statement before, rather than after, he ate supper;
—“no one’s forced me” to make a statement.

The officers, who escorted defendant from Marshall, Texas, to Winnfield and who interrogated him in Winnfield, testified that on the afternoon he gave the statement defendant

—appeared “normal;”
—“didn’t indicate ... in any way” that he was having narcotics withdrawal symptoms
—“was coherent, knew where he was, what he was doing ...”
—remembered the face and name of one deputy whom he had not seen for several years;
—was not “fidgeting or moving around;”
—did not act as he had acted before when the deputy suspected defendant was then “on drugs;”
—was less nervous than when he later testified at the motion to suppress hearing; and
—was not promised, threatened, or induced in any way to make the statement.

At the motion to suppress hearing, the trial court heard the witnesses, the defendant, heard the tape of the interrogation in question, and concluded that defendant’s “answers were responsive ... sensible, demonstrated full understanding of the questions, and ... made sense.” The court then mentioned the evidence taken at the hearing, and found that defendant “knowingly, willingly ... voluntarily waived his rights and made a statement ... without threats, promises, duress ...”

The admissibility of a confession is a question for the trial judge and his conclusions as to the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless the conclusions are not supported by the evidence. State v. Narcisse, 426 So.2d 118 (La.1983).

Narcisse had taken 10 Preludin tablets about 48 hours before he confessed his crime to police. He contended that his confession was not voluntary because he had a lapse of memory and no recollection of any confession as a result of taking the Preludin. State witnesses testified to the contrary and the admission of the confession was upheld on the basis above stated. Narcisse, supra, at 126.

In State v. Bouffanie, 364 So.2d 971 (La.1978), defendant was suffering from heroin withdrawal when he was arrested one morning. He was taken to a doctor who gave him a sedative and prescribed a tranquilizer for defendant to take orally every four hours. Later that afternoon and the next day, he confessed his crimes to police. The court mentioned that three medical experts said

“it was possible that he may have been induced by his condition to give a confession that he otherwise would not have made. However, each witness indicated that because of the many variables he could not state that either proposition was more probable than not.” 364 So.2d at p. 974.

Nonetheless, the court concluded:

“Despite conflicts in the testimony, our review of the record reflects that the evidence supports the trial judge’s finding that the State sustained its burden on the issue of voluntariness.” 364 So.2d at p. 974.

The trial court did not err in admitting defendant’s confession against defendant’s complaint that it was not free and voluntary. The record supports the conclusions of the trial court. Bouffanie, supra.

Accordingly, defendant’s conviction is AFFIRMED.