author: COLE, Justice.

text:
    ARROW TRUCKING COMPANY v. CONTINENTAL INSURANCE COMPANY; Phillip R. O’CONNOR, Director of Insurance For the State of Illinois, as Liquidator of Reserve Insurance Company v. CONTINENTAL INSURANCE COMPANY.
    Nos. 83 CA 0696, 83 CA 0697.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Corrine Morrision, New Orleans, for plaintiff-appellee Philip R. O’Conner, Director of Ins. for the State of Ill., as liquidator of Reserve Ins. Co.
    Charles Schutte, Jr., Baton' Rouge, for intervenor-appellee Louisiana Ins. Guar. Ass’n.
    Neil H. Mixon, Baton Rouge, for third party defendant-appellee North American Reinsurance Corp.
    David W. Robinson, Baton Rouge, for defendant-plaintiff in recon. appellee The Continental Ins. Co.
    Horace C. Lane, Baton Rouge, for inter-venor, third party plaintiff-appellant Arrow Trucking Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Justice.

The issue in this case is whether or not an insured has a right of action against a reinsurance company for proceeds due under a policy of reinsurance.

The facts giving rise to this procedurally complicated case are as follows. An automobile accident occurred in 1974 wherein an employee of Arrow Trucking Company, driving a tractor-trailer rig, collided with a pick-up truck driven by Jimmy Este. Este was killed and his passenger, Roy Case, was severely injured. As a result of this accident and the subsequent lawsuits, Arrow was cast in judgment for $800,000 in the Case lawsuit and $260,000 in the Este suit. Arrow’s primary insurer, Continental Insurance Company, paid its policy limits of $100,000 in each case. At the time of this accident Arrow had in effect a policy of “excess insurance” with Reserve Insurance Company in the amount of $2,000,000. After the judgment was rendered, but before it became final, Reserve went into liquidation. Because of Reserve’s insolvency, Arrow had to pay the balance of the judgment — $860,000 plus legal interest and court costs.

Arrow and Reserve’s liquidator, Phillip R. O’Connor, each filed a separate suit against Continental, alleging Continental had acted in bad faith in failing to settle the lawsuits and as a result had exposed Arrow and Reserve to liability for the amounts exceeding the primary insurance coverage. Continental filed a reconventional demand against Reserve, alleging it was Reserve who had failed to settle. Continental alleged further Reserve had a contract of reinsurance with North American Reinsurance Corporation, specifically covering the Arrow policy, and that proceeds from the reinsurance contract had been paid into the liquidator’s general fund.

The two cases against Continental were consolidated for trial. Arrow then intervened in the Reserve versus Continental case and asserted Reserve’s liquidator had no right to recover any funds from Continental in that such a right was Arrow’s alone. Arrow also filed a “third party demand” against North American and the liquidator, claiming Arrow was entitled to the reinsurance proceeds. Other incidental actions, which do not concern us here, were also filed.

North American filed the peremptory exception urging the objections of no right of action and no cause of action and also filed a motion for summary judgment. North American asserted since there was no privity of contract between Arrow and North American, Arrow had no right or cause of action against them. Even assuming a right of action existed, North American contended it had paid the reinsurance proceeds (of $660,000) to the liquidator, as mandated by the terms of the agreement, and there being no genuine issue of material fact, it was entitled to summary judgment as a matter of law. The trial court agreed and granted both the exception and the summary judgment. Arrow then filed this appeal.

Before we address the arguments raised by appellant, we note reinsurance is defined by Black's Law Dictionary, 4th ed., as follows:

“A contract by which an insurer procures a third person to insure him against loss or liability by reason of original insurance. A contract that one insurer makes with another to protect the latter from a risk already assumed. It binds the reinsurer to pay to the rein-sured the whole loss sustained in respect to the subject of the insurance to the extent to which he is reinsured. Also the substitution, with the consent of the insured, of a second insurer for the first, so that the original insurer is released.”

Reinsurance is recognized in this state in La.R.S. 22:941 et seq., wherein it is stated that a “ceding insurer” may, by a reinsurance agreement, cede all or part of its risks to another insurer. La.R.S. 22:941(A). It is a contract between the insurer and the reinsurer only; the insured is usually not aware of its existence. For this reason it is generally recognized that the reinsurer is not liable to the insured (the policy holder) in any way and conversely, that the insured has no right of action against the reinsurer. 46 C.J.S. Insurance § 1220.

On appeal, Arrow contends even though the reinsurance agreement stated that upon Reserve’s insolvency, North American was to pay the proceeds to the liquidator, the agreement also included the proviso, “except as provided by law.” Appellant contends that under the laws of this state, there are two legal theories which afford it a right of action. First, Arrow argues they have a direct action against North American under La.R.S. 22:655. Second, Arrow contends the contract between North American and Reserve contained a “stipulation pour autrui” in its favor, and as such it has a right of action against North American.

Both theories were discussed and rejected in a case similar to the present one. Fontenot v. Marquette Casualty Co., 247 So.2d 572 (La.1971). This is the leading case involving reinsurance and was relied upon by the trial court. Therefore, before we address the two arguments we will set forth the facts of Fontenot, (described by the trial court as practically a “goose case”) and will discuss the similarities and differences between it and the present case.

The Fontenot case involved parties similar to those here: an injured tort victim, an insured, an insolvent insurer and a reinsurer. In Fontenot, the party suing the rein-surer was the injured tort victim; in the present case the plaintiff is the insured. The reinsurance agreements in the two cases differed in several ways. In Fonten-ot the reinsurer assumed all of Marquette’s risks exceeding $10,000 per accident. In the present ease the reinsurer assumed the risk specifically for claims arising from Reserve’s policy covering Arrow. In Fonten-ot the reinsurance treaty provided that upon insolvency of the insurer the reinsurance “... shall be payable by the reinsurer,” without specifying to whom payment was to be made. In the present case the contract states that upon insolvency of Reserve, the reinsurance shall be payable “... directly to the Company or its liquidator ... except as otherwise provided by law.”

Another distinct difference between Fon-tenot and the present case concerns the applicability of La.R.S. 22:941 et seq. Those statutes grant a “domestic insurer” [one formed under the laws of this state— La.R.S. 22:5(3) ] the right to reinsure and, to that extent, do not address directly Reserve, an Illinois company, and its reinsurance agreement with North American. In Fontenot, the insurer, Marquette, was a domestic insurer and thus it was appropriate for the court to consider the applicability of these provisions of our insurance code. Regardless, a careful reading of the reinsurance agreement before us and the scheme of La.R.S. 22:941 et seq. suggests no conflicts but only analogous contractual and statutory considerations.

Concerning the direct action issue in Fontenot, the Supreme Court reversed the Fourth Circuit’s decision and concluded the direct action does not apply to a contract of reinsurance because such a contract is one of indemnity rather than liability insurance. The court noted the distinction between the two, 247 So.2d 572, 576:

“The vital distinction between reinsurance and liability insurance is that reinsurance indemnifies the insurer for a loss which is actually sustained, whereas liability insurance is protection against the liability of an insured.”

The Fontenot court examined the direct action statute (La.R.S. 22:655) and concluded that words such as “tort-feasor,” “omnibus clause,” “injured persons” and “liability policies” indicated the statute was never intended to apply to a contract of reinsurance. The court noted further that La.R.S. 22:943 created the only exception to the general rule that third parties have no right of action against a reinsurer. That statute allows a third party to sue a rein-surer directly when the reinsurer has agreed to “assume and carry out directly with the policyholder any of the policy obligations of the ceding insurer....” (There is no argument in the present case that North American directly assumed Reserve’s obligations under the policy.)

Appellant Arrow argues the significant distinction between the Fontenot case and the present one is that in Fontenot the person attempting the direct action against the reinsurer was a third-party tort victim as opposed to the named insured. We fail to see this as a valid distinction insofar as the direct action statute is concerned. In fact, appellant’s argument becomes rather circuitous, upon further analysis. On the one hand appellant contends it is not a “third-party” to the contract of reinsurance because it was named specifically as an insured and should therefore be treated differently from the plaintiff in the Fon-tenot case. On the other hand appellant argues it is entitled to proceed under the direct action statute which is in fact a statute designed to give a third person (i.e., an injured person who has no privity of contract) a right of action against an insurer. Notwithstanding this semantical problem, we find the distinction as to the “type” of plaintiff to be of no merit. The holding of Fontenot is unequivocal. We quote from 247 So.2d p. 580 of the opinion:

“The direct action statute is not applicable to reinsurance policies where neither a novation of the original policy obligation nor a merger of the companies has occurred. When the direct action statute is read alone, it becomes clear that it could not create a direct right of action for a third party under a reinsurance contract.”

This holding is based upon the court’s decision that the reinsurance contract was not a liability insurance contract and stands without regard to whether the person claiming the right of action is a named insured on a reinsurance certificate or a tort victim.

While we have serious reservations about the correctness of the Fontenot holding, as an intermediate appellate court we are constrained to follow it. We find the dissent by Justice Dixon, (who is the only Justice of the Fontenot court still sitting), to be quite persuasive. He stated the majority’s distinction between an indemnity contract and a contract of liability insurance was merely an “attempted” one. He characterized the contract of reinsurance as one wherein Marquette protected itself against liability for the injury of other persons, therefore meeting the definition of liability insurance as defined by La.R.S. 22:6(4). However, we do not find significant differences between Fontenot and this case. Because the Supreme Court has not as yet reconsidered its position, we reluctantly follow the rationale of Fonten-ot and hold the plaintiff in this case does not have a direct action against the reinsurer under La.R.S. 22:655.

Appellant’s second argument is that it is entitled to proceed against North American because the reinsurance contract contained a stipulation in Arrow’s favor, citing La. Civ.Code art. 1890. Although this argument was rejected in Fontenot, appellant contends the fact that Arrow was named specifically as an insured on the reinsurance agreement makes the eases distinguishable. We agree.

It is well settled a stipulation pour autrui must be in writing and must clearly reveal the contracting parties intended to stipulate some advantage for the third person. Fontenot, supra; Teacher’s Ret. System of La. v. La. State Emp. Ret., 444 So.2d 193 (La.App. 1st Cir.1983). The Fon-tenot court examined the reinsurance agreement and concluded it “... discloses no intention that the reinsurance contract stipulated anything in favor of the insureds of Marquette.” 247 So.2d 572, 579. The court concluded Marquette had sought the reinsurance solely for its own benefit.

The agreement in the present case states North American reinsures Reserve in respect to Reserve’s policy covering Arrow, the named insured. We agree with the Fontenot court a general reinsurance agreement in favor of all of the insured’s risks (exceeding a certain dollar amount), does not show an intent to stipulate a benefit for the insureds. However, the situation is entirely different when the agreement cuts through cumulative liabilities and states clearly it is for the specific purpose of reinsuring a policy covering only one named insured. We can reach no other conclusion but that this reinsurance was obtained for the specific purpose of covering claims which might arise because of Arrow's liability. Indeed, North American’s obligation to pay Reserve was triggered only by one occurrence, i.e., Arrow being found liable for an injury.

The equity of the situation becomes apparent upon close scrutiny. Arrow paid Reserve a substantial premium for the $2,000,000 coverage. Reserve, because of Arrow’s premium payment, was in turn able to at least indirectly use a portion of this premium to cede to North American all but the initial $200,000 of the risk. In effect, Arrow was paying for the coverage from North American. In all fairness Arrow ought to benefit from this protection.

For these reasons we hold in a situation such as the present one, where the reinsurance contract states clearly the reinsurance is being issued to the insured in relation to a specific policy covering a named insured, that insured is a third-party beneficiary of the reinsurance contract and has a right of action against the reinsurer. The judgment of the trial court granting the exceptions and the summary judgment is reversed. Costs are to be paid by appel-lee, North American.

REVERSED.

      . This demand was actually a “cross-claim” (La. Code Civ.P. art. 1071) because a third party demand is asserted not by a plaintiff, such as Arrow, but by a defendant. See La.Code Civ.P. art. 1111.

      . See, Fontenot v. Marquette Casualty Co., 235 So.2d 631 (La.App. 4th Cir.1970).

      . This statute reads in pertinent part as follows: "The injured person or his or her survivors or heirs hereinabove referred to, at 'their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure.”

      . Liability insurance is defined in this statute as follows: "Insurance against the liability of the insured for the death, injury or disability of an employee or other person, and insurance against the liability of the insured for damage to or destruction of another person’s property.”


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dorothy WALL.
    No. 83 KA 1137.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Ralph Brewer, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant was arrested and charged with forgery and felony theft. She was accused of forging a check in the amount of $25,000 payable to an investment company named Rudolf Wolfe and drawn on the account of Power Packing Company of Baton Rouge.

The check in question was made payable to Rudolf Wolfe in order for the investment company to make investments for the benefit of Power Packing. The president of Power Packing had given the check to Carolyn Wall, daughter of the defendant, so that the check would be mailed to Rudolf Wolfe. Carolyn Wall was a secretary at Power Packing and had been employed in that position for approximately ten years.

The defendant presented the check at Capital Bank & Trust in Baton Rouge to be cashed. The branch manager testified that the defendant identified herself as “Marie Wolfe.” She stated that the check was payment for injuries which her husband had received as a result of a work related accident. Rather than taking the entire amount in cash, the manager sought to persuade her to open an account at the bank. Defendant then left the bank under the pretense of asking her husband if he wanted to open an account. The following day she returned and stated that her husband did not trust banks, and therefore, did not wish to open an account.

The bank manager proceeded to insure that the check was valid. He telephoned Power Packing to verify the check. When the manager asked to speak with the president of the company, the woman on the phone who identified herself as Kathy Grant stated that she cut the check and that in fact the check was valid. In reality there was no employee of Power Packing named Kathy Grant. The check was endorsed on the back with the names “Rudolph Wolfe and Marie Wolfe.”

When the President of Power Packing discovered the forgery the bank was notified. Suspicion focused on the employee, Carolyn Wall, who had been given instructions to mail the check. Investigators discovered that the defendant served time for a similar offense. A check of the computer time sheet showed that the person answering the phones at the time when the bank manager spoke to “Kathy Grant” was Carolyn Wall.

Officers at the sheriffs office compiled a photo array and asked the bank manager to attempt to identify the woman who cashed the check. A positive identification of the defendant was made. The officers went to the Power Packing offices to speak with Carolyn Wall. Carolyn Wall made statements inculpating herself and the defendant. The two were charged with one count of forged endorsement and one count of felony theft. The defendant, Dorothy Wall, was convicted as charged on both accounts. In this appeal defendant presents twelve (12) issues for review.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in refusing to grant her motion for discovery on the basis that it was untimely filed. La.Code Crim.Pro. art. 521 states in part that pretrial motions shall be filed within 15 days after arraignment unless a different time is fixed upon a showing of good cause. La.Code Crim.Pro. art. 729 states in part that a motion for discovery may be considered before trial upon a showing that such a motion is in the interest of justice.

Defendant did not give any reasons for the failure to timely file the motion for discovery, nor was any showing of good cause made to allow additional time to file. Also, defendant gave no showing that the granting of the motion for discovery would be in the interest of justice. Absent compliance with Art. 521 and Art. 729 the trial judge’s actions were correct. State v. Freeman, 409 So.2d 581 (La.1982); State v. Reed, 378 So.2d 923 (La.1979).

Additionally, defendant’s assignment of error is foreclosed due to the fact that the state complied with defendant’s request for discovery a month prior to trial. Therefore, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 5

In assignment of error number two, defendant alleges that the trial court erred by refusing to grant a hearing on defendant’s motion to quash the bill of information. In assignment of error number five, defendant alleges that the trial court erred by-refusing to grant the motion to quash.

Defendant moved to quash the bill of information on the ground that the arrest was made without probable cause. The trial court denied the motion as untimely filed; in addition, it noted that, even if timely filed, the allegations did not entitle defendant to relief sought.

We find no error in the ruling of .the trial court. The motion to quash was not timely filed. La.Code Crim.Pro. art. 521; La.Code Crim.Pro. art. 535. Further, lack of probable cause to arrest is not a ground to quash the bill of information. State v. Smith, 357 So.2d 798 (La.1978). The court did not err by refusing to grant a hearing thereon or in denying defendant’s motion.

ASSIGNMENT OF ERROR NO. 3

In assignment of error number three, defendant asserts the trial court erred in limiting cross-examination of a witness during the hearing on the motion to suppress.

At the hearing on defendant’s motion to suppress the statements made by her daughter, R.D. King, the Security officer of Capital Bank & Trust Co. revealed that he had been employed by the Orlando Police Department several years previously. Defense counsel then asked Mr. King how long he had been a police officer. The state objected to the question on the ground of relevancy, and the trial court sustained the objection.

Relevant evidence is generally defined as that evidence tending to show the commission of the offense and the intent or tending to negative the commission of the offense and the intent. La.R.S. 15:441. The relevancy of evidence must be determined by the purpose for which it is offered. La.R.S. 15:442. The trial court has wide discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear showing of abuse. State v. West, 419 So.2d 868 (La.1982).

Defendant argues that his question was relevant to show bias, prejudice and hostility toward defendant. We disagree. None of the prior testimony by the witness gave the slightest indication of bias, prejudice or hostility. We do not believe his credibility would have been impeached by further questioning along this line. We find no error in the trial court’s ruling.

ASSIGNMENT OF ERROR NO. 4

Defendant argues that the trial court erred by not suppressing the confession of Carolyn Wall.

Without deciding the issue of whether or not defendant had standing to request suppression of her daughter’s confession, we feel that this assignment of error is without merit. The defendant and her daughter were tried separately in accordance with La.Code Crim.Pro. art. 495.1. Further, the confession of Carolyn Wall was not entered into evidence during the trial, thereby, rendering any argument in favor of suppression moot. State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NO. 6

In this assignment defendant contends that the trial court erred by permitting hearsay testimony to be introduced, thereby severely damaging defendant’s case.

The testimony objected to was related by Paul Vilmarette, the branch manager of Capital Bank, who spoke to the woman who claimed to be “Marie Wolfe,” the endorser of the check who received the funds, and who was subsequently identified by this witness as the defendant. The court over-ruled defendant’s objection to this testimony, noting that it was a part of the res gestae, and therefore admissible. We agree.

The res gestae is comprised of the circumstances and declarations which are necessary incidents of the criminal act; immediate concomitants of it, or form with it one continuous transaction. La.R.S. 15:448. What forms any part of the res gestae is always admissible into evidence. La.R.S. 15:447.

In State v. Sharp, 414 So.2d 752, 754 (La.1982), the Louisiana Supreme Court stated:

“In Louisiana, the res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of a crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime, provided the requirements for the introduction of such evidence have been met. R.S. 15:447, State v. Kimble, 407 So.2d 693 (La.1981); State v. Molinario, 383 So.2d 345 (La. 1980), cert. den. 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106; appeal after remand 400 So.2d 596 (La.1981). In order to qualify as part of the res gestae, the circumstances and declarations must be necessary incidents of the criminal act or immediate concomitants of it, or form in conjunction with it one continuous transaction. R.S. 15:448. Therefore, a very close connexity is required between the charged offense and the evidence of other crimes. State v. Haarala, 398 So.2d 1093 (La.1981). State v. Lawson, 393 So.2d 1260 (La.1981). This close connexity in time and location is essential to the exception because no notice is required by the state of its intention to introduce evidence which forms part of the res gestae. R.S. 15:447; C.Cr.P. 768, State v. Haarala, supra. State v. Brown, 352 So.2d 690 (La.1977).”

In the present case, it is clear that the evidence was properly admitted under the res gestae doctrine.

The fabricated tale related by defendant which induced the bank officer to cash the check was necessarily a part of the criminal transaction. The res gestae included the conversation with “Kathy Grant” at Power Packing because the verification of the check was an important part of the forgery scheme. We find no error in the ruling of the trial court.

ASSIGNMENTS OF ERROR NOS. 7 AND 9

In these assignments, defendant argues that the trial court erred in permitting Mr. Vilmarette to narrate the chain of events, including the testimony of “Marie Wolf,” which led to the cashing of the check. She also argues error in the ruling of the trial court requiring defense counsel to object each time he felt the witness testified improperly, rather than making a general objection to the style of the testimony.

The trial court is vested with sound discretion with regard to the control of examination of a witness, La.R.S. 15:275, including the issue of narrative testimony. State v. Peters, 302 So.2d 888 (La.1974); cert. den. 423 U.S. 878, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975); La.R.S. 15:275. Control over the examination of a witness is within the sound discretion of the trial judge, and a ruling thereon will not be disturbed absent a showing of abuse of discretion. State v. Carter, 363 So.2d 893 (La.1978). We find no showing of abuse herein.

ASSIGNMENTS OF ERROR NOS. 8 AND 10

In these assignments of error, defendant argues that the trial court erred in failing to restrict conduct by the prosecu-trix, specifically by permitting her to argue the merit of the case during trial and to nod her head during testimony of a state witness.

During the testimony of a witness, defendant objected to the method by which he narrated his testimony. The prosecutrix stated: “Judge, I asked for the nature of the conversation. Of course, he has the right to repeat it. If counsel finds it damaging to his client. I am sorry.”

Defendant argues that the prosecutrix was arguing the merits of the testimony to the jury. Defendant also objected during cross-examination of a witness that the prosecutrix was nodding her head suggesting answers to the witness.

The proper remedy for defendant to request would have been an admonition to the jury, or mistrial. La.Code Crim.Pro. 771, 775. Defendant failed to request either of these remedies at trial, therefore, she effectively waived the right to do so after trial. State v. White, 430 So.2d 174 (La.App. 2d Cir.1983); State v. Mitchell, 412 So.2d 547 (La.1982); State v. Bolton, 408 So.2d 250 (La.1981).

ASSIGNMENT OF ERROR NO. 11

In this assignment defendant asserts that the trial court erred in disallowing her to cross-examine Marshall Perry Vase. Defendant questioned Marshall Perry Vase, the general manager of Power Packing Company, about the investment relationship between Power Packing and the Rudolf Wolfe Investment Company. The state objected to the questions on the ground that they were irrelevant, and the court sustained the objection. Defense counsel argued that information about the relationship between Power Packing and the investment company, and whether the company ever received the funds, was relevant to determine whether a theft had actually occurred. Two officers from Capital Bank had already testified that the bank sustained a loss of $25,000. Since neither Power Packing nor Rudolph Wolfe were the victims of the loss, the investment relationship was irrelevant. The trial court correctly sustained the state’s objections.

ASSIGNMENT OF ERROR NO. 12

Defendant argues that the state failed to prove every element of the offense charged and that the jury verdict is unsupported by the evidence.

We find the record supports the conviction on both counts when viewed in the light most favorable to the state. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Witnesses who worked at the bank testified that the defendant presented the check with the false endorsement of “Rudolf Wolfe and Marie Wolfe.” The first time the check was presented for payment there only appeared the endorsement of “Rudolf Wolfe.” When it was presented the following day the witness saw.defendant add the endorsement of “Marie Wolfe.”

The check for $25,000 was not intended for an individual, but for a company. The president of Power Packing testified that the check was not intended to be, nor was authorized to be paid to any party other than the investment company. The two bank officers who testified stated that the bank absorbed the $25,000 loss.

We find the record amply supports the conviction.

Therefore, the conviction and sentence are affirmed.

AFFIRMED.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Hampton GALLOW.
    No. 83 KA 1264.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 20, 1984.

      Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Asst. Public Defender, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Hampton Gallow, was charged with possession of Pentazocine on August 11, 1982, in violation of La.R.S. 40:967(C). Defendant pled not guilty, and after a bench trial was found guilty as charged. He was sentenced to three years in the East Baton Rouge Parish Prison, with credit for time served on the charge. The sentence was to run concurrent with an eighteen-month sentence defendant was serving at the time. Defendant appeals his conviction and sentence, alleging eight assignments of error. Two assignments of error were not briefed, and therefore, are considered abandoned. Rule 2-12.4, Uniform Rules-Courts of Appeal, State of Louisiana; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983). The remaining assignments of error are as follows:

1. The trial court erred when it overruled defense objection that the prosecutor’s question was irrelevant.
2. The trial court erred when it denied defense motion to suppress.
3. The trial court erred when it overruled defense objection to the introduction of testimony.
4. The trial court erred when it overruled defense objection to the introduction of evidence.
5. The trial court erred when it denied defense motion for directed verdict of acquittal.
6. The trial court erred when it rendered a verdict contrary to law and/or evidence.

FACTS

On August 11, 1982, at approximately 11:00 p.m., two police officers were patrolling Scenic Highway in Baton Rouge. As they passed a lighted car wash, they observed an occupied car in one of the stalls. No one was washing the car nor was there any water around to indicate the car had just been washed. The officers doubled back and, as they pulled into the area, the car began to pull out. The police unit stopped the car. At that point, the driver and one passenger hurriedly left their car and walked to the police unit. One police officer checked the vehicle and saw defendant sitting in the back seat holding a quart of beer and a cup of water. On the front seat, he saw an orange tablet that he recognized as Pentazocine (Talwin) and a bottle cap containing a crushed blue pill. The officer made defendant leave the car, and the three men were arrested and given Miranda warnings. Marijuana was found in defendant’s pocket. In addition, a revolver and two hypodermic syringes were found under the front seat of the car. A paper towel containing blood was found in the back seat of the car. Lab tests confirmed the tablet seized was Pentazocine. All three men were charged with possession of Pentazocine, tried and found guilty.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred when it overruled his objection to an irrelevant question. At the motion to suppress hearing, on direct examination of one of the arresting officers, the prosecutor asked, “Did you find any indication that the subjects had already injected contraband?” Defense counsel objected and argues that this question was irrelevant to the issue of whether a legal stop occurred.

The issue to be decided at the motion to suppress hearing was whether certain items which were seized could be admitted into evidence at trial. To decide this issue, the trial judge had to determine if the initial stop was legal and whether the subsequent search of the car and seizure of items was valid.

The evidence must be relevant to a material issue to be admissible. La.R.S. 15:435. Facts necessary to explain a relevant fact, or which support an inference raised by such fact, are admissible. La. R.S. 15:441. The trial court has great discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of discretion. State v. Easley, 432 So.2d 910 (La. App. 1st Cir.1983).

There were several items of evidence, including a paper towel and hypodermic syringes, that the state wanted to admit into evidence. The prosecutor indicated his question was about items which were seized. The question was relevant to determine which items were seized and to lay a foundation for admitting those items.

Even if the question and subsequent answer were irrelevant, defendant’s conviction will not be reversed without a showing that substantial rights of defendant were affected. See La.C.Cr.P. art. 921. A judge by virtue of his training in the law is able to disregard irrelevant matters which are possibly prejudicial. State v. Bowman, 434 So.2d 1175 (La.App. 1st Cir.1983).

Defendant does not argue, nor do we find, that substantial rights of the defendant were affected by the questioning. It is difficult to see how they could be when the question was asked via a hearing on a motion to suppress and there is no indication the answer affected the admission of the evidence. We find defendant was not prejudiced and this assignment of error lacks merit.

ASSIGNMENT OP ERROR NUMBER 2

THE STOP

Defendant contends the trial court erred in its denial of the motion to suppress. Defendant contends that the officers did not have the legal right to make the original stop, and consequently any seizure made as a result of a search thereafter must be suppressed. Resolution of this question depends upon the officers’ right to make the initial investigatory stop.

The Louisiana Constitution of 1974, article I, section 5 provides in pertinent part: “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 as well as both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979). Reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, 434 So.2d at 391.

The officers were patrolling in a high crime area and saw a car parked in a lighted car wash near a coin box. Since there was no water on the ground, it did not appear that the car had been washed nor did it appear that any attempt was being made to wash the car. One occupant was leaning down, and all the occupants seemed preoccupied with activity in the car. The officers were aware that thefts had occurred from the coin boxes at that car wash particularly from the end stall. They proceeded past the car wash for a block or so, then turned around and came back to the lot where the car wash was located and approached the car in the car wash from the rear. The vehicle still had not left nor had the occupants begun washing the car. When the officers approached, the car pulled out, spinning but not squealing its wheels. The stop was then made. Under these facts there clearly was reasonable cause for the investigatory stop.

THE SEARCH

When the vehicle stopped, two men, the co-defendants, jumped out and hurriedly walked to the rear of the car. The officers met them and made them put their hands on top of the police car. One officer went up to the vehicle and observed defendant seated in the back seat of the car holding a beer and a cup of water. On the front seat he saw a tablet, which he believed to be Talwin. Subsequent lab reports confirmed this belief. He also saw a bottle cap containing a crushed blue pill. At that point defendant and the co-defendants were arrested and advised of their rights.

The officer’s actions in checking the car were also proper. Although it is not clear from the record that he knew another person was in the car, it certainly was prudent for the officer to check.

Investigative stops involving suspects in vehicles are fraught with danger to police officers as suspects may injure police officers and others by virtue of their access to weapons although they may not themselves be armed. Michigan v. Long, — U.S. —, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); State v. Leagea, 442 So.2d 699 (La. App. 1st Cir.1983). In Michigan v. Long the court stated:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. 103 S.Ct. at 3480.

Although the court acknowledged that its decision did not mean that police may conduct automobile searches whenever they make an investigative stop, it concluded the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible. The police officer, however, must possess a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. The issue is whether a reasonable and prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a suspect at the rear of the car break away from police control and retrieve a weapon from his automobile.

In this case, the officer was justified in approaching and looking into the vehicle. The officers noticed more than one person in the car. They saw the occupants leaning down and when the car was stopped, the driver and one other person hurriedly exited the car and approached the officers. It would be reasonable to think that the men were trying to keep the officers from looking in the car and that weapons might be in the vehicle. While conducting a legitimate Terry search of the interior of the automobile the officer discovered contraband in plain view. He was not required to ignore the contraband, which is admissible under the plain view doctrine. Michigan v. Long, 103 S.Ct. at 3480, 3481. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The extent of the search after the discovery of the contraband on the front seat and the placing of the defendants under arrest has not been questioned. Therefore, the trial court did not err in denying the motion to suppress. The officers made a valid investigatory stop, a valid Terry search of the car, discovered contraband in plain view, made an arrest and conducted a valid search of defendant after arrest.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBERS 3 AND 4

Defendant contends the trial court erred when it overruled his objection to the introduction of marijuana seized from defendant and testimony regarding the marijuana. The trial court ruled the evidence and testimony was relevant to prove defendant’s knowledge and intent to possess Pentazo-cine.

The trial court has great discretion in determining relevancy of evidence, and its determination will not be overturned absent a clear abuse of discretion. State v. Easley, 432 So.2d at 912. Defendant was charged with possession of Pentazocine, a violation of La.R.S. 40:967(C), which requires that the person charged knowingly or intentionally possesses the substance. Although 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. Mims, 330 So.2d 905 (La.1976); State v. Staton, 433 So.2d 222 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1112 (La.1983).

Defendant obviously knew he had an illegal substance, marijuana, in his pocket. It is not unreasonable to conclude that knowledge of the marijuana also infers knowledge of an intent to possess Pen-tazocine. In any event, matters of doubtful relevancy which might prejudice a jury will not necessarily prejudice a trial judge trained to limit the purpose of such matters. State v. Bowman, 434 So.2d at 1178. We do not find the judge was prejudiced by defendant’s possession of the marijuana, and even if irrelevant to show knowledge or intent, there is sufficient evidence to convict as we will discuss in the following assignments of error. Additionally, the testimony regarding defendant’s possession of marijuana at the scene was admissible as part of the res gestae. La.R.S. 15:447, 448; State v. Edwards, 412 So.2d 1029 (La.1982). Thus, the trial judge did not commit reversible error in admitting the testimony and evidence of the marijuana.

ASSIGNMENT OF ERROR NOS. 5 AND 6

Defendant contends the trial court erred when it denied his motion for a directed verdict of acquittal and found him guilty contrary to law and evidence. Defendant by these assignments essentially argues that there was insufficient evidence to support the conviction.

In a trial by the judge alone, the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. La.C.Cr.P. art. 778. In reviewing a trial court’s ruling on sufficiency of the evidence in a judge trial, the appellate court is limited to a determination of whether a reasonable fact finder must have a reasonable doubt from the evidence presented viewing it in a light most favorable to the state. La.C.Cr.P. art. 821, State v. Captville, 448 So.2d 676 (La.1984); State v. Goiner, 410 So.2d 1085 (La.1982); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

Defendant argues that the evidence is insufficient to prove he had possession over the drug, nor was there proof that he had the intent to possess. Intent, although a question of fact, may be inferred from the circumstances. State v. Staton, 433 So.2d at 224. One of the pills was crushed in a bottle cap. There were syringes which could have been used for injecting the drugs. A blood-stained paper towel, which was further evidence of injection, was discovered in the back seat where defendant sat. Defendant was holding a cup of water which could have been used to liquify the drugs for injection. The fact that he had both beer and water decreases the possibility that the water was for consumption. Intent can be inferred from these facts. The fact that defendant was sitting in the back seat while the drug was actually in the front seat does not negate defendant’s intent to possess.

The evidence also supports a finding that defendant possessed the drug. Actual possession need not be proven; constructive possession is sufficient. A person may be in constructive possession of a controlled dangerous substance if it is subject to his dominion and control regardless of whether or not it is in his physical possession. State v. Edwards, 354 So.2d 1322 (La.1978). Here it is obvious that defendant was not merely present in the area where the drug was found. Cf. State v. Walker, 369 So.2d 1345 (La. 1979). Although he was in the back seat of another’s car, it was clear that defendant knew the drugs were in the car; they were in open view in the middle of the front seat. Furthermore, defendant was found holding a cup of water and was near a bloody paper towel — items presumably to be used when the drugs were injected.

A reasonable fact finder, viewing the evidence in a light most favorable to the state could find sufficient proof of all elements of the offense beyond a reasonable doubt. The trial judge did not err in denying the motion for acquittal. This assignment of error lacks merit.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . We consider the matter as a Terry search only because that is the way the arguments are presented. Actually, the record is unclear as to whether the officer had entered the car even partially before he saw the pill. If the officer had not in any way entered the vehicle when he observed the pill from a place where he had every right to be, the observation was not the result of a search. Consequently, observation of contraband without having conducted a search gave the officer every right to seize the contraband and arrest the violator. State v. Terracina, 309 So.2d 271 (La.1975).


author: LANIER, Judge.

text:
    STATE of Louisiana v. Alfred WILLIAMS.
    No. KA 83 1297.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Alfred Williams, was charged by a bill of information with simple robbery in violation of La.R.S. 14:65. He pled not guilty, waived his right to trial by jury, was tried by the district court judge and was found guilty. The district court judge sentenced the defendant to serve seven years in the custody of the Louisiana Department of Corrections.

SUFFICIENCY OF EVIDENCE

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

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

A plea of not guilty places upon the State the burden of proving beyond a reasonable doubt each element of the crime with which the defendant is charged. La. R.S. 15:271; La.C.Cr.P. art. 804(A)(1); State v. Humphrey, 412 So.2d 507 (La.1981); State v. Gomez, 433 So.2d 230 (La. App. 1st Cir.1983), writs denied, 440 So.2d 730 (La.1983) and 441 So.2d 747 (La.1983). The crime of simple robbery is defined in La.R.S. 14:65 as follows:

Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

Wilbur Williams testified that he got off work at approximately 4:00 p.m. on March 5, 1983, and went to Johnny’s Liquor Store and Lounge (Johnny’s) located at the corner of Terrace and East Boulevard in East Baton Rouge Parish and started drinking beer. After a while, he left Johnny’s and went to the Wagon Wheel Bar a short distance away, but then went back to Johnny’s. At some unspecified point in time at Johnny’s, Wilbur Williams bought a small bottle of wine for a woman named Pat Heard and paid for this purchase out of his wallet which contained approximately $280 in cash. At approximately 7:00 p.m., Wilbur Williams left Johnny’s and walked to his car (a 1971 Ford LTD). He was approached by Faye Williams, Alfred Williams and another man and another woman whom he could not identify. Faye Williams struck Wilbur Williams on the head with her hand and knocked him down. Faye Williams, Alfred Williams and the two others then held Wilbur Williams down and took his wallet and car keys. The four persons then took Wilbur Williams’ automobile and left. Wilbur Williams walked to his home located approximately four or five blocks away and told his wife of the incident. His wife recommended that the incident be reported, and the police were called by telephone at approximately 7:30 p.m. Wilbur Williams then walked to the police station which was located approximately three blocks from his home. Shortly afterwards, the police recovered his vehicle near Charlie’s cab stand on East Boulevard in the vicinity of Johnny’s. Wilbur Williams had five or six beers while he was in Johnny’s.

Larry Servick, Wilbur Williams’ stepson, testified he knew Faye Williams and Alfred Williams prior to the incident because they lived in the same neighborhood. On March 5, 1983, Servick’s stepfather, Wilbur Williams, came home and told Servick’s mother (Mrs. Wilbur Williams) that somebody jumped him and got his car and money. Servick’s mother told him to go look for the car, and he left the house to do so. When he was on East Boulevard, he saw his stepfather’s car coming toward him and then park in the driveway of Charlie’s cab stand, which is in the vicinity of Johnny’s. He saw four people in the car eating something. Faye Williams was in the driver’s seat and got out of the car. Servick went to a barber shop in the neighborhood, called his mother and reported what he saw. He then ran home. Later, the police caught the people in the car at Charlie's cab stand.

Thomas Pique, an officer with the Baton Rouge Police Department, testified that on March 5, 1983, he went to Wilbur Williams’ home at approximately 7:30 p.m. Larry Servick called while Pique was at Wilbur Williams’ home and reported seeing the missing vehicle. Pique left and went to look for the car but did not find it. He then returned to the police station. Pique was then advised that the vehicle was still at Charlie’s cab stand, and he went back and found the vehicle in front of Charlie’s cab stand on East Boulevard. Alfred Williams, Pat Heard and an unnamed female were seated in the vehicle. The driver’s seat was empty, and Faye Williams was standing next to the car. Pique arrested all four and patted them down. No money was recovered from these people. Pique conducted a quick search of the vehicle but found nothing. He then gave the vehicle to Larry Servick. Pique testified Wilbur Williams was intoxicated, and he saw no evidence of injury. Wilbur Williams identified Alfred Williams and Faye Williams as persons who robbed him but could not identify either of the other two persons arrested.

Lillie Louise Johnson testified that she went to Johnny’s about 3:30 or 4:00 p.m. on March 5, 1983. She drank a pint of Seagram’s Gin before she left her home. While at Johnny’s, she drank three or four more shots of gin. When she entered Johnny’s, Faye Williams and Pat Heard were in the back of the place. Wilbur Williams was in the front with a group of men and was buying drinks for people. Johnson heard Wilbur Williams arguing with another woman and accusing her of robbing him at a motel. He told her he wanted his money back. She then saw Faye Williams and Wilbur Williams talking, and both left Johnny’s but came back in. Johnson saw Faye Williams leave Johnny’s again, and Johnson went to look for her. When Johnson got outside of Johnny’s, she saw Wilbur Williams laying on the ground, and Alfred Williams and Faye Williams were standing nearby. Wilbur Williams got up and left. Faye Williams told Johnson she had the keys to Wilbur Williams’ car and asked Johnson to go riding. She then went with Faye Williams, Pat Heard and Alfred Williams in Wilbur Williams’ car to Faye Williams’ mother’s home. Johnson did not see anyone take anything from Wilbur Williams and did not see anyone use force or violence upon him. Wilbur Williams was full of drinks and was wobbling. Johnson did not see Wilbur Williams give his car keys to Faye Williams. Johnson did not tell Officer Pique that she saw Faye Williams and Alfred Williams knock Wilbur Williams to the ground.

Faye Williams testified that she saw Wilbur Williams between 4:30 and 5:00 p.m. on March 5, 1983, at Johnny’s. Faye Williams worked at Charlie’s cab stand located down the street from Johnny’s at 1349 East Boulevard. Wilbur Williams bought Faye Williams several drinks. At about 2:00 or 2:30 p.m., Valerie Brown left with Wilbur Williams to “turn a trick”, but Wilbur Williams must have been “clipped” and came back to Johnny’s and cursed Pat Heard. Wilbur Williams then gave Faye Williams the keys to his car so she could help find Valerie Brown. Faye Williams and Pat Heard left and went to a wedding reception but returned again to Johnny’s. During this time, Faye Williams drank a few shots of gin. Faye Williams went outside. Wilbur Williams followed her and started cursing her. Faye Williams hit Wilbur Williams and he fell down. Her cousin, Alfred Williams, was across the street at Delpit’s Chicken Shack and came over. Louise Johnson came out of the door of Johnny’s after the fight. Alfred Williams never touched Wilbur Williams. Faye Williams and Alfred Williams did not take any money from Wilbur Williams. Wilbur Williams then used bad words and hollered for his keys back. Faye Williams went back to Johnny’s and had another drink. Faye Williams then took Wilbur Williams’ car to go home to change. Faye Williams admitted that she had been convicted of forgery, cruelty to juveniles, carrying a concealed weapon in 1974, obtaining drugs by fraud in 1975, resisting arrest in May of 1978 and a fistic encounter in April of 1979.

Officer Pique was recalled and testified that on March 5, 1983, he talked to Lillie Louise Johnson as part of his investigation. Johnson told him she observed Faye Williams and Alfred Williams knock Wilbur Williams to the ground, hold him, and Faye Williams took keys out of Wilbur Williams’ pocket. Pique also questioned Faye Williams as part of his investigation, and she gave essentially the same story that she gave in court.

The verdict of the district court judge indicates that, after considering the credibility of the witnesses and weighing the evidence, he accepted the testimony of Wilbur Williams, Larry Servick and Officer Pique and rejected the testimony of Faye Williams and Lillie Louise Johnson. The testimony of Wilbur Williams, Larry Ser-vick and Officer Pique is sufficient to prove the elements of the offense of simple robbery and that Alfred Williams aided and abetted in its commission as a principal (La.R.S. 14:24).

The defendant contends that the testimony given by Faye Williams revealed a more acceptable version of the events leading to the alleged crime than the description of the events given by the victim, that the testimony given by the victim is conflicting and difficult to understand, that the victim was intoxicated and that, due to the victim’s state of mind and his confusing testimony, there is at the very least a reasonable doubt as to the defendant’s guilt. The essence of this argument is that the testimony of the victim is not credible and should not have been accepted. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 81, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact. Korman, 439 So.2d at 1101. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const. of 1974, art. V, § 10(B). This court is constitutionally precluded from acting as “thirteenth juror” in assessing what weight to give evidence — that determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. McDowell, 427 So.2d 1346 (La.App. 2nd Cir.1983).

This assignment of error is without merit.

EXCESSIVENESS OF SENTENCE

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

A majority of the Louisiana Supreme Court has held that Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment and that, although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

At the sentencing hearing, the district court judge observed that the defendant was born on August 24, 1946, and had the following adult criminal record:

(1) July 9, 1969 — illegal carrying of weapon — guilty—fined $25;
(2) July 17, 1972 — disturbing the peace— guilty — fined $25;
(3) June 21, 1980 — misdemeanor theft-guilty — fined $100; and
(4) June 24, 1980 — simple burglary and felony theft — pled guilty to simple burglary — sentenced to five years at hard labor which was suspended.

The district court judge also noted that the defendant had several arrests, was not cooperative with the probation department on the presentence investigation and used the name Alphonse Williams, Jr.

The maximum authorized sentence for simple robbery is a fine of not more than $3,000, imprisonment with or without hard labor for not more than seven years, or both. The district court did not impose a fine. Had the State elected to charge the defendant as a second felony offender pursuant to the Louisiana Habitual Offender’s Law [La.R.S. 15:529.1(A)(1) ], he would have been subject to a maximum sentence of confinement of fourteen years and a minimum sentence of confinement of two and one-third years. Because the defendant is a second felony offender, he is not eligible for a suspended sentence or for probation. La.C.Cr.P. art. 893; State v. Francois, 438 So.2d 1317 (La.App. 3rd Cir. 1983); State v. Reed, 437 So.2d 353 (La. App. 4th Cir. 1983). These statutes are specific legislation for enhanced punishment for multiple felony offenders and represent a legislative determination relative to the “seriousness of the crime”. State v. Phillips, 412 So.2d 1036 (La.1982). The offense in the instant case is a crime of violence against the person where the victim was forcibly knocked to the ground and robbed of $280 in cash and his automobile. Because of the defendant’s prior criminal record and the manner in which the offense was committed, we cannot say the sentence imposed by the district court abused the much discretion accorded him by law. State v. Davis, 430 So.2d 680 (La.App. 2nd Cir.1983), writ denied, 433 So.2d 1056 (La.1983).

This assignment of error is without merit.

DECREE

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

AFFIRMED.

      . Wilbur Williams found his empty wallet under a seat of the car the next day.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Leroy GAINES.
    No. 83 KA 1426.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Zach Butterworth, St. Francisville, for plaintiff-appellee.
    Charles Griffin, St. Francisville, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

PACTS:

Defendant, Leroy Gaines, was charged by bill of information with theft of property having a value of more than $100.00 but less than $500.00, in violation of LSA-R.S. 14:67. Defendant entered a plea of not guilty, was. tried by a six-person jury and was found guilty as charged. He received a sentence of one year at hard labor, with sentence suspended, and was placed on active supervised probation for two years subject to special conditions: (1) that he serve six months in the parish jail, to be on work release on those days which he is working and (2) that he pay a fine of $1,000.00. Defendant now appeals his conviction and sentence, alleging four assignments of error, as follows:

1. The trial court erred when it denied defendant’s objection to suppress two statements made by defendant.

2. The trial court erred when it allowed the amended bill of information to be read to the jury as said bill of information had been amended by the district attorney in open court without defendant or his counsel present.

3. The trial court erred in overruling defendant’s motion for a post-verdict judgment of acquittal.

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

STATEMENT OF THE CASE:

On December 12, 1982, defendant was employed as a laborer in West Feliciana Parish. On that day, he arrived at work, picked up his pay check envelope and went on into his work station. A short time later, he noticed that his envelope contained two pay checks: his own and a check in the sum of $397.51 made payable to J.B. Robertson. He pocketed both checks and, later that day, gave the second check to a co-worker, Bobby Kelly, who retained the check. On December 20,1982, Bobby Kelly told defendant he had the check signed, and at lunch break that day the two men went to the Bank of Commerce in St. Francisville, where Bobby Kelly cashed the check. When the two men left the bank, defendant received approximately half the money from Bobby Kelly. Defendant immediately spent his half.

Three months later, defendant was questioned by his Security Supervisor, who testified that defendant told him the whole story. Defendant then went to the bank, offered to make restitution and, pursuant to request by the sheriffs office, voluntarily went down to the police station and answered questions about the Robertson check. After being given his Miranda rights, defendant gave a statement to investigators. Defendant was arrested and charged with theft of property having a value of more than $100.00 and less than $500.00.

Testimony at trial revealed that defendant’s employer had issued another pay check to J.B. Robertson on the afternoon of December 12, 1982, and had issued a stop payment on Mr. Robertson’s check received by defendant. After Bobby Kelly cashed the Robertson check, it was forwarded to the payor bank in Baton Rouge, which, pursuant to the stop payment order, refused to reimburse the St. Francisville Bank for the amount paid out to Bobby Kelly on December 20, 1982.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the trial court erred when it denied defendant’s objection at trial to the admission into evidence of two statements made by defendant marked “State 2” and “State 3-A” on the grounds that the said statements were not knowingly, freely or voluntarily made. Defendant submits that consideration of these statements by the jury violated defendant’s rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. Defendant argues that he was indirectly coerced into signing the statements when Deputy Sheriff Cutrer requested that defendant sign the document containing defendant’s statement which Officer Cutrer had written as defendant spoke. Further, defendant contends he did not know whether or not the statements contained exactly what he had said due to his impaired ability to read.

Defendant makes no complaints of police brutality, police promises or police conduct designed to produce a confession which would not be a voluntary product of one’s own choice, nor that he was an illiterate or possesses a low I.Q. Rather, defendant argues that his lack of an ability to read well affected his understanding at the time he gave his statements to the deputy sheriff.

Before a confession or inculpato-ry statement can be introduced into evidence, the state has the burden of affirmatively proving that it was made freely and voluntarily and not made under the influence of fear, ‘duress, intimidation, menaces, threats, promises, or inducements. State v. Taylor, 422 So.2d 109 (La.1982). When the issue on appeal is whether an accused’s level of intelligence precludes him from effectively understanding the consequences of his oral statement transcribed into a written confession much weight is accorded the trial court’s assessment. State v. Le-Fevre, 419 So.2d 862 (La.1982). The credibility choice of the trial court in ruling on the voluntariness of a confession will not be disturbed unless clearly erroneous. State v. Wright, 441 So.2d 1301 (La.App. 1st Cir.1983).

In light of the uncontradicted testimony that the statements were made freely and voluntarily after defendant had been duly advised of Miranda rights, we conclude that the state has borne the burden of proving that defendant gave the statements freely and voluntarily. Thus, the trial court was correct in denying defendant’s objection to suppress defendant’s in-culpatory statements. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that the trial court erred when it overruled defendant’s objection to the reading of the amended bill of information before the jury. Defendant argues that, because the original bill of information was amended in open court by leave of court and outside the presence of defendant and his counsel, defendant was denied his right to be present at arraignment and represented by counsel at those proceedings. Hence, defendant argues that his rights as guaranteed by the Sixth Amendment to the U.S. Constitution were violated.

The record shows us that the bill of information originally read: “LEROY GAINES committed theft of a payroll check, made payable to J.B. Robertson, in the amount of $397.51”. This bill of information was amended the day before the trial began by the district attorney, with leave of court, in open court, to read: “LEROY GAINES committed theft by fraud in the amount of $397.51 from the Bank of Commerce of St. Francisville”. Additionally, the date of the alleged theft was amended from December 12, 1982, to December 20, 1982.

The record substantiates defendant’s claim that neither defendant nor his counsel was present in open court when the bill of information was amended. Further, there is no indication in the record that defendant was rearraigned on the amended charge. Therefore, there are two issues: whether the trial judge acted properly in allowing the amendment and whether or not defendant was entitled to be rear-raigned on the amended bill of information.

A bill of information or indictment may be amended, even substantially, before the first prospective juror is sworn and examined. It appears that it is totally unnecessary that a second arraignment be held, even if the amendment of the bill of information or indictment be one that touches substance. State v. Bluain, 315 So.2d 749 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973). Furthermore, counsel for defendant has failed to show that his client was in any way prejudiced by the amendment of the bill of information.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3:

Defendant contends that the trial court erred when it denied defendant's motion for post-verdict judgment of acquittal, arguing that the state failed to prove beyond a reasonable doubt all the essential elements of the crime charged.

LSA-R.S. 14:67 entitled “Theft” provides in pertinent part:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
“When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.”

Testimony at trial reveals that defendant was inadvertently placed in possession of a paycheck made to a J.B. Robertson, that he gave that check to Bobby Kelly, a co-worker, who had the check signed and, as part of the plan with defendant, cashed the check by fraudulently representing himself to be the person for whom the cheek was intended. Testimony also shows that Kelly and defendant divided the money and that defendant promptly spent his half. Defendant’s statements were entered into evidence and were corroborative of the evidence presented by the state to prove defendant’s guilt. Moreover, although defendant did not directly perpetrate the fraud upon the bank, his aid to and planning with Kelly in so doing leaves no doubt that defendant was a principal to the crime and thus guilty of the crime charged. LSA-R.S. 14:24; State v. Broussard, 312 So.2d 325 (La.1975).

Thus, it is clear that, viewing all the evidence in the light most favorable to the prosecution, the state proved that defendant was guilty of all elements of the crime of theft by fraud of property having a value of more than $100.00 and less than $500.00. LSA-C.Cr.P. 821.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 4:

Defendant complains that the sentence he received is excessive. Additionally, defendant contends that the trial judge did not adequately consider the mitigating factors present in defendant’s favor.

Defendant received a sentence of one year at hard labor, with sentence suspended. Defendant was then placed on active supervised probation for two years, subject to the conditions that he serve six months in the parish jail, to be on work release on those days when he was working, and that he pay a fine of $1,000.00. The maximum sentence defendant could have received is imprisonment at hard labor for two years and a fine of not more than $2,000.00. Hence, defendant’s actual sentence for appeal purposes, one year at hard labor and a fine of $1,000.00, is one-half the maximum possible. LSA-C.Cr.P. 893 A.

In the trial judge’s reasons for sentencing, he considered several mitigating factors that were set forth in Article 894.1: that defendant had no prior history of delinquency or criminal activity, that imprisonment would entail an excessive hardship to himself and his dependents. On the other hand, the judge also noted that a lesser sentence would deprecate the seriousness of the offense, that defendant did not act under strong provocation, and that there were no substantial grounds tending to excuse or justify defendant’s conduct.

A trial judge has great discretion in imposing sentence within statutory limits, and it will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982). A sentence will be deemed excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless and purposeless infliction of pain and suffering. State v. Vaughn, 431 So.2d 763 (La.1983).

It is clear from the record that the trial judge adequately complied with LSA-C.Cr.P. 894.1 in sentencing defendant. The trial court need not cite every factor listed in LSA-C.Cr.P. art. 894.1 in order to comply with it. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir. 1983); State v. Bradley, 414 So.2d 724 (La.1982). Further, it is not necessary that the trial judge enumerate all the factors he considers in sentencing. All that is necessary is an adequate basis for review showing that all relevant factors have been considered. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983).

We find no abuse of the discretion accorded to the trial court in sentencing, and no merit to this assignment of error.

The conviction and sentence are affirmed.

AFFIRMED.

      . The evidence marked “State 2” is a handwritten document taken down by Deputy Cutrer directly from defendant’s verbal dictation and signed by defendant; "State 3-A” is a typewritten affidavit signed by defendant and witnessed by two deputies. Both contain inculpatory statements made by defendant.

      . Stay of execution granted, 427 So.2d 438 (La.1983), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed. 367 (1983).

      . Defendant had also made full restitution to the St. Francisville Bank.


author: GAUDIN, Judge.

text:
    Ferd LeDUFF v. GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM COMPANY and Kemper Group.
    No. 84-CA-88.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Sheila C. Myers, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Lawrence K. Benson, Jr. and Melanie L. Miller, New Orleans, for defendants-appel-lees.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

This workmen’s compensation case was dismissed in the district court as being premature because the plaintiff, Ferd Le-Duff, had not initially submitted his claim to the Office of Worker’s Compensation Administration in accord with LSA-R.S. 23:1314, which, in part, reads:

“The presentation and filing of the petition ... shall be premature unless it is alleged in the petition that the claim for compensation has been submitted to the office for informal resolution and that such attempt to informally resolve the claim has failed ...”

On appeal, Mr. LeDuff argues that his injury — i.e., a lung disease allegedly related to his occupation — and his cause of action arose prior to the effective date of R.S. 23:1314, July 1, 1983, although his suit in the 24th Judicial District Court was not filed until July 21, 1983. Therefore, he feels, the statute is inapplicable and he can proceed directly to district court. He considers his cause of action a vested property right protected by the guarantee of due process.

Appellees contend that the statute is only procedural and should be given retroactive effect as there is no language showing a contrary intention. Appellees cite Lott v. Haley, 370 So.2d 521 (La.1979), and other cases.

At first glance, R.S. 23:1314 in isolation seems merely procedural, or remedial. However, other changes' in the workmen’s compensation law also became effective July 1, 1983, and many of these changes were substantive and relate directly or indirectly to R.S. 23:1314. These laws, which amended or reenacted numerous segments of Title 23, were passed at the 1983 First Extraordinary Session of the Louisiana Legislature.

Considering the changes as a whole, including R.S. 23:1314’s requirement that claims first be submitted to the Office of Workmen’s Compensation Administration, we are unable to say that they were purely procedural. Accordingly, Mr. LeDuff’s suit should not have been dismissed via maintenance of a dilatory exception of prematurity.

When Mr. LeDuff’s case is considered by the courts, or, argumentively, by the Office of Workmen’s Compensation, the substantive law in effect when his cause of action arose is clearly applicable. Mr. LeDuff worked at the National Gypsum Plant in Marrero, Louisiana for almost 35 years, retiring on June 22, 1982, more than a year before the provisions of R.S. 23:1314 became effective. He was advised by Dr. Morton Brown in May of 1983 of his diseased lung condition.

While we are unable to ascertain precisely the legislative intent, it seems reasonable that the legislature meant for the statutory changes to effect claims and causes of action arising after July 1, 1983. This is exactly the position taken by the Office of Workmen’s Compensation, which is on record as repeatedly stating that it "... has no jurisdiction over claims occurring prior to July 1, 1983..., reference the four exhibits (letters) which form part of this record.

Unless the courts are immediately available, Mr. LeDuff will have no forum to present his claim. The Office of Workmen’s Compensation is not likely to voluntarily change its position and there are no pending lawsuits asking that the Office of Workmen’s Compensation be ordered to entertain pre-July 1, 1983 causes of action cases.

For these reasons, we reverse the January 4, 1984 judgment maintaining the exception of prematurity, and we remand this matter to district court for further proceedings.

REVERSED AND REMANDED.


author: GRISBAUM, Judge. BOWES, Judge,

text:
    STATE of Louisiana v. William G. SMITH, a/k/a William Hart.
    No. 83-KA-780.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      John M. Mamoulides, Dist. Atty., James Maxwell, Asst. Dist. Atty., William C. Credo III, Asst. Dist. Atty., Gretna, for appel-lee.
    Martha E. Sassone, Indigent Defender Board, Gretna, for appellant.
    Before CHEHARDY, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

On August 14, 1980, William C. Smith a/k/a William Hart, was charged by a bill of information for the offense of aggravated battery (Louisiana Revised Statute 14:34). Subsequently, on July 18, 1983, defendant entered a plea of guilty to a charge of second-degree battery (Louisiana Revised Statute 14:34.1). On September 21, 1983, defendant was sentenced to serve five years to run consecutively with a life imprisonment sentence for second-degree murder imposed in proceeding in another division. Defendant áppeals from his five-year sentence for second-degree battery.

One assignment of error was filed in the trial court pursuant to Louisiana Code of Criminal Procedure article 844:

The Trial Court committed reversible error in sentencing the defendant to a term of five years at hard labor which sentence is excessive.

However, in defense counsel’s brief filed with this appellate court, the following was stated as the only assignment of error:

The sentencing judge’s lack of compliance with the sentencing guidelines under the C.Cr.P. Article 894.1 precluded the defendant from receiving full consideration of the sentencing criteria set forth in Article 894.1 and from receiving the consideration of the minimum sentence allowed by law for a conviction for attempt (sic) armed robbery. (Emphasis our own)

The assignment of error designated in the trial court record is inconsistent with defense counsel’s briefed assignment of error. More importantly and quite seriously, the assignment of error specified in the brief is not responsive to the offense for which defendant was charged. Despite these discrepancies, we will review defendant’s sentence for excessiveness. We review this assignment of error because under the facts of this case the "obvious substance of these two assignments of error is a claim that defendant’s sentence is excessive in violation of Article I § 20 of the 1974 Louisiana Constitution.

Louisiana Constitution Article I § 20 explicitly prescribes the imposition of excessive punishment. Supreme Court decisions have interpreted this section as permitting review of whether a sentence of a particular offender is excessive though within the statutory prescribed range. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Guajardo, 428 So.2d 468, 472 (La.1983); State v. Telsee, 425 So.2d 1251, 1253 (La.1983). Intertwined with appellate review of a sentence for excessiveness is review of the record to ensure that the trial court complied adequately with Louisiana Code of Criminal Procedure article 894.1 and accorded proper weight to all the relevant sentencing factors. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Tompkins, 429 So.2d 1385 (La.1983).

While the trial court need not articulate every aggravating and mitigating circumstance outlined in Louisiana Code of Criminal Procedure article 894.1, the record must reflect that he adequately considered these guidelines and particularized the sentence to the defendant. State v. Smith, supra. A sentence will be deemed excessive where it is “grossly out of proportion to the severity of the crime,” or where it is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Smith, supra; State v. Arcana, 423 So.2d 1136, 1137 (La.1982). After carefully reviewing the record and applying these principles, we do not find defendant’s sentence unconstitutionally excessive.

Firstly, we determine whether the trial court adequately complied with Louisiana Code of Criminal Procedure article 894.1. Rather than articulate any reasons for his sentence as required by Louisiana Code of Criminal Procedure article 894.1 , the trial court merely made defendant’s pre-sen-tence investigation a part of the record.

Although the trial court failed to comply with Louisiana Code of Criminal Procedure article 894.1 by providing some reasons for its maximum sentence, there are facts in the record, nevertheless, that allow us to make an independent determination of whether this sentence is excessive. Pertinent to our determination are the following facts:

On July 12, 1980, several Jefferson Parish Sheriff’s deputies were called to Herb and Gerrie’s Lounge in Marrero to investigate an earlier disturbance at another lounge. When one of the officers asked defendant to step outside to answer questions, defendant used abusive language and struck the officer in the face. A struggle ensued which eventually involved the calling in of other officers before defendant could be subdued. The record reflects approximately ten deputies were required to subdue defendant. When finally contained and placed in the patrol unit, defendant kicked the rear right passenger window out. During the struggle, officers and defendant Smith were injured.

Defendant is a 26-year-old man with an adult record of convictions for burglary, jail escape, and second-degree murder. Defendant also has numerous arrests. He has a high-school education and no apparent juvenile record. He denies he has any drug or alcohol-related problems. He has had sporadic employment as a welding snubber. Considering the severity of defendant’s offense and his past criminal record, we do not find the maximum sentence of five years for second-degree battery excessive. Defendant’s sentence of five years for second-degree battery is affirmed.

AFFIRMED.

BOWES, Judge,

concurring.

Although I agree with the result reached by the majority in affirming the sentence of the trial judge in this case, I cannot embrace the entire contents of their opinion.

The majority alludes to what it calls the “general rule” in footnote # 1 of the opinion, to wit, “that an assignment of error lodged in the trial court which is not briefed or orally argued is considered abandoned.” In my opinion, this is not a “general rule” but one of the Uniform Rules of the Courts of Appeal (Rule 2-12.4), which have been adopted by this Court and recently followed by two panels of this Court (see below). In addition, they concede that the assignment designated in the trial court is inconsistent with the assignment that was briefed and that the briefed assignment is not responsive to the offense for which defendant was charged. Yet, they go on to consider assignments of error which are not properly before the court.

In truth and in fact, the assignments reviewed were either lodged in the trial court and not briefed [thereby considered abandoned under Courts of Appeal Rule 2-12.4, State v. Dirden, 430 So.2d 798 (La. App. 5th Cir.1983) and State v. Laddin, 449 So.2d 691 (La.App. 5th Cir.1984)] or briefed, but not lodged in the trial court [improperly before this court in accordance with State v. Lavene, 343 So.2d 185 (La.1977); State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983); State v. Laddin, supra, and cases cited therein].

Since two separate panels of this Court (State v. Dirden, supra, panel composed of Judges Boutall, Kliebert and Grisbaum; and State v. Laddin, supra, panel composed of Judges Bowes, Gaudin and Du-fresne) have recently espoused and enforced the above rule, as well as at least one other Court of Appeal [see State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir. 1983)], and the Louisiana Supreme Court [State v. Dewey, 408 So.2d 1255 (La.1982) and cases cited therein], I am of the opinion that the majority erred in not doing the same thing. It is conceivable to me that these strongly embraced rules could be departed from for an urgent reason, such as a case involving a death sentence, or an extremely heavy one, but not for the reasons given here.

However, my most serious objection to the majority opinion is that it permits and approves of the trial judge merely making the defendant’s Pre-Sentence Investigation Report (hereinafter referred to simply as P.S.I. report) a part of the record as his reasons for sentencing, in lieu of specifically articulating any reasons whatsoever for imposition of the sentence assessed upon the defendant. I believe that such a practice is an abrogation of the trial judge’s duty and obligation, specifically imposed upon him by Article 894.1, C.Cr.P. This article is clear and unambiguous and mandates that the trial judge “state” his reasons. The necessity and importance of this requirement become obvious when one realizes that by merely alluding to the P.S.I. report (and not stating what factors were considered in arriving at the sentence), the sentencing judge has delegated to the reviewing court his obligation and forces upon them the necessity of “drawing conclusions” from the facts presented by the P.S.I. report, in order to address a claim of excessive sentence. This, in my opinion, is a very poor substitute for what was in the trial judge’s mind and does not comply with the law.

Finally, I note that Article 877 of the Louisiana Code of Criminal Procedure mandates that the P.S.I. report “shall be privileged and shall not be disclosed directly or indirectly....”, except to a limited number of designated persons. In my view, by simply including the report in the trial record, without ordering it to be sealed, the trial judge has clearly violated the mandate of Art. 877 and the rights of privacy of the sources of confidential information in the report (see Official Revision Comment to C.Cr.P.Art. 877). This practice will soon thoroughly destroy any confidentiality in such a report and inhibit the flow of confidential information to the Probation Officer completely.

Accordingly, I would remand this case to the trial court with instructions to articulate his reasons for the sentence imposed for at least minimal compliance with Art. 894.1. I would give further instructions that if he wished to include the P.S.I. report in the record as part of his reasons that he order it sealed and not to be opened except on his written order or the written order of an appellate court, depending upon which court has jurisdiction. However, I wish to make it clear that, in my opinion, the Appellate Court has an absolute right to obtain the P.S.I. report for it’s confidential review upon it’s own order.

Although I have the serious disagreements mentioned above with the majority, I do agree with their conclusion that the facts made available to us in this record fully support the sentence imposed and it is certainly not excessive.

      . The general rule is an assignment of error lodged in the trial court which is not briefed or orally argued is considered abandoned. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Car-lisle, 315 So.2d 675 (La.1975); See Uniform Rules — Courts of Appeal, rule 2-12.4; State v. Becnel, 441 So.2d 339 (La.App. 5th Cir.1983).

      . Louisiana Code of Criminal Procedure article 894.1 states in part the trial court should: “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”


author: BOWES, Judge.

text:
    Rodney Stephen MORGAN v. June Valley MORGAN.
    No. 83-CA-586.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      Harry R. Cabral, Jr., H. Craig Cabral, Metairie, for plaintiff/appellant.
    George H. Jones, New Orleans, for defendant/ appellee.
    Before BOUTALL, C.J., and KLIEBERT and BOWES, JJ.
   BOWES, Judge.

This is the fourth appeal involving domestic litigation between these parties. Because this Court is so well-versed in the facts of the situation, we will only briefly outline the various actions and subsequent appeals.

Originally, Mr. Morgan filed a petition for separation and his wife reconvened. Alimony pendente lite was granted in an interim judgment. The trial court later dismissed both actions, and, on appeal, the Fourth Circuit reversed in part, finding Mr. Morgan to be at fault in the separation [Morgan v. Valley, 410 So.2d 312 (La.App. 4th Cir.1982)]. While that appeal was pending, Mr. Morgan filed suit for divorce based on La.R.S. 9:301. A judgment of divorce was rendered on January 8, 1982, including a finding that Mrs. Morgan was not free from fault. Mrs. Morgan appealed that (divorce) judgment to this court, specifically the finding as to her fault. This court reversed the fault finding, but declared Mrs. Morgan had not proven necessitous circumstances and so denied her claim to permanent alimony. Morgan v. Morgan, 424 So.2d 541 (La.App. 5th Cir.1982).

During the pendency of the appeal of the divorce suit, Mrs. Morgan filed a rule for contempt and for past-due alimony penden-te lite, to which Mr. Morgan filed an exception of no cause of action. The trial court maintained the exception, and defendant appealed. This Court, on appeal, decided in favor of Mrs. Morgan, decreeing that she was entitled to alimony pendente lite until the divorce was final (during pendency of the appeal and until the judgment of the appellate court became final). Morgan v. Morgan, 428 So.2d 1185 (La.App. 5th Cir. 1983). The case was remanded to the District Court to determine the amount of arrearages due to Mrs. Morgan. On April 29, 1983, after hearing evidence, the trial court awarded $7,140.00 plus legal interest from date of judicial demand, and for all costs. It is from this judgment that Mr. Morgan now appeals, specifying as error, and we quote:

Where an appeal has been taken which is obviously frivolous on its face and which is clearly designed for the sole purpose of maintaining and preserving alimony which would not be due under a judgment of divorce which had been rendered therein, the alimony accruing under said judgment should not be granted to the party who has taken the frivolous appeal for that purpose.
In the alternative, it is submitted that where an appeal has been taken to a divorce judgment, which judgment is totally frivolous on its face, and which is clearly designed to perpetuate alimony which would not normally be due, then this Honorable Court should award such damages and attorney’s fees to the offended party as are commensurate with the amount of the judgment of alimony which has accrued under the frivolous appeal taken by the defendant-appellee.

Defendant, Mrs. Morgan, has answered the appeal, alleging (1) that legal interest on back-due alimony accrues from the time each payment is due, and not from the date of judicial demand; (2) that attorney’s fees should have been awarded in the lower court; and (3) that she is entitled to damages, attorney’s fees and costs for the bringing of a frivolous appeal.

As to appellant’s specification of error, it is apparent that he is rearguing the issues presented in the last two appeals referred to hereinabove. The questions of defendant’s entitlement to alimony penden-te lite and the period in which she was so entitled, were determined in the other Morgan cases.

The issue as to whether the divorce appeal was frivolous should have been addressed and answered at the time that appeal was taken. The court did not pronounce that matter frivolous in its opinion and it is not in our province to do so at this time. Indeed, the court there considered the question of fault presented by Mrs. Morgan with the gravity given to all opinions emanating from this court. If appellant takes issue with that decision, his remedy was an application for rehearing to this Court on that decision, or an application for writs of review to the Supreme Court. By appealing the issues presented here, at this point in the litigation, appellant is attempting to accomplish on another (fourth) appeal what he failed to achieve on the second and third appeals. We find it unnecessary and a violation of the concept of judicial economy to reconsider the first specification of error any further. The matters are res judicata.

This finding also determines the second specification to be totally without merit, for the appeals were not found to be frivolous.

Turning to defendant’s answering appeal, we note that Miller v. Miller, 321 So.2d 318, 321 (La.1975), a Supreme Court ease by which we are bound, holds that interest is due on alimony from the time when each support payment becomes due. See also Marshall v. Marshall, 390 So.2d 1365 (La.App. 4th Cir.1980) to the same effect. Accordingly, we hold here in accordance with Miller.

The trial court specifically found that Mr. Morgan was not in bad faith in refusing to pay the alimony in question, but was acting on the advice of his counsel. By this we take it that the trial court felt the “good cause” exception of R.S. 9:305 had been met, exempting plaintiff from the requirement of paying attorney’s fees. We find no manifest error in this ruling; in fact, it would be unfair to tax the plaintiff with these fees when he was clearly following Mr. Cabral’s advice. Inasmuch as these matters have been on appeal for so long, and the appeals have overlapping and conflicting issues, as well as time periods, we are reluctant to say that the advice of plaintiff’s legal counsel was improvidently or frivolously given; and so we affirm the trial court in its refusal to award attorney’s fees.

Finally, as to Mrs. Morgan’s request for damages and attorney’s fees for defending a frivolous appeal, this Court is sorely tempted to agree with her point of view. The resources of the judiciary system are taxed enough with serious litigation and are not to be wasted on efforts to relitigate matters which are res judicata — and few cases are so obvious as this one.

However, because Mrs. Morgan has answered this appeal requesting relief other than that connected with a frivolous appeal, and this relief has been granted in part, we find, for these reasons only, that it would be inappropriate for us to award damages and attorney’s fees under these circumstances.

For the foregoing reasons, the judgment of the trial court is amended in part to reflect that the total arrearages due to Mrs. Morgan are to bear legal interest from the date each payment became due and remanded to the trial court to calculate the proper amounts. The judgment is affirmed in all other respects. All costs of this appeal shall be borne by plaintiff-appellant.

AFFIRMED IN PART, AMENDED IN PART, AND REMANDED.