text:
    STATE of Louisiana, Plaintiff-Appellee, v. James COLTON, Jr., Defendant-Appellant.
    No. CR83-693.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    David L. Wallace, Evans, Bradley, Wallace & O'Neal, DeRidder, for defendant-appellant.

      W.C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

In this criminal appeal the sole assignment of error is defendant’s allegation that the trial court imposed an excessive sentence which constitutes cruel and unusual punishment.

Defendant-appellant, James Colton, Jr., pleaded guilty to one count of armed robbery. The trial court sentenced Colton to confinement at hard labor for a period of thirty-five years in the custody of the Louisiana Department of Corrections without benefit of parole, probation or suspension of sentence but subject to such commutations as may be allowed by law and with credit for time in custody prior to the imposition of the sentence.

In brief, in connection with the assertion that the thirty-five year sentence was excessive, defendant complained that the trial court took into consideration criminal charges against the defendant of which he had not been convicted and also took into consideration the court’s personal knowledge of the circumstances of victims of alleged crimes committed by defendant.

The minutes of the trial court for March 21, 1983, show that in this case the defendant entered his guilty plea as a result of a plea bargain. These minutes indicate that defendant was charged with three armed robberies, aggravated battery and simple escape. In exchange for defendant’s plea of guilty to one count of armed robbery (this case) the State dismissed all other charges. The remarks of the trial court explaining the considerations which went into its deliberations on the sentence imposed covered eleven pages. After the guilty plea was entered the trial court requested that a pre-sentence investigation be made. The sentencing remarks of the trial court review the information contained in the report including confessions of the defendant-appellant. The trial court noted that in this case the defendant not only committed an armed robbery of Leman Hester at a bait stand, but he also injured Hester by hitting him in the head with his gun. Also the trial court noted that defendant was sentenced on April 14, 1972, to imprisonment of two years on six felony counts and to serve eighteen months on one other felony count with all sentences to run concurrently. Defendant was paroled on October 17, 1972.

It is not clear whether the court’s knowledge of the two other robberies, the charges with respect to which were dismissed, came from confessions or other information in the pre-sentence investigation report. Nevertheless, we do not find the issue to be significant because we find that, even without considering such factors, the trial court’s sentence can be supported. For the same reason we do not regard any irrelevant matters which may have been considered by the trial court to be significant. The trial court was entitled to consider the fact that defendant had previously been sentenced for felony crimes. The trial court was also entitled to consider the fact that other charges against the defendant were dropped as a part of the plea bargain. See State v. Washington, 414 So.2d 313 (La.1982) and State v. McCarty and Nugent, 438 So.2d 1296 (La.App. 3rd Cir.1983). The maximum sentence to which defendant might have been sentenced was ninety-nine years, and the minimum was five. LSA-R.S. 14:64 covering armed robbery specifies that the incarceration shall be without benefit of parole, probation or suspension of sentence. The thirty-five year imprisonment is less than one-half the sentence which might have been imposed.

The trial court’s remarks indicated that it gave serious consideration to the sentencing. Without determining, or concluding, that the trial court improperly considered any facts in deciding on the sentence to be imposed, we find that facts which it could properly have considered adequately support the sentence imposed. We do not find the sentence to be excessive or violative of constitutional guarantees against cruel and unusual punishment. For the reasons given, the sentence imposed by the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Rex H. ROGERS, Appellant.
    No. CR83-720.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 16, 1984.
    Charles Schrumpf, Sulphur, for appellant.

      Leonard K. Knapp, Jr., Dist. Atty. and Charles W. Richard, Asst. Dist. Atty., Lake Charles, for appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

Defendant, Rex H. Rogers, was charged with obscenity, a violation of LSA-R.S. 14:106(A)(1) The defendant pleaded nolo contendere, and a pre-sentence investigation report was ordered by the trial judge. Subsequently, defendant was sentenced to one year in the parish jail. Defendant appeals and makes three assignments of error.

ASSIGNMENT OF ERROR NUMBER I

By this assignment, the defendant contends that the sentence of one year in the parish jail was excessive under the Louisiana Constitution. LSA-Const., Art. 1, § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Phagans, 412 So.2d 580 (La.1982). However, the trial judge is given wide discretion in the imposition of sentences, and his decision should not be upset absent a manifest abuse of discretion. State v. Fergus, 418 So.2d 594 (La.1982).

Defendant complains that his sentence is excessive when compared to other sentences which have been handed down for similar offenses. We disagree. The decisions cited by the defendant were based on different crimes and different sets of circumstances. Thus, we do not find them analogous to the case at bar.

Defendant’s sentence was well within the lower range of sentences which might have been imposed. Further, the incarceration is to take place not in the state penitentiary, but in the parish jail, without hard labor. Considering all the circumstances of this case, we find that the sentence imposed was not an abuse of the trial court’s broad discretion. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER II

By this assignment, the defendant argues that the trial judge erred in his imposition of sentence because he did not properly follow the guidelines set forth in LSA-C.Cr.P. Article 894.1. We note at the outset that non-compliance with the statute does not automatically require that the sentence be set aside. When the record clearly justifies a sentence imposed, resentenc-ing is unnecessary. State v. Jett, 419 So.2d 844 (La.1982).

A look at the record indicates, however, that the trial judge did follow the guidelines set forth in Article 894.1. Before sentencing the defendant, the judge specifically mentioned several of the factors which led to his decision. First, a companion charge, public intimidation, was dismissed against the defendant. Second, the defendant was billed so as to exclude the ages of his victims, which would have increased his exposure to jail time.' Third, the court noted that the defendant had two prior convictions, and that he had twice been brought back before the court to have his probation revoked. Thus, the judge felt that probation might not have worked in this particular case. Fourth, the defendant had a prior record involving juveniles. Fifth, the court had the benefit of a pre-sentence investigation report. Finally, the defendant’s attorney had an opportunity to comment on what he thought was the proper sentence. Considering the fact that the judge took all of these things into consideration, we feel that he properly followed the guidelines set forth under the Code of Criminal Procedure. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER III

By this assignment, the defendant claims that the trial court erred in not allowing the defendant’s attorney the opportunity to traverse the pre-sentence report. It is well settled that a defendant’s claim that he has not been afforded an opportunity to contradict unfavorable information contained in a pre-sentence investigation report cannot be asserted for the first time on appeal. State v. Norris, 347 So.2d 225 (La.1977). In the instant case, the trial judge was never made aware of the defendant’s desire to learn the contents of the pre-sentence investigation report because the defendant made no objection at the sentencing hearing. Therefore, this assignment of error is without merit.

DECREE

For the above mentioned reasons, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

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

      . LSA-R.S. 14:106(G)(1) provides, in pertinent part:
      "G. (1) On a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both.”

      .LSA-R.S. 14:106(G)(4) provides:
      "(4) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars or shall be imprisoned, with or without hard labor, for not less than two years nor more than five years, without benefit of parole, probation, or suspension of sentence, or both.”


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael GRIGSBY, Defendant-Appellant.
    No. CR83-737.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      James Spruel, Jr., Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and Robert Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Defendant, Michael Grigsby, was charged by bill of information with armed robbery and, subsequently, was found guilty by a twelve-person jury. At the sentencing hearing the defendant was found to be a third habitual offender and was sentenced to 50 years imprisonment. Defendant appeals alleging the evidence was insufficient to convict and the trial judge erred in his denial of a mistrial when a testifying deputy sheriff alluded to prior criminal acts of the defendant.

Defendant was accused of committing the armed robbery of a convenience store in violation of La.R.S. 14:64. After trial by jury the defendant was found guilty on April 28, 1983. The state’s case included the testimony of John W. Cross, defendant’s nephew, who also had a criminal record. Cross testified that when he heard the robbery had been committed he went to the scene of the robbery and talked to the clerk who gave a description of the perpetrator which matched that of his uncle. The defendant had been living with Cross and his wife at the time. Cross also testified that his uncle later admitted to him that he had robbed a store and taken some unknown quantity of money. In addition, the victim, Walter Pox, identified Michael Grigsby from a photographic lineup presented to him following the robbery. Fox again identified the defendant in open court although he admitted there was some doubt in his mind when he first viewed the photographs.

Sufficiency of the evidence is a question reviewable upon appeal. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Byrd, 385 So.2d 248 (La.1980). The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The critical inquiry when reviewing the sufficiency of evidence is to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt. Jackson v. Virginia, supra. “The relevant question is whether, after viewing 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.” Jackson v. Virginia, supra 99 S.Ct. at 2789.

The Jackson standard of factual review of sufficiency of the evidence applies in Louisiana. State v. Mathews, 375 So.2d 1165 (La.1979) and State v. Abercrombie, 375 So.2d 1170 (La.1979). See also: State v. Shapiro, 431 So.2d 372 (La.1982).

Applying the above law to the present case we are convinced that, viewing the evidence in a light most favorable to the State, every essential element of the crime was established beyond a reasonable doubt.

Deputy Donald Delouche was called by the State to testify as to his involvement in the investigation of the armed robbery for which the defendant was on trial. While being questioned by the State concerning Deputy Delouche’s presentation of a photographic lineup to the victim, Deputy De-louche made the following comment:

Q. Were you able to obtain any information as to a name of any individual who may have been involved in that robbery, sir?
A. Mr. Cross advised that his uncle, whom he called “Daigo”, whose name, in fact, he ... his real name, he advised was Michael Grigsby. Mr. Cross said that his uncle had told him that he had pulled an armed robbery of a convenience store, 7-11 Store, and that he didn’t know the location of it; but that he had gone to the 7-11 or Wizard on Fit-zenreider Road and 171; that he had heard the description that Mr. Fox had given him, and that he was sure that that was the one that his uncle had pulled. Q. With the name of Michael Grigsby, what did you do with that sir?
A. Okay, we ran a record check on him and found that Mr. Grigsby had a mug shot; got his mug shot; put it in a photographic lineup, and introduced the photographic lineup to Mr. Fox that night.

After more testimony concerning the presentation of the line-up was taken, attorney for defendant moved for a mistrial because of Deputy Delouche’s remark concerning the defendant having had a “mug shot”. After a short recess, Judge Patín refused to grant a mistrial and instead prepared an admonition for the jury, which was approved as to form and content by counsel for the defendant.

In State v. Douglas, 389 So.2d 1263 (La.1980), the State’s witness, an experienced officer, stated that the defendant had “recently been released from Angola”. The Court in that case upheld the trial court’s refusal to grant defendant a mistrial. The Court cited La.Code of Criminal Procedure Article 770(2), which requires a mandatory mistrial when a prejudicial remark is made in the presence of the jury by a court official or the district attorney. While the Court noted that a prejudicial remark made by a witness does not mandate a mistrial, it noted that when a prejudicial remark is made by an experienced officer who is called as a state’s witness, the Court should carefully scrutinize the remark and order a mistrial, “... especially if the remark was precipitated by or should have been anticipated by the district attorney...” See also: State v. Smith, 285 So.2d 240 (La.1973); State v. Babin, 336 So.2d 780 (La.1976); State v. Gabriel, 308 So.2d 746 (La.1975); State v. Landry, 316 So.2d 738 (La.1975).

The applicable test is enunciated in State v. Prestridge, 399 So.2d 564 (La.1981), at p. 573:

A leading question is one which suggests to the witness the answer he is to deliver; ordinarily, such questions are prohibited when posed to one’s own witness unless the witness is hostile or unwilling. La.R.S. 15:277. The purpose of the rule is to guard against the danger that a witness will acquiesce to a false suggestion. State v. Carthan, 377 So.2d 308 (La.1979). Notwithstanding the general rule, a verdict should be disturbed on appeal only where there is a clear abuse by counsel, calculated to prejudice the rights of the accused. State v. Quincy, 363 So.2d 647 (La.1978). In any event, the matter is largely within the discretion of the trial judge; absent a palpable abuse of his discretion, a finding of reversible error is unwarranted. State v. Fallon, 290 So.2d 273 (La.1974).

See also State v. Sneed, 328 So.2d 126 (La.1976); State v. George, 346 So.2d 694 (La.1977).

A mistrial is a drastic remedy and except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive the defendant of a fair trial. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tribbet, 415 So.2d 182 (La.1982). The determination of prejudice lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Tribbet, supra; State v. Douglas, supra.

Leading questions are not the type of prosecutorial error which diminish the reliability of a jury’s verdict. Mr. De-louche’s response was clearly irrelevant and, had he been properly prepared by the district attorney, the State’s case would not be jeopardized. However, only when there is clear abuse of' discretion which prejudices defendant’s rights will a conviction be reversed because of leading questions. State v. Felde, 422 So.2d 370 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982). The defendant herein has failed to show any prejudicial effect the statement had on his defense considering the admonition given the jury and failure to establish intended impropriety on the part of the questioning of the district attorney.

For the reasons assigned hereinabove, the defendant’s conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs.

See my concurring ‘opinion at 434 So.2d 1315 and 440 So.2d 205.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Patrick B. JOYNER, Defendant-Appellant.
    No. CR83-739.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 23, 1984.

      Evelyn M. Oubre, Rogers, St. Romain & Oubre, Lake Charles, for defendant-appellant.
    W.C. Pegues, III, Dist. Atty. and David W. Burton, DeRidder, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

The defendant, Patrick Joyner, was convicted by a jury of illegal possession of cocaine in violation of LSA-R.S. 40:967(C)(2). He was subsequently sentenced to serve three years at hard labor at the Louisiana Department of Corrections; credit was given for time served in jail by the defendant pending his trial. Additionally, the defendant was sentenced to the payment of a $2,500.00 fine plus court costs or, in default of payment thereof, to an additional imprisonment term of one year.

Prior to defendant’s trial, he filed a motion to suppress the cocaine seized by the sheriff’s deputies without a warrant. This motion was denied by the trial judge who found that the seizure was the result of a valid “inventory search” by the officers. Defendant appeals his conviction, raising as his sole assignment of error the trial judge’s denial of his motion to suppress the incriminating contraband.

The only question raised by this appeal is whether a valid inventory search occurred. For the reasons to follow, we answer this question affirmatively.

FACTS

At approximately 10:30 P.M., on November 1, 1982, the defendant was stopped and ticketed for speeding on U.S. Highway 171 in Beauregard Parish. The issuing officer, Deputy Mickey Cooley, had clocked (by the use of radar) the defendant’s vehicle at 89 miles per hour in a 55 miles per hour zone. However, upon hearing the defendant’s excuse that he was hurrying home to Texas to be with his wife who was experiencing health problems with her pregnancy, the deputy wrote the ticket to indicate that the defendant had been traveling only 80 miles per hour. Since individuals ticketed in Beauregard Parish, for traveling 85 miles per hour or faster, are required to be incarcerated until the posting of sufficient bond, Deputy Cooley’s lenience allowed the defendant to continue his journey.

Shortly after the initial ticketing, the defendant was once again stopped by a Beauregard Parish Sheriff’s Deputy, Glen Mears, who also radar-timed defendant’s speed as being 89 miles per hour. At this time the defendant was arrested. The vehicle he had been driving was a rental car from Texas, and the defendant was the sole occupant. Fearing that the car’s location would have resulted in it “being stolen or damaged or hit by another car going southbound on that highway,” Deputy Mears summoned a wrecker to tow the vehicle to the sheriff’s station.

When Deputy Cooley, the first issuing deputy, learned that the defendant had again been ticketed for speeding, he re-issued the original ticket at the speed actually timed earlier by him — 89 miles per hour. This action was taken at the sheriff’s office, where Deputy Cooley had heard of defendant’s arrest. Defendant’s bond for the two speeding violations was set at $300.00, and he had enough cash on his person to pay that amount, but he did not have the amount necessary to pay both his bond and the wrecker’s towing fee. Disregarding the deputies’ repeated advice to pay the wrecker’s towing fee so that his car would not have to be towed to a storage area, the defendant refused to pay the fee, thereby electing to leave his car in the tower’s custody. The defendant told the wrecker’s driver that he would pick up the car in a day or two.

The driver of the wrecker, Mr. Henry Cooley, then requested Deputies Mears and Cooley to inventory the car’s contents. Mr. Cooley testified that this was a standard procedure used to protect the car’s contents and to protect him against fraudulent claims by owners alleging losses of nonexistent items.

During the inventory an opened bank bag was located lying on the rear floorboard partially under the driver’s seat. The bag contained a large amount of cash (in excess of $2,500.00), a small notebook and numerous, small plastic packets wrapped in a paper towel. The packets contained a white powdery substance which was later determined to consist of cocaine.

ASSIGNMENT OF ERROR

Defendant assigns as error the trial judge’s denial of the motion to suppress the cocaine. The latter held that the actions of the deputies in conducting the inventory “were entirely reasonable and proper.” We agree.

As the search and seizure of the defendant’s rented car were conducted without a warrant, the State must shoulder the burden of affirmatively proving that they were justified under a recognized exception to the warrant requirements of the Fourth Amendment and LSA-Const. Art. I, § 5 (1974). State v. Sims, 426 So.2d 148 (La.1983); State v. Jernigan, 390 So.2d 1306 (La.1980). The trial judge found that a valid inventory search occurred, and this has been recognized to be an exception to the warrant requirement. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); State v. Jewell, 338 So.2d 633 (La.1976).

In establishing its burden of proof that the actions of its officers constituted a valid inventory search, “the state must prove that the impoundment of the defendant’s vehicle was necessary and that the inventory of the vehicle’s contents was necessary and reasonable in its scope.” State v. Sims, supra, at 153, citing State v. Crosby, 403 So.2d 1217 (La.1981), and State v. Jewell, supra. To ensure that the inventory search is not merely a subterfuge to circumvent the warrant requirements of the federal and state constitutions, the courts have ascertained several factors to be significant in determining whether a genuine inventory search occurred. Those factors are whether:

“(1) the vehicle could not have remained safely at or near the place it was stopped; (2) the search was not conducted in the field; (3) the tow truck was called before the search commenced; (4) formal impoundment procedures were followed; (5) the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency’s failure to afford him the protection of an inventory search; [and] (6) arrangements were made for someone designated by the operator to take possession or protective custody of the vehicle for him_” State v. Sims, supra.

The factors aforementioned, when applied to the case before us, amply indicate that the deputies conducted a valid inventory search of defendant’s vehicle. When the defendant was arrested for speeding on Highway 171, the hour was late (nearly midnight), and the unattended vehicle’s location on the road’s shoulder posed a potential traffic hazard. The arresting deputy was aware that the car was rented from Texas, and he feared the additional danger of vandalism. The defendant was from Texas, as indicated by his Texas license, and there is no evidence that he informed Deputy Mears of anyone within a reasonable distance, or otherwise, who could care for his car.

The call for a wrecker to tow the car to the Sheriff’s Department in DeRidder was, therefore, both necessary and reasonable under the attendant circumstances. The record reflects that Deputy Mears was following routine procedures in arresting the defendant and impounding his vehicle. No attempt was made by either deputy to search the defendant’s vehicle while it was on the highway. Indeed, Deputy Cooley had earlier allowed the defendant to proceed with his journey, although he could have easily arrested him for the first speeding violation.

After hearing the testimony of the deputies, the trial judge, fully cognizant of the scrutiny necessitated by inventory searches, found that no subterfuge had been practiced by the officers. We are in agreement with the following language by the lower court:

“There had not been any suspicion on the part of Officer Cooley that there was any contraband in Mr. Joyner’s car, nor was there any indication of any suspicion on the part of Officer Mears who made the second stop. So there’s nothing to indicate that the officers were eager to search the automobile operated by Mr. Joyner....”

It was not until after the vehicle had been towed to the parish jail and after the defendant had refused to pay his towing bill that the car was prepared to be sent to a storage area. In fact, it is apparent that the deputies and Mr. Cooley had futilely attempted several times to make arrangements with the defendant which would have prevented the storage and subsequent inventory of his vehicle. Although it appears that Beauregard Parish had not instituted a formal procedure for taking inventory of impounded vehicles, the evidence preponderates that the search was a standard procedure used in protecting items within the vehicle.

The lateness of the hour and the defendant’s refusal to pay the towing fee made the impoundment action both necessary and reasonable. Equally defensible was Mr. Cooley’s request that the deputies perform an inventory of the car’s contents. That inventory was not conducted in an intensive, evidence-searching fashion, but to locate the defendant’s valuables. Items found other than the bag included shoes in the trunk, a knife, a “fuzz-buster,” a checkbook and some cash.

Although the defendant’s consent to the inventory search or his waiver of the custodian’s liability for items in the car was never sought by the officers, this does not make the inventory defective. See, e.g., State v. Sims, State v. Jernigan, supra. Additionally, we note that Mr. Cooley testified that the defendant told him to “keep the car” until he could pick it up later. This statement expressly authorized Mr. Cooley to be custodian of the vehicle and his decision to request an inventory of the contents would, therefore, be valid without the defendant’s consent.

In sum, we find the officers’ actions to have been entirely reasonable, and the State has easily met its burden of proving the occurrence of a valid inventory search. For these reasons, this assignment lacks merit.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . There were actually two separate seizures. The first occurred during an alleged "inventory search” and involved numerous packets subsequently determined to contain cocaine. The second seizure was of a single packet (containing a trace of cocaine) which fell from the defendant's underwear as he was being prepared for incarceration, subsequent to his arrest for illegal possession of the contraband seized during the inventory search. On appeal defendant does not challenge the lower court’s denial of his motion to suppress the single packet. We are, therefore, concerned with only the inventory search and seizure.

      . Both officers testified that the bag was open, and Deputy Cooley stated that the zipper on the bag would not close when he attempted to close it.


author: YELVERTON, Judge.

text:
    Jimmy W. CLARK, Plaintiff-Appellee, v. PERNIE BAILEY DRILLING COMPANY, et al., Defendants-Appellants.
    No. 83-853.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Mouton, Roy, Carmouche & Bivins, William H. Goforth and John A. Bivins, Lafayette, for defendants-appellants.
    Kevin P. Monahan and Raymond Charles Vinet, Baton Rouge, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

This is a worker’s compensation case. The plaintiff, Jimmy Clark, seeks benefits for total and permanent disability, together with penalties and attorney’s fees. Defendants are the plaintiff’s former employer, Pernie Bailey Drilling Company, and its worker’s compensation insurer, Mid-Continent Underwriters, Inc. The trial court found plaintiff partially disabled under the provisions of LSA-R.S. 23:1221(3) and awarded benefits at the rate of $148 per week for a period not to exceed 450 weeks subject to a credit for sums already paid. The trial court rejected plaintiff’s claim for penalties and attorney’s fees.

Only the defendants have appealed. They contend the trial court erred in three respects: (1) finding the plaintiff partially disabled; (2) admitting into evidence the deposition of Dr. Tassin over their objection; ' and (3) assessing a fee for the deposition of Dr. Tassin. We affirm the finding of partial disability. We find it was error to admit the deposition of Dr. Tassin but the error was of no consequence. We find certain cost items relating to Dr. Tassin’s deposition were improperly taxed, and we will amend the judgment to make the necessary corrections. We will discuss these issues in the order presented after first outlining the basic facts:

Facts

On July 10, 1980, while in the course and scope of his employment as a roughneck for Pernie Bailey Drilling Company, plaintiff sustained injuries on an oil rig when the lead tongs he was operating snapped loose causing a chain to strike him resulting in injuries to his left leg, head, neck and lower back. At trial the parties stipulated that if a co-worker had been called to testify he would testify that he was present and saw the accident.

After the accident plaintiff was taken to Dr. Looney in Lake Charles where he was examined and an X ray of his leg was. taken. He was seen by Dr. Looney four times.

He next consulted his family physician, Dr. A. John Tassin. He saw him on thirty-eight different occasions beginning August 1, 1980. The last visit prior to trial was on February 23, 1983. Plaintiff was still under Dr. Tassin’s care at the time of trial, March 9, 1983.

On the initial visit plaintiff complained of pain in his neck and low back. Dr. Tassin observed spasm of the lumbar musculature and a hematoma in his left leg. His initial impression was muscle and ligament injuries to the neck and lower back with direct injury to the left leg. On the subsequent visits plaintiff complained mainly of pain in his low back radiating to the left leg. Dr. Tassin testified that plaintiff’s pain was consistent and that the degree of pain was moderate but quite severe at times. Dr. Tassin has noticed weakness and some numbness in the left lower extremity. In his opinion the accident caused the disability and plaintiff is permanently disabled from doing heavy manual labor.

The plaintiff made five visits to Dr. James R. LaFleur, an orthopedic surgeon. His initial visit was on August 4, 1980, and his last visit was January 6, 1981. Dr. LaFleur’s initial impression was a cervical and lumbar myofascial strain with L-5 root neuropraxia secondary to muscle spasm. He caused a myelogram to be performed which was normal. The doctor found no impairment to the plaintiff’s low back on the last visit. He stated that when he released the plaintiff, he could have returned to light duty.

Dr. Tassin referred the plaintiff to Dr. Charles R. Billings, an orthopedic surgeon. Plaintiff complained to this doctor of low back pain with pain radiating into the left leg. Dr. Billings’ initial impression was post-traumatic degenerative disc disease with segmental instability. Both the straight leg raising test and the bilateral active straight leg raising test produced pain in the low back region. After five subsequent visits with no significant change in plaintiff’s condition, a lumbar myelogram was performed on December 14, 1981, with no abnormal findings. On December 16, 1981, a discogram was performed revealing an abnormal L4-5 disc. On the September 27, 1982, visit the doctor noted an exacerbation of plaintiff’s symptoms (increased back pain radiating into his left extremity). Plaintiff’s last examination by Dr. Billings prior to trial was on January 24, 1983. Dr. Billings assessed a thirty per cent physical impairment to the plaintiff’s back due to the related loss of motion in the lumbar spine and pain. Dr. Billings felt that heavy manual labor would probably reproduce plaintiff’s symptoms and that plaintiff was incapable of performing heavy manual labor due to his condition. The doctor stated that the plaintiff should be restricted in his activities from lifting weights greater than 50 to 100 pounds, repetitive bending or stooping, and prolonged sitting or standing.

On October 14, 1981, plaintiff was examined by Dr. James C. McDaniel, .an orthopedic surgeon, for consultation and diagnosis for litigation purposes only. The doctor found no abnormal findings which could be related to the July 1980 accident and felt the plaintiff was “over-exaggerating” his symptoms.

On February 23, 1983, plaintiff was examined by Dr. T.E. Banks, an orthopedic surgeon appointed by the court. This doctor also felt the plaintiff was exaggerating his symptoms and felt the residual effects of the injury in 1983 were minimal. The doctor stated that he reviewed the material obtained from the December 1981 disco-gram and opined that if the discogram was performed properly the plaintiff possibly did have a bulging of the disc in that area.

The trial court in his written reasons for judgment found that the plaintiff was experiencing substantial pain and that he was no longer able to perform his former duties of employment and held that the plaintiff was partially disabled.

Issue No. 1

The evidence preponderates in favor of the trial court’s determination that the plaintiff is partially disabled under LSA-R.S. 23:1221(3).

As this court stated in Bernard v. Merit Drilling Company, 434 So.2d 1282 (La.App. 3rd Cir.1983):

[5-8] A worker is partially disabled under LSA-R.S. 23:1221(3) when he cannot perform the duties required by his former employment but can still do other work. Scott v. Sears, Roebuck & Company, 406 So.2d 701 (La.App. 3rd Cir.1981). Partial disability also includes the situation where a workman would experience substantial pain when working in his former occupation, but where he could perform other work without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3rd Cir.1979), writ denied, 371 So.2d 1342 (La.1979).

In the present case the testimony of Dr. Tassin reveals that plaintiffs condition rendered him permanently disabled from doing heavy manual labor, and that his condition was caused by the accident. The deposition of Dr. Billings revealed that because of plaintiffs abnormal L4-5 disc and other physical findings heavy manual labor would probably reproduce plaintiffs symptoms and that therefore plaintiff was incapable of performing that type of duty. The doctor further testified that plaintiff should be restricted in his activities. He should avoid lifting weights greater than 50-100 pounds, repetitive bending or stooping, and prolonged sitting or standing, but with these modifications the plaintiff should be employable.

As the Supreme Court stated in Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982):

... Such diagnosis and the opinions of the treating physician and specialist to whom referred by the treating physician are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes only. Williams v. Liberty Mutual Ins. Co., 327 So.2d 462 (La.App. 3d Cir.1976); Babin v. Highlands Ins. Co., 290 So.2d 720 (La.App. 1st Cir.1974); Gates v. Ashy Construction Co., Inc., 171 So.2d 742 (La.App. 3d Cir.), writ denied 247 La. 678, 173 So.2d 542 (1965); Harris v. Argonaut Ins. Co., 142 So.2d 501 (La.App. 2d Cir.1962).

In the present case we find the diagnosis and opinions of the treating physician (Dr. Tassin) and the treating specialist (Dr. Billings) are entitled to more weight than that of those doctors examining the plaintiff for diagnosis and for consultation for litigation purposes only.

We also find that the plaintiff is incapable of performing the duties required by his former employment. In addition to the medical experts Leonard Francois, the defendants’ vocational expert, testified that plaintiff’s former duties as an offshore worker consisted of heavy manual labor, but that his analysis of the record indicated plaintiff could only perform jobs requiring light or medium work. For the above reasons we find the plaintiff to be partially disabled within the meaning of LSA-R.S. 23:1221(3).

Issue No. 2

Defendants argue that the trial court erred in permitting plaintiff to introduce over their objection the deposition of Dr. Tassin since Dr. Tassin had testified live at trial and no basis existed for the introduction of the deposition under LSA-C.C.P. art. 1450. This argument has merit. We find no evidence in the record which would render the deposition admissible under article 1450. Therefore, we agree with defendants that the deposition should have been excluded from evidence.

Its inclusion in the record, however, and even its consideration by the court in our opinion could not have affected the outcome of this case. There is no real difference in Dr. Tassin’s deposition and his trial testimony. About the most that can be said concerning the difference is that the deposition was more detailed.

' Issue No. 3

The trial court assessed defendant with the cost of Dr. Tassin’s deposition. Since this deposition was improperly admitted and should have been excluded, it follows that the cost of the deposition was not taxable. The cost of a discovery deposition not used at the trial may not be charged as costs. LSA-R.S. 13:4533; Succession of Franz, 242 La. 875, 139 So.2d 216 (1962); Parish v. Bill Watson Ford, Inc., 354 So.2d 727 (La.App. 4th Cir.1978), writ denied 356 So.2d 1005 (La.1978).

Likewise, a fee should not have been awarded Dr. Tassin for the deposition. In United Gas Pipeline Company v. Singleton, 241 So.2d 93 (La.App. 3rd Cir.1970), writs denied 242 So.2d 578 and 579 (La.1971), this court determined that a fee awarded an expert appraiser for the taking of a deposition excluded from evidence must be disallowed. In that case the appraiser also testified at trial and the trial court properly sustained plaintiff’s objection to the filing of the deposition.

In the present case the trial court awarded Dr. Tassin a total fee of $350 for his testimony by deposition and at the trial on the merits. The court fixed the expert witness fee of Dr. Billings at $250 for a deposition taken for trial purposes. We will decrease Dr. Tassin’s expert witness fee to $250.

For the above reasons the judgment of the trial court is amended so as to eliminate the cost of the deposition of Dr. Tassin as an item of costs, and also to decrease Dr. Tassin’s expert witness fee to $250. In all other respects the judgment is affirmed. All costs of this appeal are to be borne by the defendants-appellants.

AMENDED and AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Jerome C. BENSON, Plaintiff-Appellant, v. Howard Warren SEAGRAVES, et al., Defendants-Appellees.
    No. 82-163.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 23, 1984.

      Breazeale, Sachse & Wilson, John B. No-land, Baton Rouge, for plaintiff-appellant.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case is before us again, this time on remand from the Louisiana Supreme Court. Jerome C. Benson originally instituted this tort action to recover damages for personal injuries sustained by him while riding as a guest passenger in a truck driven by Howard Warren Seagraves. Although plaintiff was an employee of Barlay Engineers, Inc., the truck in which he was riding as a guest passenger was owned by Jefferson Davis Electric Cooperative, Inc., Seagraves’ employer, and was insured by United States Fidelity & Guaranty Company (hereinafter USF & G). Made defendants were Seag-raves, Jefferson Davis, and USF & G. The workmen’s compensation insurer of Barlay, Commercial Union Insurance Company, intervened to recover the compensation benefits which it paid to Benson.

All defendants answered via general denials and affirmatively set forth the defense of contributory negligence. Additionally, the defendants asserted a special defense of “statutory employer” claiming that plaintiff’s work was a part of Jefferson Davis’ trade, business, or occupation. As such, defendants contended that Ben-, son’s exclusive remedy was workmen’s compensation and thus they were not liable in tort.

At the jury trial it was stipulated that the accident was caused by the negligence of Seagraves. The jury returned a special verdict which found Benson was not the statutory employer of Jefferson Davis and further awarded damages on the tort claim in the amount of $125,000.00. Plaintiff then appealed that judgment to this Court, claiming that the jury abused its discretion in awarding him only $125,000.00 in damages. Defendants answered the appeal claiming that the jury should have held that Benson’s exclusive remedy was in workmen’s compensation; the basis of such premise being that Benson was the statutory employee of Jefferson Davis. In our review of that case, published as Benson v. Seagraves, et al., 421 So.2d 995 (La.App. 3rd Cir.1982), we found the jury was in error in holding that Jefferson Davis was not the statutory employer of Benson. Accordingly, we reversed the judgment of the trial court and rendered judgment in favor of the defendants, Jefferson Davis, USF & G, and Howard Seagraves, and further ordered plaintiffs petition against them dismissed. On Benson’s application, our high court granted certiorari.

In its review of the case, our Supreme Court held that Jefferson Davis was not the statutory employer of Benson. It further stated:

“[bjecause the court of appeal sustained the statutory employer defense, it did not reach the issues of contributory negligence and quantum. We therefore consider it more appropriate to remand the case to that court for it to determine whether or not Benson was contributorily negligent and, if not, the adequacy of the award of damages.”

Supra at 529.

Thus the two issues before us on remand are: (1) Whether Benson was contributorily negligent, and (2) Whether the jury award of damages was adequate.

This accident occurred when the truck driven by Seagraves rear ended a tractor-trailer owned by the Louisiana Department of Transportation and Development.

CONTRIBUTORY NEGLIGENCE DEFENSE

Defendants do not claim this accident could have been avoided by plaintiffs action but rather they contend that his failure to use a seat belt contributed to the degree of injury he sustained.

In a series of cases, Louisiana courts have addressed the issue of negligence arising from the failure to use a seat belt. See Williams v. Harvey, 328 So.2d 901 (La.App. 1st Cir.1976); Wiggins v. Chrysler Motor Company, 271 So.2d 551 (La. App. 1st Cir.1972); Fontenot v. Fidelity & Casualty Company of New York, 217 So.2d 702 (La.App. 3rd Cir.1969); Lawrence v. Westchester Fire Insurance Co., 213 So.2d 784 (La.App. 2nd Cir.1968); Myles v. Lee, 209 So.2d 533 (La.App. 2nd Cir.1968). In each case the court refused to find contributory negligence for the failure to wear a seat belt.

Many other jurisdictions have addressed the issue of “seat belt defenses”. Clearly, the dominant view in American jurisprudence is that the failure to wear a seat belt does not constitute contributory negligence. The view taken by the Louisiana courts is in accord with this general proposition. Thus, on the record before us, we cannot say that plaintiffs failure to wear a seat belt amounted to contributory negligence which would bar his recovery.

QUANTUM

Plaintiffs injuries were sustained when the pickup truck in which he was riding collided into the rear of a large flatbed truck. The impact propelled Benson’s face into the cowling of the pickup’s dash and crushed one ankle against the fire wall. Although the extent of plaintiff’s damages is in dispute he claims that the injuries suffered consisted of: (1) Loss of sight in one eye, (2) Facial disfigurement, (3) Loss of sense of smell, (4) Permanent disability in the use of one ankle, and (5) Brain injury. In compensation of these injuries the jury awarded plaintiff $125,000.00. Plaintiff seeks an increase of this award claiming that it is not adequate.

La.C.C. Art. 1934(3) provides that in the assessment of general damages, “much discretion must be left to the judge or jury * * In elaborating on the methodology of appellate review of awards for general damages the Louisiana Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), stated that:

“... before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” Coco, at 335 (citations omitted).

Thus, the analysis should be directed toward whether the factfinder has abused his/their much discretion in compensating the plaintiff for this particular injury taking into consideration the effect such injury had on this particular plaintiff.

“It is only after [an] articulated analysis ' of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.” Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

After analyzing the facts in this case we find that the jury did not abuse its discretion in making its award.

Special damages consisting of past lost wages and medical expenses in the amount of $24,407.00 were proven by plaintiff. Subtracting that amount from the total award it can be seen that the jury awarded plaintiff $100,593.00 in general damages.

As to plaintiff's claim of brain injuries, the only evidence supportive of the proposition is found in the testimony of plaintiff and his wife to the effect that he was more forgetful than before the accident and that subsequent to the accident he suffered personality changes. The record shows that the disability to plaintiffs right eye results in his merely being able to distinguish shapes in that eye, and that there is some disfiguration because the right eye is now lower than the left. Additionally, he has lost the sense of smell and has a 25% disability of his right ankle.

The jury in the lower court spent three days observing Mr. Benson. They saw him testify on two different occasions. They heard him state that he is still engaged in the same position of employment and that in fact he is presently earning more than he was subsequent to the accident.

There is no doubt that Mr. Benson suffered serious injuries, however, strapped as we are by the mandates set out in Coco, supra, and its progeny, and applying the formula set out therein, we would be juris-prudentially in error if we increased plaintiffs award in general damages. It may very well be, had we been the trier of fact, that plaintiffs award would have been higher. This cannot, however, cause us to say that plaintiffs award was an abuse of discretion. Por as we earlier stated, the question on appeal is not whether we consider the award appropriate but whether the jury has abused its discretion in making the award.

We must assume that the jury considered all of the evidence before it and with that in mind we cannot say the jury has abused its discretion by making the above stated award.

For the above and foregoing reasons the judgment of the trial court is affirmed. The plaintiff-appellant is to pay all costs of these proceedings.

AFFIRMED.

      . 427 So.2d 1200 (La.1983).

      . Published as Benson v. Seagraves, Jefferson Davis Electrical Cooperative, Inc., and United States Fidelity & Guaranty Company, 1983, 436 So.2d 525 (La.1983).

      . The original defendants third-partied the Louisiana Department of Transportation and Development, owner of the tractor-trailer, and its insurer, Travelers Insurance Company. This action was later dismissed on a motion for summary judgment filed by the third party defendants.

      .For an excellent overview, see "Failure to use Automobile Seat Belts” 92 A.L.R.3rd 9 (1979).


author: STOKER, Judge.

text:
    Stephen J. SAUCIER, et al., Plaintiffs-Appellees, v. Alton A. BELGARD, Defendant-Appellant.
    No. 82-609.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Alton A. Belgard, in pro. per.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, Raggio, Cappel, Chozen & Berniard, Chris Trahan, Lake Charles, for plaintiffs-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit for personal injury damages sustained by plaintiff, Stephen J. Saucier. Defendant, Alton A. Belgard, inflicted the injuries by shooting plaintiff three times with a pistol. Belgard was convicted of attempted second degree murder and his conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Belgard, 410 So.2d 720 (La.1982.)

The trial court awarded plaintiff $75,000 in general damages and $1757.42 in special damages. Defendant appealed. We affirm.

Able counsel represented defendant-appellant at the trial of this damage suit, but he represents himself in this appeal. Defendant has filed a brief before this court in proper person. We will give defendant-appellant the benefit of attempting, as best we can, to discern the substance of his defenses as he states them. In order to deal with these defenses we will first set forth in its entirety the well written reasons for judgment handed down by the able trial judge:

“REASONS FOR JUDGMENT
“Plaintiff, Stephen J. Saucier, brought this suit against defendant, Alton A. Bel-gard, seeking damages for injuries sustained by him in a shooting incident.
“On August 30, 1980, Stephen J. Saucier, and his two children by a previous marriage were visiting at the home of Judy Belgard and her two children, Angela and Robert. The home was located at 5526 Holloway Road in Pineville, Louisiana.
“Angela was at home with her mother that day. Robert was visiting with his father, Alton A. Belgard, the estranged husband of Judy Belgard, and would be returning home later that evening.
“Mr. Belgard and his wife had been separated for some time, and Mr. Saucier and Mrs. Belgard had been seeing each other socially. Mr. Belgard was known to his wife to be very jealous and to have a very volatile temper.
“When Mr. Belgard brought Robert home that evening and entered the house, Mr. Saucier and his children were still there. Immediately, Mr. Belgard became abusive and attacked Mr. Saucier. Mr. Saucier proved to be too much of a match for Mr. Belgard, so he drew the .38 caliber handgun which he had concealed in his clothing and shot Mr. Saucier three times.
“The first shot hit Mr. Saucier in the right leg knocking him to the ground. Then, Mr. Belgard shot him twice more in the back, hitting him in the left shoulder and the neck. The bullet that entered at the base of the neck to this day remains lodged in the hilum of the lung not far from Mr. Saucier’s heart. (Footnote omitted.)
“Mr. Saucier was conscious the entire period of the shooting and was in great pain. He was also aware that his two children were witnessing this brutal attack. He suffered pain and discomfort for the entire three days that he was hospitalized.
“Mr. Saucier was forced to miss four (4) full weeks of work and could only perform some of his assigned duties for two (2) other weeks during his recuperation.
“Aside from having the potential life threatening bullet still lodged in his chest, Mr. Saucier’s main complaint upon leaving the hospital was pain and tenderness in his left arm along the ulnar side of the forearm with generalized numbness and tingling of the entire extremity.
“This problem continued for about a month when Mr. Saucier’s treating physician Dr. Villemez referred him to a neurosurgeon, Dr. Babson Fresh.
“Dr. Fresh’s examination revealed a marked hypersensitivity to both light touch and pin prick beginning approximately 10 cm. above the olecranon and extending down to within 4 cm. of the wrist.
“In October 1981, Mr. Saucier complained that his arm had not improved at all in the past year. Dr. Fresh then referred Mr. Saucier for further evaluation to Dr. David Kline, an expert in neurosurgery at LSU Medical Center in New Orleans. Dr. Kline in his report to Dr. Fresh stated:
‘I think his injury has occurred, most likely, at a C8, dorsal 1 root to the lower trunk level rather than a mere peripheral level. I do not think that an operation would improve this situation and since there would be some risks involved with it, I certainly would not advise that. I think that with further time, his mild deficit should improve further.’
“There is no telling just how long it will take for the condition in Mr. Saucier’s arm to heal, if indeed it ever will completely heal.
“Defendant’s attack on plaintiff was unprovoked and was an intentional tort.
“There will be judgment in favor of plaintiff and against defendant for $75,-000.00 general damages for his pain, suffering, embarrassment, mental anguish and physical disability, and for $1,757.42, the proven special damages.
“Expert witness fees in the amount of $125.00 for Dr. Fresh and $100.00 for Dr. Villemez will be taxed as costs.
“All costs to be assessed against defendant.
“Alexandria, Louisiana, this 15th day of June, 1982.”

DEFENDANT-APPELLANT’S POSITION

A formal written petition for appeal was filed on defendant’s behalf by his trial counsel with a motion to proceed in forma pauperis. An order of appeal was signed granting a devolutive appeal and defendant was permitted to proceed in forma pauper-is. Defendant-appellant filed with this court a pleading denominated “PETITION FOR WRITS OF CERTIORARI, PROHIBITION AND MANDAMUS” in which he asks for reversal of the trial court and rejection of plaintiff’s demands. Inasmuch as defendant-appellant is before this court on a regular appeal, we treat his pleading as his brief on appeal. The substantive portions of that pleading are as follows:

“HI
“This judgment was the result of a confrontation that Mr. Stephen J. Saucier had with petitioner on August 30, 1980, at the residence of Mrs. Judy Belgard. This confrontation left Mr. Saucier with three bullet wounds. Mr. Saucier was Hospitolize (sic) for about three (3) days, and approximately for one (1) year there after had to go to have check ups by docters. (sic)
“IV
“Petitioner is appealing the judgment awarding Mr. Saucier $76,757.42 from the Ninth Judicial District Court, Parish of Rapides which is too much; in the Judge’s reason for judgment he stated that (page 2, lines 7-9) Mr. Saucier was forced to miss four (4) full weeks of (sic) and could only -perform some of his assigned duties for two (2) other weeks during recuperation. Mr. Saucier stated during trial that (page 128 Line 30 & 31, and page 129, line 1-5) Q. Now during that time you did not lose any wages, is that right? A. No I did not. Q. And do you know why you didn’t lose any wages? A. The company, as a policy, doesn’t do that. They ... you know, their key personnel, they take good care of them. So Mr. Saucier was granted a not so needed rest.
“V
“Petitioner attest that the Rapides Parish Sheriff Department, nor his counselor ran a check on the gun that Mr. Saucier was shot with to determine who the gun belonged to which was very important to petitioner’s defense and by not doing so damaged petitioner’s defense beyond repair”
“VI
“Petitioner ask This Honorable Court to put themselves in his position on the night of August 30, 1980. Petitioner walks into the front door with anticipation of the enjoyment he will receive with his son at the movie later that evening. Then, without warning he is confronted with the reality of his eleven (11) year old daughter sitting on a man’s knee and from where petitioner is standing look like he is molesting his daughter. Petitioner (sic) reaction was that of any father similar situated!
“VII
“In the instant case, there are numberous (sic) of error that are ‘plain’ on the face of the record and this Court has the power to rule on these errors. Petitioner invokes the ‘Plain Error Doctrine’, and would like for this Honorable Court to review all objection that was over ruled by the court.
“WHEREFORE, petitioner prays that there be judgment rendered in favor of petitioner, rejecting the plaintiff’s demands.”

LIABILITY ISSUE

In paragraphs V, VI, and VII defendant-appellant attacks the finding of the trial court that he committed an intentional tort in assaulting plaintiff for which he is legally liable. With reference to paragraph V quoted above, the record discloses that Mr. Belgard admits that he shot Mr. Saucier twice, but Belgard testified that Saucier shot himself first. The evidence preponderates in favor of the finding that Belgard shot Saucier three times, and Belgard was the only person who did any shooting. We presume that defendant’s assertions contained in paragraph V are meant to infer that he did not own the pistol he fired at Saucier and, perhaps, that the pistol belonged to Saucier. We fail to see how mere ownership of the weapon would be' material or significant so long as Belgard is found to be the aggressor. The preponderance of evidence indicates that Saucier greeted Belgard by extending his hand for a handshake and introducing himself. There is no evidence that Saucier was the aggressor. Belgard was clearly the aggressor.

In paragraph VI defendant-appellant attempts to excuse his actions. We are not at all impressed by Belgard’s suggestion that he thought his daughter was being molested by Saucier.

In paragraph VII defendant-appellant refers to “plain” errors on the face of the record and states he invokes the “Plain Error Doctrine”. We know of no such doctrine, but we state further that we note no errors plain on the face of the record.

QUANTUM ISSUE

Paragraph III and IV appear to be directed toward the special damages which were awarded in the amount of $1,757.42. Perhaps paragraph III may be interpreted as a complaint that the general damage award of $75,000.00 was too high. We are of the opinion that the trial court did not abuse its discretion in awarding this amount.

Paragraph IV of defendant’s brief appears to be a complaint of an award for lost income. The trial court awarded $1,757.42 in special damages, but we find that it includes no award for lost income. This amount is fully supported by bills in evidence for hospitalization, physicians’ services, medicines and other medical expenses. Therefore, no award for lost wages was made. We interpret the trial court’s comments in its reasons for judgment concerning the time lost from work as having been made to indicate the extent of Saucier’s injury and the length of time he was disabled that he could either not work at all or was on limited duty. It was not stated to support an award for lost wages, but rather to support the award for general damages.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ricky LEWIS, Defendant-Appellant.
    No. CR82-718.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 16, 1984.
    Edwin O. Ware, Jr., Dist. Atty., Guy Humphries, Camille Giordano, Asst. Dist. Attys., Alexandria, for plaintiff-appellee.
    Evelyn Oubre, Rogers, St. Romain & Ou-bre, Lake Charles, for defendant-appellant.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

On August 16, 1982, defendant, Ricky Lewis, pleaded guilty to two counts of simple burglary, a violation of LSA-R.S. 14:62. Before sentencing, the Court ordered a pre-sentence investigation conducted. On October 7,1982, the Court imposed a sentence of eight years for each count, with the sentence to run consecutively. Subsequently, the defendant filed an appeal in this Court, urging as error the excessiveness of his sentence. Despite this Court’s correspondence to the defense counsel of record, on two separate occasions, no formal assignments were ever made a part of the appellate record before the Court. LSA-C.Cr.P. art. 844.

The jurisprudence of this state requires a formal assignment of error to preserve the issue of excessiveness of sentence for appellate review. State v. Cox, 369 So.2d 118 (La.1979). In State v. Mouton, 319 So.2d 331 (La.1975), the court ruled “that in the absence of objection at the time, LSA-C.Cr.P. art. 841, and of formal assignment of error or bill of exception, LSA-C.Cr.P. art. 920(1), this Court cannot review the record except for errors discoverable on the face of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. art. 920(2). Accordingly, on April 13, 1983, after reviewing the case for errors patent on the face of the record, this Court rendered its opinion affirming the defendant’s convictions and sentences. 431 So.2d 125.

The defendant secured the services of a new attorney for the purposes of filing writs of certiorari to the Louisiana Supreme Court from the affirmance of his conviction by this Court. Defendant’s writ application was granted on September 16, 1983, 437 So.2d 1144, and the matter was remanded to this Court for a decision as to the issue of excessiveness of defendant’s sentence after permitting the defendant to file an assignment of error in accordance with law. The defendant has since perfected one assignment of error, to wit: that the sentence imposed upon the defendant was excessive.

The facts involved in this case are discernible only from the transcript of the proceedings of the defendant’s guilty plea. The defendant admitted that he committed two separate burglaries of two different vehicles upon two distinct occasions, and that he suffered from a severe drug and alcohol abuse problem. At the time of the offense charged herein defendant was only eighteen years old, free on bail pending other burglary charges against him. His co-defendant, James Clark, estimated the appellant had been involved in over 100 burglaries in the central Louisiana area.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court determined that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review of his conviction. A sentence has been determined to be constitutionally excessive when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique position of viewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Pyron, 438 So.2d 1183 (La.App. 3rd Cir.1983); State v. Howard, 414 So.2d 1210 (La.1982).

Before sentencing, the defendant informed the trial judge that he had previous sentences pending against him, i.e., “one year with five years probation and go to a drug rehab for five years. And in Lees-ville, I’ve got two years_run consecutive.” The trial judge noted that the defendant had a history of criminal behavior with his pleading guilty to the reduced charge of simple burglary, and that he had been arrested for burglaries in Grant and Vernon parishes. He also noted that while out on bond on these charges, the defendant had continued to commit burglaries in Rapides Parish. Recognizing that defendant had a drug and alcohol problem, he found that defendant had no employment record. The Court also found that there were no mitigating circumstances whatsoever which would have indicated the defendant might have changed his conduct if leniency had been granted. Thus, the trial judge sentenced defendant to serve eight years at hard labor for each count, with the sentences to run consecutively.

Where the defendant is convicted of two or more offenses based on a common scheme, the terms of imprisonment shall be served concurrently unless the court expressly directs the sentence be served consecutively. LSA-C.Cr.P. art. 883. Although not required, the sentencing judge should explain the reasons for imposition of consecutive sentences. State v. Gage, 399 So.2d 1174 (La.1981). Concurrent rather than consecutive sentences are the general rule for convictions arising out of a single course of action at least for a defendant without a previous criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Ortego, 382 So.2d 921 (La.1980); State v. Underwood, 353 So.2d 1013 (La.1977). Consecutive sentences are not per se excessive, rather other factors must be considered. State v. Molinario, 400 So.2d 596 (La.1981).

The maximum penalty for simple burglary is a fine of two thousand dollars, imprisonment, with or without labor, for not more than twelve years, or both. LSA-R.S. 14:62. Thus, each sentence imposed by the trial judge was within the statutory limit for this crime. As aforementioned, the defendant has a long record of criminal activity. It cannot be said that the penalties imposed in this case are not so disproportionate to the severity of the crimes involved as to shock this court’s sense of justice. As was stated earlier, a trial judge’s decision to impose a sentence within statutory limits should not be disturbed on appeal in the absence of a manifest abuse of discretion. Pyron, supra. We are unable to find any manifest abuse in this case. Accordingly, defendant’s sentence is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the affirmation of this sentence, but feel, with all due respect, that if La.C.Cr.P. 841 were correctly followed, this appeal should have been put to rest with our April 13, 1983, opinion. La.C.Cr.P. 841 is clear and unambiguous. If a sentence is excessive, how can we say that its imposition is not an “irregularity” or “error” under 841, requiring an objection and assignment of error contemporaneously? No where in 841 or the official revision comments thereunder do I perceive the faintest hint which would exempt a displeased defendant from objecting contemporaneously to his sentence, in order to reserve his appeal rights on that subject.

I concur further to again state my disagreement with the jurisprudence on the necessity of reviewing sentences for exces-siveness so long as the sentence is within statutory limitations. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied (La.1983); State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983).


text:
    Reven L. FONTENOT, Plaintiff-Appellant, v. MEMPHIS FARMS, INC., et al., Defendants-Appellees.
    No. 83-197.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Boatner & Luke, Peter J. Lemoine, Bunk-ie, for plaintiff-appellant.
    Lauve & Hill, Lewis 0. Lauve, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This suit arose out of a contract of lease entered into between plaintiff-appellant, Reven L. Fontenot, and defendants-appel-lees, Memphis Farms, Inc. and J.R. Young. Plaintiff claimed breach of contract and asked for damages allegedly resulting therefrom. Defendants (hereinafter referred to in the singular) reconvened claiming damages as a result of the plaintiff’s nonperformance of his obligation under the terms of the lease. The jury rejected the claims of both parties. Plaintiff has appealed, defendant has answered the appeal, and we affirm.

FACTS

The plaintiff leased some 1,324 acres of farm land in Avoyelles Parish, Louisiana, from the defendant on a share crop or percentage basis. The lease agreement provided that plaintiff would plant rice on the land and the defendant was to receive 35% of the crop as rent. The lease further provided that defendant — lessor was to furnish two water wells on the property for the plaintiff-lessee’s use. The fact that defendant did not furnish these wells is the basis of this lawsuit, as plaintiff claims that the absence of the water wells caused him damages totalling approximately $250,-000.00.

ARGUMENT

Basically, plaintiff claims that due to a lack of sufficient water, his crop fell below the expected yield, and the rice which was harvested was of a substandard grade. The defendant takes a contra position, un-ing that the water shortage, if indeed there was one, played no part in the reduction of yield or the inferior quality of the rice crop. There is evidence in the record supportive of both positions.

As to plaintiffs contention, most of his evidence consisted of the testimony of Mr. David E. Black, who is an agricultural consultant with special emphasis in the area of rice cultivation. Mr. Black was accepted by the Court as an agricultural expert, after which he testified that from his observance of the crop, the rice had suffered due to a lack of water.

To oppose this position the defendant offered evidence that, if indeed the crop was poor for the area and year involved, any damage done to the appellant’s crop was caused by other factors. First, defendant contends that the rice was planted too late. There was evidence in the record that plaintiff planted some of his rice on June 27, June 29, and July 6. These dates are important because the evidence, including expert testimony, established that for the best yield, rice should be planted before April 15th. Secondly defendant contends that the deviation in elevation of appellant’s fields contributed to the allegedly poor outcome of the rice crop. The record establishes that a variation between 2.4 and 3 inches in a field’s elevation is the optimum deviation for growing rice. The result of the elevations measured by a civil engineer show some of plaintiff’s fields differed as much as 12 to 16 inches in elevation. Mr. Black, plaintiff’s own expert, testified that “12 inches is too much.” Thirdly, defendant claims that because plaintiff was late in his planting, overall the fields were hastily prepared. Defendant further claims that plaintiff’s water needs were adequately provided for by the water from a nearby bayou and from water acquired from a neighboring farmer.

It is thus clear that there is evidence in the record to support the contentions of both parties. Nevertheless “the plaintiff has the burden of proving the damage he suffered as a result of the breach of contract. Campbell v. Lelong Trust, 327 So.2d 533 (La.App. 2nd Cir.1976), writ denied, 331 So.2d 494 (La.1976); Koncinsky v. Smith, 390 So.2d 1377 (La.App. 3rd Cir.1980).” (Emphasis added).

Although plaintiff did offer some evidence of this fact, the jury decision indicates it did not. believe, if in fact it believed plaintiff has suffered any damage, that these damages resulted from the breach. An “appellate court should not disturb such a finding of fact unless it is clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). We cannot say that the jury determination in this case was clearly wrong.

Likewise the jury’s denial of recovery on defendant’s reconventional demand indicates that the jury did not believe he sustained his burden either. Because there is evidence supportive of both sides we cannot say that this determination is clearly wrong any more than we can say that the factfinders’ determination was clearly wrong on the main demand. The jury simply did not believe either party proved that they suffered damages as a result of the other’s acts or omissions.

DECREE

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs on appeal are assessed against plaintiff-appellant, Reven L. Fontenot.

AFFIRMED.

      . The lease between the parties provides:
      "Lessors shall at their expense do the following, to-wit:
      Timely furnish all of the water necessary to make the crop and thirty-five (35%) per cent of chemicals to be used in making of said crop; furnish two (2) pumps and two (2) water wells, one of which is to be an eight (8") inch well and the other a fourteen (14") inch well; one (1) of said wells is to be available and in operation not later than ten (10) days from the date hereof, and the other is to be available and in operation not later than fifteen (15) days from the date hereof; shall at all times maintain said water wells and furnish fuel for same; furnish all canals, canal levies and piping necessary to control water in the making of said rice crop; timely rework and maintain all of said canals. Water wells are to be operated by Lessee.”

      . Mr. Carlton Aguillard, after being accepted by the Court as an expert in the area of rice production, testified that his land adjoins the defendant's property and that in the year in question he produced only about Moths of a barrel more per acre than the plaintiff. Mr. Aguillard further testified that he had all the water he wanted or needed during the year in question.

      . Defendant’s Exhibit-8, a brochure of the Louisiana Co-Operative Extension Service directed to Louisiana rice producers provides that the most desirable planting days in South Louisiana range from March 20 through April 15, and in North Louisiana from April 1 through April 15. It concludes that plantings made in June suffer considerable reduction in yield.

      . As used among rice producers the term "field” means that area enclosed within one levee.

      . It is not clear if the defendant assigns as error the jury’s determination on his reconventional demand, for although he summarily discusses this in his brief, in conclusion he states: “The jury found the parties were even. It is submitted their verdict is manifestly correct.” Therefore, it seems that defendant agrees with the findings of the jury.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joseph S. GARY, Defendant-Appellant. STATE of Louisiana, Plaintiff-Appellee, v. Joseph S. GARY, Defendant-Appellant.
    Nos. CR83-227, CR83-228.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    L. Paul Gianfala, Lafayette, for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., W.J. Riley, III and Jacquelyne Heinen, Jennings, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Defendant, Joseph S. Gary, was charged by bill of information with two counts of aggravated rape (our docket number CR83-227) and two e'ounts of incest (our docket number CR83-228). The two cases arise out of incidents occurring between defendant and his two nieces, ages 10 and 7. The two cases were consolidated for trial. A jury of twelve tried the cases and found the defendant guilty of two counts of attempted aggravated rape and on two counts of attempted incest. The trial judge sentenced • the defendant to serve fifteen years at hard labor on each count of attempted aggravated rape; two and one-half years at hard labor were imposed for each conviction of attempted incest, and all four sentences were ordered to be served concurrently.

Defendant appealed the convictions upon the basis of eleven assignments of error, three of which have been abandoned. However, finding merit to two of defendant’s assignments, we pretermit addressing the remaining ones and are compelled to reverse all convictions.

ASSIGNMENT OF ERROR IN CR83-227 (Charges of Aggravated Rape)

The defendant was charged by bill of information with two counts of aggravated rape. Following his pleas of not guilty, the defendant was tried upon those charges and found guilty as to each on the lesser crimes of attempted aggravated rape.

. Article 1, Section 15 of the Louisiana Constitution of 1974 provides in pertinent part as follows:

The crimes of aggravated rape, with which defendant was charged by bill of information, carry mandatory penalties of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Our Constitution mandates that the prosecution of individuals “held to answer” for crimes punishable by life imprisonment shall be initiated by a grand jury indictment. State v. Donahue, 355 So.2d 247 (La.1978); State v. Stevenson, 334 So.2d 195 (La.1976); State v. Lott, 434 So.2d 1274 (La.App. 1st Cir.1983).

“Prosecution of a felony shall be initiated by indictment or information, but no verson shall be held to answer for a capital crime or a crime punishable by life imprisonment except on in- ■ dictment by a grand jury_” (Emphasis ours.)

It was, therefore, reversible error for the State to initiate its prosecution of the aggravated rape charges by bill of information, notwithstanding the fact that the jury returned verdicts of guilty to crimes which are not punishable by life imprisonment. Accordingly, the two convictions and sentences for attempted aggravated rape must be reversed and dismissed.

ASSIGNMENT OF ERROR IN CR83-228 (Charges of incest)

At trial, all of the charges against defendant were consolidated, and he was tried by a twelve person jury. This constituted an error fatal to the charges of incest.

Article I, Section 17 of the Louisiana Constitution of 1974 provides in pertinent part:

“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six ver-sons _” (Emphasis ours.)

The crime of incest between an uncle and his niece is punishable by a fine of not more than one thousand dollars or by imprisonment, with or without hard labor, for not more than five years, or both. LSA-R.S. 14:78. Accordingly the Constitution mandates that the defendant be tried on the crimes of incest before a jury of six persons; any other jury size is improper and any verdict rendered by an improper jury is a nullity. State v. Marcantel, 388 So.2d 383 (La.1980); State v. Nedds, 364 So.2d 588 (La.1978); State v. Pollard, 438 So.2d 1208 (La.App. 3rd Cir.1983). As defendant was tried before a jury of twelve, rather than the constitutionally required number of six, his convictions for the crimes of attempted incest must be reversed and remanded for a new trial.

For these reasons, defendant’s convictions and sentences in CR83-227 for the two separate crimes of attempted aggravated rape are reversed and dismissed.

Further, defendant’s two convictions and sentences in CR83-228 for the crimes of attempted incest are reversed, and this case is remanded to the district court for a new trial.

REVERSED AND REMANDED.

      . Defendant also contends that the trial court erred by denying his motion to proceed in for-ma pauperis. Such a motion was filed on November 14, 1983, but the record fails to reflect that any action was taken by the trial court. Therefore, this issue is not before us.

      . See LSA-C.Cr.P. art. 382.

      . Attempted aggravated rape is punishable by imprisonment at hard labor for not more than fifty years. LSA-R.S. 14:27(D)(1). We cannot, as suggested by the State, allow considerations of “precious judicial time and community and state funds” to override the constitutional protections afforded the accused.

      . See LSA-C.Cr.P. art. 782.

      . We recognize that, even though we dismiss the charges in this case, the State may further proceed according to the provisions of LSA-C.Cr.P. art. 576.


author: LABORDE, Judge.

text:
    ADOPTION OF Alexa Renee KITLER, Plaintiff-Appellee, v. Sheryl Ann KITLER, Defendant-Appellant.
    No. 83-277.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 23, 1984.

      Caskey & Pizzolatto, Nick Pizzolatto, Jr., Lake Charles, Adam Ortego, Sulphur, Lester Robertson, Lake Charles, for plaintiffs-appellees.
    James E. Burks, Lake Charles, for defendants-appellants.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

In this proceeding for voluntary surrender and adoption of a minor, petitioners, Howard Cureton and Celia Jane Johnson Cureton, husband and wife, were granted an interlocutory decree of adoption. Sheryl Ann Kitler (natural mother) appeals the order contending that the voluntary surrender which she signed is invalid for want of consent and proper authentication. The trial court held that: 1) the act of surrender was valid and binding; 2) it was in the best interest of the child that the adoptive couple be granted custody and an interlocutory decree of adoption. We affirm.

FACTS

Petitioners seek to adopt a girl, Alexa Renee Kitler, eighteen months old. On September 17, 1982 the child was placed in custody of the adoptive couple following the execution of a document by the natural mother, Sheryl Ann Kitler, entitled “AUTHENTIC ACT OF VOLUNTARY SURRENDER AND CONCURRENCE TO PRIVATE PLACEMENT AND ADOPTION IN ACCORDANCE WITH ACT 686, THE 1979 LOUISIANA LEGISLATURE”. LSA-R.S. 9:422.3 et seq. The adoptive couple subsequently petitioned the court for an interlocutory decree of adoption and custody. On October 14, 1982 Miss Kitler executed a “REVOCATION OF CONSENT AND ADOPTION OF THE MINOR CHILD” and on October 22, she petitioned the court for a Writ of Habeas Corpus demanding return of the child. The attempted revocation was without effect and the writ denied.

The trial court then conducted a hearing to determine the authenticity and validity of the voluntary surrender executed by the natural mother. Upon consideration of testimony adduced from several witnesses, the trial judge ruled that the act of voluntary surrender was properly executed and binding. In the course of this two and one-half day hearing, the court further determined that it was in the child’s best interest that she remain in custody of the adoptive couple and accordingly rendered an interlocutory decree of adoption.

The issues presented on appeal are:

1) Whether the act of voluntary surrender executed by the natural mother on September 17, 1983 is valid in form and effect, and;
2) Whether the interlocutory decree granting custody to the adoptive couple represents the best interest of the child.

ISSUE # 1: FORMAL ACT OF SURRENDER

Miss Kitler contends that the act comporting voluntary surrender is invalid since it was not executed in authentic form in conformity with the stricti juris requirements of LSA-R.S. 9:422.3 et seq. Namely, the document was not signed by her in the presence of a notary and two witnesses. LSA-C.C. art. 2234. We disagree.

The record contains replete and credible testimony which clearly and convincingly shows that the document was executed in the presence of a notary and two witnesses. One of the witnesses testified as to the exact location recalling that both witnesses saw Miss Kitler sign. The notary testified that Miss Kitler did, at minimum, confirm her signature in the presence of the witnesses and notary. He was almost certain, however, that she signed the document in their presence.

We are compelled to doubt the veracity of Miss Kitler’s testimony concerning this contention in light of the many inconsistent statements and accounts given by her in this proceeding. This is especially notable where the trial judge stated:

“THE COURT: Well, her credibility, of course, is—every witness’ credibility is considered by the Court, so I’d have to be an idiot if I didn’t recognize that she lied yesterday, when I was the judge that heard it. She’s before us today and I think you can ask her” (Tr. 196)

The trial court properly attributed greater weight to the testimony of the notary and witness to the act of surrender in determining its authenticity. We find no abuse of discretion in this factual determination and are therefore unable to disturb the trial court’s finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Miss Kitler argues that she was not represented by competent counsel when she signed the’ document as required by LSA-R.S. 9:422.7. Again, the record establishes that Miss Kitler discussed the legal ramifications of the document with her attorney, Harold Thibodeaux, for at least one hour, immediately before signing the document. Mr. Thibodeaux read the original document aloud to Miss Kitler as she followed with a copy. He also informed her as to the law concerning the matter and specifically read the applicable provisions and discussed them with her. We hold that she was adequately represented and fully aware of the express effects and import of the document.

Following the execution of the voluntary surrender, James Allen Stahl, formally acknowledged the child, Alexa, and claimed to be her natural father. Miss Kitler finally contends that pursuant to LSA-R.S. 9:422.4, Mr. Stahl’s signature, as father, was necessary to validate the voluntary surrender. This contention is without merit since Mr. Stahl stated at trial that he did not really believe the child was his. He further indicated that his principal motive in signing the formal acknowledgment was to aid Miss Kitler in regaining custody of the child.

Clearly, the requisite consent necessary to validate an act of surrender for adoption must be express and unequivocal. In re G.O., 433 So.2d 1115 (La.App. 3rd Cir.1983). Adoption laws, being in derogation of natural rights must be strictly construed in favor of the natural parents. In re CDT, 415 So.2d 315 (La.App. 2nd Cir.1982).

Upon full and thorough review of the document, and based upon all evidence presented, we find that the guidelines of LSA-R.S. 9:422 et seq. have been complied with, stricti juris. Therefore, the trial court properly held the act of voluntary surrender to be valid.

ISSUE #2: BEST INTEREST OF THE CHILD

The best interest of the child is the major standard to which a court must look before, it can determine when or whether to order an adoption. LSA-R.S. 9:432; Adoption of Latiolais, 384 So.2d 377 (La.1980). Even where the statutory requirements for adoption are met, the adoption may be denied in order to serve the best interest of the child. We determine each case in accordance with its own facts recognizing the great discretion of the trial court. Factual findings and judgments may not be disturbed in the absence of clear abuse of that discretion. Jordan v. Department of Public Welfare, 442 So.2d 904 (La.App. 3rd Cir.1983).

In the instant case, the trial court held that it was in the child’s best interest that the interlocutory decree of adoption be rendered, granting the adoptive couple custody of the child.

The record substantially supports the trial court’s findings of fact and ruling. Throughout the adduced testimony, it is apparent that Sheryl Ann Kitler has not maintained employment for any consistent period of time, and that she engages in prostitution and drug use. There is evidence of child neglect, in that the child, Alexa, was made to sleep on the floor at certain apartments where Miss Kitler transiently resided with boyfriends. On one occasion the child was neglected to the extent that she was severely burned on the hand from an open heater which resulted in necessary hospital attention.

Conversely, Mr. and Mrs. Cureton are well-adjusted parents with sufficient resources and employment skills to adequately and abundantly provide materially for the child. Their testimony, as well as others, indicates that the child has adjusted well to her new and stable environment and has responded by improving in her physical and mental well-being.

Mr. Cureton is a college graduate and has completed one year of additional studies towards his master’s degree. He is self-employed and is the proprietor of a well-established business, Cureton Metal & Air Conditioning. Mr. Cureton’s financial income of $92,000 per year is adequate and allows for Mrs. Cureton to remain at home to care for Alexa and a formerly adopted child, Blake. Mr. Cureton indicated at trial that he loves Alexa and that she calls him “dad”. He assists his wife by bathing, babysitting and changing the child’s clothing. He and his family attend First Baptist Church of Westlake and he attests that Alexa is well-adjusted and friendly to his whole family. Mr. Cureton indicated that Alexa did not sleep all night at first, but now she does. She plays and gets along very well with her brother, Blake.

Mrs. Cureton is a high school graduate with six semesters of college. She does not work outside of the home. Mrs. Cure-ton testified that Alexa is no longer scared of her playpen and sleeps well at night. They go to church regularly and plan to give Alexa, as well as Blake, a proper education and healthy family environment.

Based upon these facts and evidence presented in the record, we hold that it is in the child’s best interest to remain in custody of the adoptive parents, Mr. and Mrs. Cureton.

Accordingly, for the above and foregoing reasons the trial court rendition of the interlocutory decree of adoption is affirmed at appellant’s cost.

AFFIRMED.