text:
    STATE of Louisiana, Appellee, v. Charles Wayne JOHNSON, Appellant.
    No. 15585-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Samuel Thomas, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., H. Russell Davis, Asst. Dist. Atty., Arcadia, for appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Charles Wayne Johnson appeals his conviction by unanimous jury verdict of forcible rape (LRS 14:42.1). He contends the trial court erred in refusing a continuance, denying a motion to suppress an in-court identification, and admitting into evidence his latent fingerprint. We affirm.

The rape occurred at the home of the 80-year-old victim in the early morning hours of September 4, 1976. The rapist entered the victim’s house through a back window. He raped the victim in her bedroom, then blindfolded her and raped her again in the woods behind her home. She hid from her assailant after he left her alone, took off the blindfold and stayed in some weeds until daylight. She then crawled to a nearby house where she obtained help from neighbors.

The sheriff and his deputies investigated the area and discovered a latent fingerprint on the inside of the window sill through which the rapist had entered the victim’s home. Deputy Poole lifted this print and placed it in his file. The victim gave the police a general description of the rapist. A search was begun for defendant, who lived in the area and fitted the description. This search was unsuccessful because defendant had departed the community. On September 13,1976, the grand jury returned a true bill indicting the defendant on charges of aggravated rape and armed robbery. The defendant was later found and arrested in Seattle, Washington, in 1982. Defendant’s fingerprint card was obtained by the Bien-ville Parish sheriff’s department. When defendant’s fingerprint was matched with the latent print, the defendant was transported back to Louisiana on June 14, 1982.

Counsel was appointed for defendant and a 72-hour hearing was held on June 15, 1982. CCrP 230.1. The state moved for a preliminary examination on June 17, 1982, to preserve and perpetuate the testimony of the victim. CCrP 296. This examination was held on June 25, 1982. A second preliminary examination was held on September 13,1982, at defendant’s request and the case was set for trial on September 21, 1982.

When defendant learned from the state that the victim was unable to testify and that the state would seek to introduce the video tape of her testimony, he moved for a continuance and moved to suppress her in-court identification of defendant at the preliminary hearing.

Arts. 294-296, CCrP, were designed to cover the exact situation presented by the victim’s age and physical condition. The victim’s doctor testified at the hearing on the motions on September 21 that he had examined the victim on September 16. The victim was then 86 years old, was suffering from congestive heart failure and arteriosclerosis, and her blood pressure was at a “dangerously” high level, all of which made the likelihood of a fatal stroke a “good possibility.” The doctor further opined that the victim’s condition would further deteriorate with age and that she would never improve to the extent that it would be medically safe for her to testify.

The purpose of the preliminary examination was to perpetuate the victim’s testimony after defendant had been indicted and arrested. Art. 296. Defendant’s appointed counsel, with defendant present, cross examined the victim at the hearing. Art. 294. Where the court finds that the witness is too ill to testify at the trial and that the absence of the witness was not procured by the party offering that testimony, the transcript of the witness’ testimony at the preliminary examination is admissible. Art. 295.

A trial court has much discretion in granting or denying a motion for continuance. State v. Washington, 407 So.2d 1138 (La.1981). CCrP Art. 709, cited by defendant’s counsel in support of the continuance, additionally requires that the moving party show the probability that an absent witness will be available at the time to which the trial will be deferred. Under the circumstances of this record, we find no error in the trial court’s rulings. Defendant was afforded his right to confrontation and cross examination. The victim was not available and, according to medical testimony, there was no probability that she would be available at a later time. The victim’s absence was not procured by the party offering her testimony.

We also find no error in the court’s ruling on the motion to suppress the in-court identification made by the victim of defendant during the preliminary examination. About two hours before the preliminary examination, defendant was placed in a lineup with four other persons before the victim, even though a pre-trial identification is not a legal prerequisite to in-court identification. His appointed counsel was present at the lineup. At the examination, the victim was asked by the state if she was able to recognize the person (that came to her house) in the lineup and if she recognized him in the courtroom. The victim answered:

“I think I could [recognize him] a little [in the lineup]
“I just wasn’t sure
“Yes, I think [that’s] the individual [I] saw at [my] house that night (in the courtroom)
“I thought it in [the lineup] but I just was afraid ... it wasn’t, because he’s changed so much. He’s growing a beard, had his hair cut, and I just wasn’t sure in yonder ...”

The victim testified that the light from three street lights came through the windows of her home and that it was light enough to see defendant and to recognize that the knife he was carrying was not hers. She described him as being taller than at the time of the rape. Her description of him after the rape was reasonably accurate about his size and complexion. The failure of the victim to make an “I’m-sure” positive identification at a lineup or in the courtroom bears on the weight and not the admissibility of the testimony. State v. Long, 408 So.2d 1221 (La.1982). We find no error in the court’s ruling on the admissibility of the identification procedures.

Lastly, defendant complains that the latent fingerprint from the window should not have been admitted because a complete chain of custody of the print was not established by the state. Reasonable connexity and proper identification of demonstrative evidence is all that is required for admissibility. The identification may be established either by testimony at the trial or by the chain of custody from the time the evidence was obtained until it is offered. State v. McCabe, 420 So.2d 955 (La.1982). The print was clearly, identified as defendant’s fingerprint by a competent witness. Additionally, the deputy (Poole) who lifted the print identified the print and his custody of the print. He turned the print over to another deputy (Raley) when he left the Sheriff’s employ. Raley testified as to his custody of the print thereafter. Each deputy testified that the print had not been tampered with. We find no error in the court’s ruling that the fingerprint was admissible evidence.

Defendant’s conviction is AFFIRMED.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Malcolm L. WHORTON, Appellant.
    No. 15611-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      J. Stacey Freeman, Bossier City, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

The defendant, Malcolm L. Whorton, was convicted by a jury of Possession of Marijuana with Intent to Distribute. (LSA— R.S. 40:966). He was sentenced to five years confinement at hard labor and to pay a fine of $1500 plus costs. We affirm the conviction and sentence.

On May 21,1982, a warrant was issued to search the residence and automobile used by “Michael Horton.” The warrant was based on information provided by a confidential informant describing “Horton’s” dealing in drugs and the defendant’s promise to obtain marijuana to sell on May 21, 1982. Forty-one bags of marijuana were seized pursuant to this search, as well as a pistol and various paraphernalia. As a consequence, Malcolm L. Whorton was arrested on the charge of Possession of Marijuana with Intent to Distribute, and was convicted after trial by jury.

In pursuing this appeal, defendant asserts that the trial court erred in (1) overruling the motion to suppress, (2) failing to comply with the sentencing guidelines of LSA-C.Cr.P. Art. 894.1, and (3) in imposing an excessive sentence.

With respect to the motion to suppress, the defendant contends that the warrant inadequately describes the residence to be searched. The residence in question is described in the warrant as: “First house on left, being a white frame house with window trim blue in color located on the Mosely Road approximately 2 miles West of Kickapoo on LA-5. Mosely Road turns south off of LA-5. Home is occupied by Michael Horton and parents.” It should be noted at this point that the search warrant and the affidavit in support thereof were not filed into evidence. The State offered and moved to introduce these items at the motion to suppress. However, immediately thereafter, the defense raised another issue and the admissibility of the warrant and affidavit were never ruled upon. The defendant made no objection to the State’s offering.

At the suppression hearing the only evidence presented was the defense testimony from Mr. Jim McClure, an investigator for the Caddo Parish Indigent Defender Office. Mr. McClure testified he was unable to locate the Whorton house from the description in the warrant. While Mr. McClure and both counsel made regular reference to the description in the warrant, the description at issue is not detailed in any question by either counsel or in any answer by Mr. McClure. Furthermore, by “adding up” parts of the description given in various questions and answers, we are still not able to determine from the transcript the full description rendered in the warrant.

Where the State has obtained a warrant and the defense contends that the warrant is defective, the burden of proving same is on the defense. LSA-C.Cr.P. Art. 703(D). State v. Scramuzza, 408 So.2d 1316 (La.1982). In failing to provide the description which it contends was defective, the defense has failed in its burden and this assignment therefore lacks merit.

Of course, we have the authority under LSA-C.Cr.P. Art. 914.1(D) to designate additional portions of the transcript which may be necessary for a full and fair review of assignments of error. The article, however, does not give us the power to supplement the record with items which are not part of the transcript or otherwise introduced in evidence; and neither the warrant or the affidavit were introduced at the trial itself. Only that which is in the record may be reviewed on appeal in criminal cases. See State v. Oubichon, 422 So.2d 1140 (La.1982), where the Supreme Court did not consider an issue on appeal because the defendant failed to introduce any of the lower court proceedings. See also, State v. Augustine, 252 La. 983, 215 So.2d 634 (1968), and State v. Hilaire, 216 La. 972, 45 So.2d 360 (1950). Since neither the search warrant or affidavit were introduced at the trial itself, we are without authority to supplement the record in this respect.

This assignment therefore lacks merit.

However, since it can perhaps be argued that the State’s action in offering the warrant and affidavit at the motion to suppress and the defense lack of objection thereto somehow operated to introduce the items in evidence even without a court ruling thereon, we have, in an abundance of caution, informally obtained a copy of the warrant in question. We determine that it sufficiently describes the place to be searched with the requisite particularity. U.S. Constitution Amendment IV; Louisiana Constitution of 1974, Art. 1, § 5; LSA-C.Cr.P. Art. 162. The purpose of the description particularity requirement in a search warrant is to prevent a search of the wrong premises. State v. Cobbs, 350 So.2d 168 (La.1977). The test for sufficiency of the description is set out in Cobbs, at page 171 as follows:

“If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient.”

Also, in State v. Petta, 354 So.2d 563 (La.1978), the Court stated:

“[A] description is sufficient when it reasonably enables the searching officers to ascertain and identify the place alone intended to be searched.”

In this cause, while there is some confusion in the description, it is apparent that the residence to be searched was not mistaken. We therefore find no merit in appellant’s first assignment, even if it can be said that the description complained of is properly before us.

Secondly, the defendant contends that the trial court erred in failing to follow the sentence guidelines of LSA-C.Cr.P. Art. 894.1. At sentencing, the trial court determined that the defendant would be likely to commit another crime if he were given a probated sentence, and that a lesser sentence would deprecate the seriousness of this offense. The Court stated the considerations upon which these conclusions were based. The primary factor related by the trial judge was the fact that a relatively large quantity of marijuana was found in the defendant’s possession. Also of import is his determination was the fact that the defendant indicated to the probation officer conducting the pre-sentence investigation that he had been selling marijuana for at least a year previous to the present offense. Finally, the Court expressed its overriding concern with the serious detrimental effect of the instant offense on victims other than the defendant himself.

In reviewing the mitigating factors, the Court found that §§ 7-11 as listed in Paragraph B of LSA-C.Cr.P. Art. 894.1 were applicable to the present case, but that these factors were outweighed by the aggravating considerations present. The record of sentencing shows that the trial court adequately complied with LSA-C.Cr.P. Art. 894.1 by stating for the record the considerations taken into account and the factual basis therefor in imposing sentence. Moreover, the sentence was particularized to the offender and to the offense.

Finally, the defendant contends that his sentence of five years imprisonment at hard labor and the additional fine of $1500 plus costs is excessive, citing State v. Bing, 410 So.2d 227 (La.1982), and State v. Touchet, 372 So.2d 1184 (La.1979).

In both of these cases, the defendants had no history of criminal convictions. Touchet was a 19 year old first offender involved in the sale of marijuana for the price of $1.00. Bing’s record prompted the probation officer who drafted his PSI report to recommend probation. In State v. Bing, the Court found the sentence was excessive because the trial judge did not weigh the mitigating factors in favor of the defendant. The Court stated as follows:

“In finding this sentence excessive, we specifically do not hold that four years at hard labor and a $3000 fine is, on its face, an excessive sentence for the possession of twenty-eight pounds of marijuana with the intent to distribute. We do find that the sentence is excessive on the facts of this case as we understand them.” Bing, supra, at 229.

Both the cases cited by the defendant involved ad hoc determinations which cannot be applied generally to every case. Moreover, in State v. Trahan, 425 So.2d 1222 (La.1983), 7 years confinement at hard labor was found not to be excessive for possession of marijuana with intent to distribute, where the defendant had been on probation from a suspended sentence for prior distribution of marijuana at the time of the offense.

Review of a sentence for exces-siveness, similarly to the original determinations for imposing sentence, should be done on an individual basis, considering the factual circumstances of the instant offense and the personal background of the offender. In the instant case it is clear that the defendant was a well-established street level dealer of marijuana for profit, and had been such for at least a year. Considering this fact and the extent of his operation as evidenced by the amount of marijuana seized, we cannot, say that a sentence of one-half of the maximum penalty allowed by law is excessive.

For the reasons aforesaid, the conviction and sentence are affirmed.

AFFIRMED.

      . The warrant in question contemporaneously authorized the search of a certain vehicle. It is unclear from the record where the 41 bags were found. The minutes indicate that Exhibit S-8 was a black plastic bag containing 30 bags of marijuana, Exhibit S-8-A was a brown paper bag containing one bag of marijuana and Exhibit S-8-B was a brown paper bag containing ten bags of marijuana. The transcript of the evidence itself was not furnished due to the nature of the assignments of error.

      . LSA-R.S. 40:966 establishes the maximum sentence for possession of marijuana with intent to distribute at not more than ten years at hard labor and the fine of not more than $15,-000.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Calvin L. DONALD, Appellant.
    No. 15614-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    Writ Denied Jan. 6, 1984.

      Sharp & Sharp by James Sharp, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty., Iley H. Evans, Asst. Dist. Atty., Columbia, for ap-pellee.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Defendant, Calvin L. Donald, was charged by Grand Jury indictment in the parish of Caldwell with aggravated rape. La.R.S. 14:42.; A twelve-member jury found him guilty as charged, and he was subsequently sentenced to life imprisonment at hard labor. On appeal of his conviction to this court, defendant asserts six assignments of error by the trial court. We will pretermit our discussion of the first assignment of error concerning sufficiency of the evidence until after consideration of the assignments of error relating to the admissibility of particular evidence.

Defendant Donald was convicted of having sexual relations with his five-year-old stepdaughter Tanika Walker, in violation of La.R.S. 14:42(4) which provides that:

Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) ...
(4) Where the victim is under the age of twelve years, lack of knowledge of the victim’s age shall not be a defense.

The following facts are disclosed by the record. Defendant’s wife Shirley Donald worked from 2:00 p.m. to 10:00 p.m. and defendant often cared for his two stepdaughters, Tanika and Sonja, ages five and three respectively, until she returned home. On May 16, 1982, when Mrs. Donald returned home from work shortly after 10 o’clock, she found Tanika, clad only in a nightgown, in bed with defendant, who was dressed in his undershorts. Three-year-old Sonja was in the girls’ bedroom alone. Mrs. Donald testified she considered this an unusual circumstance and Tanika appeared to be shaking and upset, which prompted her to question the child as to whether the defendant had done anything to her. Tani-ka responded that defendant had “put his thing down there.” She then took Tanika in the bathroom and bathed her, noting the presence of what appeared to her to be “male sperm” on the child’s leg.

A quarrel then ensued between defendant and Mrs. Donald, during which defendant became angry and began to disarrange some of the contents of the house. Mrs. Donald then gathered up her children and went down the street to her father’s house, from which she called the Sheriff’s office to report the incident.

Deputy Sheriff Fred Grant was the investigating officer. He arrived at the Donald house at approximately 10:40 that evening and was met by Mrs. Donald, who recounted to him substantially the same information as contained in her trial testimony. He then went into the Donald house and talked with the defendant, whom he stated smelled of alcohol. He then went to Mrs. Donald’s father’s home and talked with the little girl about the incident. He was allowed to testify that Tanika told him the defendant had “put his thing down between my legs and it hurt,” and she indicated that he had done it three times. He then carried mother and daughter to E.A. Conway Hospital in Monroe, where the child was examined by Dr. Janet Walters.

Dr. Walters testified that in examining the child’s vagina she found two small tears at the entrance. She found that the skin was actually broken and that the tears had occurred within the 24 hours immediately preceding the examination. She stated that the condition of the child’s vagina was consistent with the blunt trauma of something trying to penetrate it and with the child’s statements concerning what had happened.

By his second assignment of error, defendant urges that the trial court’s refusal to permit defense counsel to question Shirley Donald concerning her relationship with a man other than defendant precluded him from showing an improper motive for her testimony. It is axiomatic that evidence must be relevant to a material issue in order to be admissible at trial, and that relevant evidence is that which tends to show, or tends to negative, the commission of an offense and the intent. La.R.S. 15:435, 15:441. The defense conceded that the relationship referred to was not formed until after the rape incident. The trial court held that such evidence was therefore irrelevant, as no motive for fabrication would have existed until after the incident. The scope and extent of cross-examination rests largely within the discretion of the trial judge and his rulings will not be disturbed in the absence of an abuse of discretion. State v. Garrison, 400 So.2d 874 (La.1981). We find no abuse of discretion in the ruling complained of.

By his next three assignments of error, defendant complains of the admission of hearsay evidence in the form of statements by the victim and her younger sister to their mother, the investigating police officer, and the examining physician. He contends that the admission of these out-of-court statements for the purpose of proving his guilt of the charge was error because they do not fall within an exception to the rule prohibiting the use of such hearsay evidence.

The trial court admitted the statements made to all three witnesses as part of the res gestae exception to the hearsay rule under La.R.S. 15:447 which provides:

Res gestae are events speaking for themselves under the immediate pressure of the occurrence through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.

To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act or immediate con-comitante of it, or form in conjunction with it one continuous transaction. La.R.S. 15:448.

The rule as to admissibility of statements as part of the res gestae in the prosecution of sex offenses, as stated by the Louisiana Supreme Court, is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that the complaint was the product of a shocking episode and not a fabrication. State v. Adams, 394 So.2d 1204 (La.1981); State v. Noble, 342 So.2d 170 (La.1977). Thus in Adams the statement of a five-year-old child identifying her stepfather as the perpetrator of the rape to an adult woman some ten hours after the incident was held admissible because the circumstances indicated that it was made at the first opportunity the child had to speak with a friendly adult. In State v. Prestridge, 399 So.2d 564 (La.1981), the child victim was visibly upset and crying after the incident, had to remain in a house trailer in close proximity with the defendant, and the only other adult present was her mother who was in the bed with the defendant. The court held that the child’s statement concerning the incident which she made to her babysitter the following morning was made at the first reasonable opportunity under the circumstances, and was thus admissible as part of the res ges-tae.

In the instant case, Tanika’s statement to her mother was made almost immediately upon her mother’s return home from work, while she was still in the bed with defendant and remained visibly upset and shaking. Under the circumstances, we are satisfied that the statement was made at the first reasonable opportunity and find no error in the trial court’s allowing this statement to go before the jury as part of the res gestae.

We further find that the trial court did not err in permitting the deputy’s account of the victim’s statements to him as it falls within the recognized exception to the hearsay rule that the early complaint of. a rape victim is admissible. See State v. Hunter, 340 So.2d 226 (La.1976); State v. Brown, 302 So.2d 290 (La.1974). As to his testimony that the younger child Sonja told him that defendant had been “messing with Tanika,” we do find that the trial court was in error in allowing this statement for the purpose of showing the basis of the officer’s investigation. We do not feel that this particular statement, made by a three-year-old child who was not herself a victim of the rape, nor shown to be present at the time of the incident, would suffice.to serve as the basis for an investigation. Nor does it fall within any other exception to the hearsay rule. However, this statement was simply cumulative evidence, being essentially the same statements made by the victim to her mother and the deputy, and as such the admission thereof constitutes harmless error.

We reach the same conclusion with regard to defendant’s fifth assignment of error concerning statements made by the victim to the examining physician. Since the statement made was merely cumulative with the previous statements, any error in admitting these statements by the child-victim did not prejudice the defendant. We therefore find no merit in these assignments of error.

Defendant further contends that the trial court erred in failing to require the state to produce the victim at trial, in violation of his constitutional rights to confront and cross-examine the witnesses against him under the Louisiana Constitution, Article 1 § 16 and the Sixth Amendment to the U.S. Constitution. We recognize the constitutional guarantee of a defendant’s right to confront his accusers. However, the right of confrontation is not absolute, and may be qualified if justified by necessity and attended by strong assurance that evidence admitted thereunder will be reliable. See State v. Monroe, 345 So.2d 1185 (La.1977).

Evidence forming part of the res gestae is always admissible. La.R.S. 15:477. Therefore, its admissibility is not contingent upon the unavailability of a witness, and we know of no rule requiring that the state produce the victim of a rape under circumstances such as those before us. See State v. Monroe, supra. In any case the defense was at liberty to summon the victim to testify at trial, and failed to do so, and also made no attempt to examine her competence as a witness inasmuch as she was under the age of twelve. See LSA-R.S. 15:469. Furthermore, he was afforded full opportunity to cross examine those witnesses who did testify against him. Under the circumstances we find no merit to the defendant’s suggestion that his right of confrontation has been abridged.

Having concluded our examination of the admissibility of the evidence introduced against the defendant, we may now move to a consideration of the defendant’s assertion that said evidence was insufficient to support his conviction. The applicable standard of review, as stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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. Since the victim did not testify at trial, defendant’s conviction is based solely upon circumstantial evidence. Therefore, we are additionally governed by our statutory rule as to circumstantial evidence:

Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.

See State v. Graham, 422 So.2d 123, at 129 (La.1982).

Tanika’s mother testified that, upon her arrival home from work on the night in question, she discovered her husband and her five-year-old daughter in the same bed, he clad only in undershorts and she in a nightgown with no underwear. She found it unusual that only one and not both of her daughters would be in the bed with their stepfather. Upon questioning, Tanika told her mother the defendant had “put his thing down there.” Upon removing the child to the bathroom, she found what she termed male sperm, no doubt meaning semen, running down Tanika’s leg and immediately bathed her. When she confronted her husband, he became angry and an argument ensued, where upon Mrs. Donald took her children down the street to her father’s home.

There she called the Caldwell Parish Sheriff’s office to report the incident. Deputy Sheriff Fred Grant, the investigating officer, testified that Mrs. Donald’s testimony at trial was consistent with the information she had given him that night. He also stated that Tanika had told him the defendant “put his thing down between my legs and it hurt.” He thereafter drove the child and her mother to E.A. Conway Hospital for a physical examination in the emergency room was Dr. Janet Walters, who testified as to the tears in the child’s vagina which she found had occurred within the 24 hours prior to the examination, and that the child’s condition was consistent with a penetration. She also stated that it was highly unlikely that the injury could have occurred in any manner other than the one presented by the child. The defense failed to produce any evidence to controvert the testimony given at trial, or to show any motive for fabrication by these witnesses.

Viewing this evidence in the light most favorable to the prosecution, we believe that a rational juror could find that the essential elements of aggravated rape by this defendant have been proved beyond a reasonable doubt. We further find that the evidence excludes every reasonable hypothesis of the defendant’s innocence. This assignment of error likewise lacks merit.

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

AFFIRMED.


author: HALL, Judge.

text:
    STATE of Louisiana and City of Shreveport, Appellees, v. Bobby C. MILLER, Appellant.
    No. 15615-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Allan R. Harris, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., R. Lee Irvin, Catherine M. Estopinal, Asst. Dist. At-tys., Shreveport, for appellees.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

The defendant was charged in Shreveport City Court by separate affidavits with two counts of simple battery of a police officer in violation of LSA — R.S. 14:34.2, resisting an officer in violation of Shreveport City Code § 21-4, and use of profane language in violation of Shreveport City Code § 21-28. By agreement and after the defendant expressly waived trial by jury, these charges were consolidated for trial before a judge. A judgment of dismissal was granted the defendant on one of the two counts of simple battery but the defendant was convicted on all other charges. On the simple battery and resisting arrest charges, the defendant received concurrent sentences of a fine of $350 plus court costs or 35 days in jail as well as 45 days in jail, 15 of which were to be served on a work release program with the other 30 days suspended and two years unsupervised probation imposed. On the use of profane language charge, the defendant was fined $50 plus court costs or five days in jail.

The defendant appealed, assigning as error the trial court’s failure (1) to find that the initial stop of the defendant was an arrest and that the arrest, or in the alternative, the stop and frisk, was without probable or reasonable cause; and (2) to find that because of the illegality of the arrest or stop and frisk the defendant was justified in resisting the officers by means of using profanity or physical resistance. Finding no error in the trial court rulings, we affirm the defendant’s convictions and sentences.

On August 2,1982, at approximately 2:00 a.m., Shreveport police officers noticed a pickup truck parked on a vacant lot in downtown Shreveport near a construction site. Upon investigation, two individuals, a white male and a young white female, were discovered sitting in the truck. Upon being questioned about their presence, the white male identified himself as Alan Potts and informed the officers that they were waiting for a friend. One of the officers ran a vehicle license and registration check on the pickup truck and found that it belonged to a Bobby C. Miller, the defendant. Potts then informed the officers that he and the girl were waiting for her husband who had gone with a black man in a beige car to purchase some marijuana and they expected those individuals to return at any moment.

The officers backed off the location and placed the truck under surveillance. Some 15 to 20 minutes later a light blue and beige Mercury Cougar occupied by a black male and two white males pulled in and stopped beside the pickup truck. The officers, all of whom were in uniform, then converged on the car and ordered the occupants to get out and place their hands on the car. The officers then began to frisk the occupants of the car for weapons. These precautions were taken because of the lateness of the hour, the isolated location in which the incident occurred, and the possibility that the officers might well be interrupting the consummation of a drug deal.

The black male and one of the white males complied with police orders to put their hands on the car. The defendant, however, began to question the officers as to the reason for the stop, using profane language several times. The defendant was informed that the officers were conducting an investigation. Despite this response to his inquiry, the defendant continued to curse the officers and would not keep his hands on the vehicle as requested. After enduring several profane outbursts by the defendant, the officers arrested him for the use of profane language in violation of Shreveport City Code § 21-28.

The defendant strenuously resisted his arrest by struggling with the officers to prevent being handcuffed and was literally dragged kicking and screaming to the police vehicle and forcibly placed in the back seat. During the struggle, the defendant kicked one of the officers several times.

Defendant relies on White v. Morris, 345 So.2d 461 (La.1977); City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); and City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943), which hold that a citizen has a right to resist an unlawful arrest. The defendant does not contend that he did not violate the state statute and city ordinances, but contends that the violations were justified. He contends that he is not guilty of the offenses charged because he was justified in using profane language, in fighting with the police officers, and in resisting his arrest because the stop and frisk and the arrest were unlawful. We reject these contentions. The officers had reasonable cause to stop and frisk and probable cause to arrest. Their actions were lawful and defendant’s actions were not justified and were unlawful.

A law enforcement officer may make an investigatory stop when it is reasonable to believe that a suspect has engaged in or is engaging in criminal activity. Reasonable cause for an investigatory stop is something less than probable cause.. Nevertheless, the officer must have articu-lable knowledge of particular facts which, in conjunction with reasonable inferences drawn therefrom, are sufficient to provide reasonable grounds to suspect the party involved of past, present, or imminent criminal activity. The existence of reasonable cause must be determined under the facts of each case by ascertaining whether the officer had sufficient knowledge of circumstances which would justify an infringement upon the individual’s right to be free of governmental interference. LSA-C. Cr.P. Art. 215.1 A; State v. Bickham, 404 So.2d 929 (La.1981). Once a lawful stop or detention for questioning is made, a police officer is justified in frisking the suspect for weapons under circumstances where the officer reasonably believes that he is in danger. LSA-C.Cr.P. Art. 215.1 B; State v. Jernigan, 377 So.2d 1222 (La.1979).

Here, the officers were reasonably justified in believing that the defendant was engaged in criminal activity involving marijuana. They were told by the on-the-scene informant that the defendant had gone to purchase marijuana and would be back momentarily. The informant’s information was from his own personal observation and to some extent was a declaration against his interest, enhancing the reliability of the information. The reliability of the information was further enhanced when a car matching the general description given to the officers by the informant, occupied by persons matching the general description given by the informant, drove up and parked beside the informant’s vehicle.

Given these circumstances the officers had reason to believe that a criminal offense had been or was about to be committed and were justified in conducting an investigatory stop and questioning the occupants of the vehicle, including the defendant. Given the suspicious movements of the occupants inside the vehicle when the officers approached, as well as the fact that the incident occurred in the early morning hours in a deserted area of the city and the fact that the officers had reason to believe they were interrupting the consummation of criminal activity, the officers were justified in believing they were in danger and in conducting a frisk for weapons. The stop and frisk of the defendant by the officers was lawful.

Before a police officer without a warrant may arrest a person he must have probable cause to believe that the person has committed a criminal offense. LSA-C.Cr.P. Art. 213; State v. Davis, 359 So.2d 986 (La.1978).

Despite the officers’ explanation to the occupants of the car of the reason for the investigatory stop and frisk, the defendant refused to cooperate in the search for weapons and repeatedly addressed profanities to the officers. The defendant’s actions gave the officers probable cause to arrest him for the use of profane language in violation of Shreveport City Code § 21-28. Consequently, the defendant’s arrest for a violation of that ordinance was lawful.

Since the stop and frisk and the arrest conducted in this case were based on reasonable and probable cause respectively, and were therefore lawful, the defendant’s use of profanity and violence in resisting the actions of the police officers was unjustified and unlawful. The defendant’s convictions and sentences are affirmed.

Affirmed.


text:
    STATE of Louisiana, Appellee, v. Ernest Ray ANDERSON, Appellant.
    No. 15633-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Timothy R. Fischer, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Shreveport, Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Sonia D. Peters, Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

Defendant appeals his sentence of ten years at hard labor for the commission of Sexual Battery in violation of LSA-R.S. 14:43.1, contending it constitutes excessive punishment in violation of Art. 1, § 20 of the 1974 Louisiana Constitution. The sentence imposed is the maximum punishment authorized by the Sexual Battery .statute. We affirm the sentence imposed.

On October 6,1981, at approximately 2:30 a.m., defendant and an unidentified individual entered the victim’s Shreveport apartment, repeatedly raped the victim and ransacked the apartment for valuables. The victim resisted the encounter, but was forced to submit through the use of a weapon, apparently a .38 caliber gun. Defendant threatened to kill the victim and her young child who was present in the apartment unless she submitted. The victim was also forced to perform oral sex on defendant twice. A watch, a ring and a small amount of cash belonging to the victim were taken from her apartment by the assailants.

On March 6,1982, defendant was arrested and charged with Aggravated Rape, (LSA-R.S. 14:42), Aggravated Crime Against Nature (LSA-R.S. 14:89.1), and Armed Robbery (LSA-R.S. 14:64). On April 19,1982, a Caddo Parish Grand Jury returned a True Bill charging defendant with Aggravated Rape and Aggravated Crime Against Nature. On January 25, 1983, defendant pled guilty to the reduced charge of Sexual Battery (LSA-R.S. 14:43.1). On March 3,1983, defendant received the maximum sentence of ten years at hard labor for the commission of that offense. From that imposition of sentence, defendant timely perfected this appeal.

Defendant makes no contention that the trial judge failed to adequately articulate for the record the factual basis and the considerations for the imposition of this sentence as required by LSA-C.Cr.P. Art. 894.1. Therefore, the issue presented by this appeal is “... whether the trial judge abused his sentencing discretion based on the record and the reasons stated in pronouncing sentence.” See State v. Bourgeois, 406 So.2d 550 (La.1981), at 554. We find no abuse of discretion in this case.

Defendant contends that an abuse of discretion occurred when the trial judge failed to give adequate consideration and weight to the mitigating factors of defendant’s young age and relatively minor prior criminal record. Defendant is 24 years old and has no prior felony convictions. However, defendant does have a juvenile arrest record as well as an adult arrest and conviction record. We find that the trial judge gave adequate consideration and appropriate weight to these factors both in deciding to impose imprisonment rather than probation and in determining the appropriate length of the sentence to be imposed.

As previously noted, defendant pled guilty to the greatly reduced charge of Sexual Battery. The State accepted that plea in satisfaction of the Aggravated Rape charge facing defendant. Additionally, in exchange for that plea, the State dropped the Aggravated Crime Against Nature charge facing defendant. Under the facts of this case, .defendant might well have been convicted of either or both of those offenses and subjected to a much more severe punishment than the sentence actually imposed. Through the perfection of the plea bargain agreement,, defendant escaped that possibility and lessened his potential exposure to a maximum of ten years.

After considering the facts of this case, the serious nature of the offense committed, the plea bargain agreement and defendant’s prior criminal record, the trial judge concluded that the imposition of a sentence less than the statutorily authorized maximum would unduly deprecate the seriousness of the crime. These findings are in complete accord with the pre-sen-tence investigation. It appears obvious that the trial judge felt any mitigating factors present in this case were sufficiently accounted for in the perfection of the plea bargain agreement. This assessment is well supported by the record.

Furthermore, we reject defendant’s contention that his age, 24 years, is a mitigating factor in this case. Nor does the fact that the trial judge failed to expressly mention defendant’s age warrant vacation of the sentence imposed. An examination of the record reveals that the trial judge was well aware of defendant’s age and considered it in imposing sentence. It appears to us that the trial judge felt defendant had received sufficient leniency through the plea bargain agreement and felt no further leniency was warranted due to defendant’s age. Adequate compliance with LSA-C.Cr.P. Art. 894.1 does not require that the trial judge articulate every aggravating and mitigating circumstance present in the case before him. It is sufficient that the record reflects he adequately considered the guidelines set forth in that statute and imposed a sentence particularized to the defendant and the offense. See State v. Guiden, 399 So.2d 194 (La.1981).

Our review of the record in this matter convinces us that the trial judge adequately discharged his duty. Defendant’s sentence is affirmed.

AFFIRMED.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. David HENRY, Appellant.
    No. 15638-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.

      Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard L. Carney and Catherine M. Estopi-nal, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Defendant was arrested and charged with the crime of simple burglary of an inhabited dwelling in violation of La.R.S. 14:62.2. Thereafter, a motion to suppress certain evidence seized at the time of the defendant’s arrest was granted by the trial court, and the State applied for supervisory writs. We granted the writ to review the propriety of the trial court’s ruling. Finding that the court erroneously granted the motion to suppress, we reverse and remand for further proceedings.

On January 24,1983, a simple burglary of a residence located at 817 Elder in Shreveport was committed. Taken from the residence were several items, including a stereo system. On January 25, 1983, the police were contacted by the inhabitants of the burglarized residence and informed that a black male had been seen unloading a stereo unit believed to be the one taken in connection with the burglary from an automobile and placing it in a residence located at 1952 Milam. The Milam residence is located to the rear of the Elder residence. Three officers were dispatched to the scene to investigate the report. When they arrived at the Elder residence, the officers questioned the complainants and proceeded to the Milam address. Two of the officers went to the front door and one went to the rear door of the residence. The officers knocked on the front door and received no response. The officer at the rear knocked on that door and the force of the knocking caused it to open. At least one officer and possibly all three officers then entered the residence through the rear door after which they observed a stereo system with two speakers in the bedroom on the bed.

Thereafter, the owner of the residence, Annie Murray, arrived accompanied by the defendant. When questioned about the presence of the stereo in the residence, she replied that she had no knowledge of its being there and in fact it had not been there when she left for work that morning. She invited the officers to look within the residence. However, one of the officers called an investigator to come to the scene. When the investigator arrived, he asked the owner of the residence to sign a consent to search form which she executed. Thereafter, the residence was searched and the items sought to be suppressed, namely, one stereo turntable and two speakers, were seized.

The only evidence presented at the hearing on the motion to suppress was the testimony of three of the officers and the consent to search form. After considering all of the evidence, the trial court found that the initial entry into the house constituted an illegal search which could not be cured by the subsequently obtained consent to search.

We agree with the trial court’s finding that the original warrantless entry into the house and the resulting search were illegal. At the time of the initial entry, there were no circumstances which justified entry without a warrant. Thus, the question becomes whether or not the consent obtained from the owner of the residence will rehabilitate the prior warrantless search. Our review of the jurisprudence compels us to answer affirmatively and to hold that the subsequent consent served to waive the warrant requirement for the search previously conducted thereby purging the initial search of the primary taint. State v. Kimble, 375 So.2d 924 (La.1979); State v. Williams, 353 So.2d 1299 (La.1977). Compare State v. Bennett, 383 So.2d 1236 (La.1979).

It is well settled that a warrant-less search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. State v. Bodley, 394 So.2d 584 (La.1981). A consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Bodley, supra. In the instant case, it is undisputed that the consent to search the premises was given by the owner of the residence and that the consent was free and voluntary. Thus, all of the requisites to a valid consent are present. Under the circumstances presented by this case, the consent was not only to future searches and seizures but also amounts to a waiver of the warrant requirement with respect to the search previously conducted. See State v. Williams, supra.

Furthermore, the defendant did not actually reside at the residence which was searched but only stayed there occasionally with the owner, his girlfriend. Therefore, the defendant had no right to an expectation of privacy in the house of his girlfriend. The owner was the party entitled to that right, and she voluntarily waived it in favor of the police. State v. Kimble, supra.

Accordingly, the judgment of the trial court granting the motion to suppress is erroneous and is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CASE REMANDED.


author: FRED W. JONES, Jr., Judge.

text:
    Imogene Hearne McCOLLOUGH, Plaintiff-Appellant, v. PENINSULAR FIRE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 15690-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Smitherman, Lunn & Chastain by W. James Hill, III and John A. Richardson, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendant-appellant.
    Hayes, Harkey, Smith & Caseio by Joseph D. Caseio, Jr., Monroe, for defendants-ap-pellees.
    Before HALL, FRED W. JONES and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Mrs. Imogene McCollough sued the Peninsular Fire Insurance Company (“Peninsular”) for the $25,000 face amount of an insurance policy allegedly covering property damaged by fire. Alternatively, plaintiff asked for $25,000 in damages from Francis Disiere [d/b/a Disiere Insurance & Real Estate Agency] for his failure to keep in force insurance coverage on the damaged property. Disiere’s liability insurer, Employers Reinsurance Corporation (“Employers”) was subsequently added as a party defendant.

At the conclusion of the presentation of plaintiff’s case, Peninsular’s motion for dismissal as to it [La.C.C.P. Art. 1810(B) ] was sustained and judgment to that effect signed on January 24, 1983. The trial proceeded as to Disiere and Employers. Judgment in favor of these defendants, rejecting plaintiff’s demands, was signed on March 23, 1983.

Plaintiff appealed both of the described judgments, contending the trial judge erred in failing to find that:

(1) Because of Disiere’s established practice and custom of automatically renewing plaintiffs insurance policies without prior approval from her and prepayment of premiums, that defendant was obligated to keep fire insurance in force on the damaged property.
(2) The Peninsular insurance policy, issued by Disiere and made effective January 19, 1981 [day after the fire] should have been reformed to become effective on January 5, 1981 [operating as renewal of prior policy] since Disiere, as Peninsular’s agent, was so obligated.

For reasons hereinafter detailed, we affirm.

Mrs. McCollough, who has been involved in the real estate business for some 30 years, began doing insurance business with Disiere in 1971. During the ensuing years policies written through the Disiere agency covered the McCollough home on Linwood Avenue in rural Caddo Parish, various motor vehicles and two rental properties in Shreveport. One of the latter [involved in this suit] was located on Boulevard Street [most recently occupied by Mrs. McCol-lough’s mother] and the other was situated on West Kirby Street. In July 1980 the McColloughs transferred their motor vehicle insurance coverage to another agency.

From 1971 through 1977 Disiere covered the Boulevard Street house with policies written on The Aetna Casualty and Surety Company. The coverage for the period from January 5, 1978 to January 5, 1979 was placed with Republic Underwriters Insurance Company. From January 5, 1979 to January 5,1980 a policy issued by Peninsular provided coverage for the property. The latter policy was renewed, with the new policy effective from January 5, 1980 to January 5, 1981.

On November 12, 1980, Disiere’s agency mailed to Mrs. McCollough, at her Linwood Avenue address, the following form notice with reference to the last described policy:

“Please note that this policy will expire on date indicated above [January 5,1981]. It is our earnest desire to continue your coverage and certainly hope that you will contact us in the near future to make arrangements for renewal and payment of the premium.
“If we have not been' contacted by you prior to the expiration date of your policy as indicated above, please be advised that all coverage will cease as of 12:01 A.M. that date.”

On Sunday morning, January 18, 1981, the Boulevard Street property was damaged by fire. On January 19, 1981 Disiere received in the mail a check from Mrs. McCollough, dated January 15, 1981, for $115. After contacting Peninsular, Disiere issued a policy to Mrs. McCollough on that company, made effective January 19, 1981, covering the Boulevard Street property.

This litigation ensued after Peninsular denied that it had in force on the date of the fire a policy covering the damaged property, asserting that its policy had expired on January 5, 1981 and that the new policy was not in force until January 19, 1981.

At the merit-trial, Mrs. McCollough testified in general that during the years she did insurance business with Disiere her coverage was maintained in force and effect on an automatic basis, whether premiums were paid timely or not. She asserted that from time to time Disiere would increase coverage on the Boulevard Street property without prior consultation with her. According to plaintiff, the usual practice was for Disi-ere to send her a premium notice and then automatically renew a policy. Thereafter she would pay the premium, sometimes before the due date and sometimes later.

Mrs. McCollough insisted that she did not receive the above described notice mailed by Disiere’s office on November 12, 1980 until January 15,1981; that she immediately telephoned the agency and spoke to someone named “George” concerning the balance she owed; was advised that the balance was $115; and on that date mailed a check for the specified amount to the agency, assuming that this would renew as of January 5, 1981 the policy alluded to in the notice.

Disiere testified that when plaintiff first started doing business with his agency the usual practice was for Aetna to bill plaintiff directly and for her then to pay the premium to his office. In 1976 Aetna changed its procedures and required that the insureds pay the company directly. However, because of his prior custom of extending credit to plaintiff, Disiere continued that practice on those occasions when she requested a policy renewal and did not pay the premium timely.

Disiere further explained that because of problems arising from automatic policy renewals [resulting in cancellations when insureds changed agencies or desired different coverage], the notice to Mrs. McCol-lough concerning her policy expiring on January 5, 1979 contained the following statement:

“Your policy has been automatically renewed by Republic. Since we have no way of knowing for certain that you wish renewal, we are holding it pending receipt of financial arrangements. If you do not desire renewal, please contact us prior to 1/5/79. If you have not contacted us by 1/5/79 please be advised that all coverage will cease as of 12:01 A.M. that date.”

Plaintiff responded to this notice by advising Disiere of her desire to renew the policy.

In 1980 Disiere changed its policy expiration notice to the form letter used in the November 12, 1980 notice to plaintiff concerning the Boulevard Street property. As a matter of fact, Disiere mailed an identical notice to plaintiff with reference to an insurance policy on her West Kirby Street rental property which expired on October 18, 1980. Upon receipt of the notice Mrs. McCollough promptly advised Disiere of her desire to renew the policy, mailing the agency a check dated October 20, 1980 for the specified premium.

Disiere and his office manager denied that there was anyone named “George” employed by the agency to whom plaintiff might have spoken on January 15, 1981. They explained that a telephone inquiry of this nature, relating to a policy renewal, in accord with agency policy would have been referred to one of them and that this was not done. Regardless, plaintiff’s position on appeal is that whether she contacted Disiere as asserted is irrelevant since the insurance agent was obligated, because of prior practices with reference to plaintiff’s account, to automatically renew the policy in question and bill the insured for the premium.

In written reasons for judgment the trial judge concluded:

“[F]rom all of the evidence it appears that the insurance agent attempted to notify plaintiff, as its policyholder, that her policy would expire on January 5 and ‘all coverage will cease as of 12:01 A.M. that date’ if she did not contact them prior to such time in order to make arrangements for renewal and payment of the premium. An identical notice was sent with regard to other property she owned and had insured through this agent on West Kirby, and the evidence is clear that she did in fact respond to such notice, obtained the amount necessary to renew and had the policy renewed. We find that plaintiff has failed to carry the burden required of her to establish liability under Porter, supra.”

To recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (8) the actions of the agent warranted an assumption by the client that he was properly insured. Redmond v. National Union Fire Insurance Company, 403 So.2d 810 (La.App. 2d Cir.1981); Porter v. Utica Mutual Insurance Company, 357 So.2d 1234 (La.App. 2d Cir.1978).

In Redmond the plaintiff had received a written notice on September 19, 1979 advising him that the insurance on his dwelling would expire on October 26, 1979 and to “come by our office before October 26,1979 to make full payment.” Redmond testified that he telephoned the agency to authorize an increase in his policy limits, but admitted he never paid the stipulated premium. His home was damaged by fire on November 12,1979. Upon reporting his loss, Redmond was informed that there was no coverage since his policy had expired in accordance with the notice received by him. Redmond then sued the agency’s liability insurer, contending that through the years of their doing business the agency had led him to believe that his premium was due only after he received an invoice.

Affirming a judgment adverse to Redmond, we reasoned:

“Regardless of any prior method of payment plaintiff may have had with McKenzie & Mouk, the letter notifying him of a lapse in coverage unless he paid by October 26 served as a termination of any prior credit practices and put him on notice that the policy would not be renewed unless he took affirmative steps by October 26. His failure to comply with the request contained in the letter was tantamount to a waiver of any right he may have had to assume that practices of the past would be maintained.”

Plaintiff contends that Redmond is factually distinguishable because in that case the insured actually received notice of the policy expiration prior to the renewal date; was advised to come by the agent’s office to make full payment or the policy would not be renewed; and contacted the agent by telephone but thereafter failed to pay the premium.

We understand plaintiff’s position on appeal to be that, since she immediately advised the agency of her desire to renew the policy upon receipt of the expiration notice from Disiere on January 15, 1981, because of past practices Disiere was obligated to renew the policy as of the date of expiration of the prior policy [January 5, 1981] and to charge the premium to plaintiff’s account. Consequently, the date she might have mailed the check for the premium was irrelevant.

In response to this argument, we first hold (as in Redmond) that any prior practice Disiere might have had in automatically renewing plaintiff’s insurance policies was effectively terminated in October 1980 when she received the notice relative to the West Kirby Street property and immediately advised the agency of her desire to renew that insurance, though the check for the premium was not received by the agency until a couple of days later. Therefore, plaintiff had no reason to believe that the policy covering the Boulevard Street property, expiring on January 5, 1981, would be automatically renewed without her contacting the Disiere agency.

Next, viewing the evidence in a light most favorable to plaintiff by assuming that she did not actually receive the expiration notice mailed by Disiere on November 12, 1980 until January 15, 1981, that notice effectively informed her that there had been no automatic renewal of her policy and that it had expired on January 5, 1981. Consequently, if plaintiff desired immediate coverage it was incumbent upon her at that time to make necessary arrangements for another policy. The trial judge found [at least impliedly] that plaintiff did not prove she made this arrangement. On credibility issues such as this we must accord great weight to the trial court’s assessment, and do so here — particularly, in view of the conflicting record evidence.

For these reasons, we conclude that the trial judge correctly rejected plaintiff’s demands against Disiere and his insurer.

Determining that Disiere was under no obligation to automatically renew on January 5, 1981 plaintiff’s insurance policy covering the Boulevard Street property, the necessity of discussing whether the trial judge erred in sustaining Peninsular’s motion to dismiss is pretermitted. Regardless, there is no record evidence that, as an insurance broker, Disiere had the authority to backdate the January 19, 1981 Peninsular policy to January 5, 1981, thus providing coverage for the fire loss. See Neustadter v. Bridges, 406 So.2d 738 (La.App. 4th Cir.1981).

Accordingly, the judgments appealed are affirmed, at appellant’s cost.


text:
    J. Merlin THOMAS, Plaintiff-Appellant, v. Urslia P. THOMAS, Defendant-Appellee.
    No. 15695-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Writ Denied Dec. 16, 1983.

      Kidd & Kidd by Paul Henry Kidd, Monroe, for plaintiff-appellant.
    McLeod, Swearingen, Verlander & Dollar by Robert P. McLeod, Monroe, for defendant-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued to terminate his obligation to pay permanent alimony, based upon his ex-wife’s alleged open concubinage. The trial court found that plaintiff’s ex-wife was not living in open concubinage, and dismissed plaintiff’s claim. We affirm.

Plaintiff, J. Merlin Thomas, and defendant, Urslia Thomas, who both reside in Bas-trop, were divorced by a judgment rendered on June 2, 1981. The judgment of divorce specifically found Urslia Thomas free of fault, and ordered Merlin Thomas to pay her permanent alimony in the amount of $100 per month. No children were born of the marriage.

On January 7, 1983, plaintiff Merlin Thomas filed a rule to terminate his obligation to pay permanent alimony on the grounds that Urslia Thomas was living in open concubinage with another man. The trial court concluded that defendant Urslia Thomas was not living in open concubinage with another man, and in an opinion rendered from the bench on February 15, 1983, dismissed plaintiff’s motion to terminate permanent alimony.

The issue on appeal is whether the trial court erred in concluding that defendant Urslia Thomas was not living in open concubinage.

The statutory basis of plaintiff’s motion to terminate permanent alimony is Civil Code Article 160, as newly amended by Act 580 of 1982. The new amendment to Article 160 provides that permanent alimony “terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.” Thus, for the first time in Louisiana’s legal history, open concubinage on the part of an ex-spouse terminates his or her right to permanent alimony. To our knowledge, this appeal represents the first decision in which the new open concubinage provision of Article 160 has been interpreted. Moreover, Article 160 itself does not define the term “open concubinage.”

In considering the term “open concubinage,” however, this Court is not operating in a legal vacuum. The term open concubinage is used in Civil Code Article 1481, which states in pertinent part that, “Those who have lived together in open concubinage are respectively incapable of making to each other ... any donation of immova-bles.” Moreover, the jurisprudence has for over a century ascribed a definitive meaning to the term “open concubinage.”

It is our view that the definition of “open concubinage” operative in the jurisprudence interpreting Article 1481 is equally applicable in the interpretation of Article 160. In short, open concubinage has the same meaning under Article 160 as it does Article 1481. When a legislature utilizes a term with a well-known meaning, it is logical to conclude that they intend the term to convey the same meaning which has become inextricably intertwined with the term itself.

In defining and applying the term open concubinage, the courts have historically insisted that a definite meaning be ascribed to both the words “open” and “concubinage,” before finding that the legal requisites of open concubinage have been proven. “Concubinage” is derived from the Latin term concubinatos. This term signified, in Roman civilization, a relationship or cohabitation in which the man and woman generally resided together as husband and wife without the benefit of the formalities, civil effects and legal consequences of a formal marriage. Succession of Jahraus, 114 La. 456, 38 So. 417 (1905). Thus to this day, concubinage has retained the signification of a relationship in which a man and woman live together as husband and wife without being legally married. Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La.1978); Succession of Moore, 232 La. 556, 94 So.2d 666 (1957); Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, supra; Succession of Keuhling, 187 So.2d 520 (La.App. 3d Cir.1966); Purvis v. Purvis, 162 So. 239 (La.App. 2d Cir.1935). It is crucial to the definition of open concubinage to note that it depicts a status or relationship, rather than an act or series of acts. Succession of Moore, supra; Succession of Franz, supra; Succession of Jahraus, supra; Succession of Keuhling, supra. Concubinage is not constituted merely by “acts of fornication or adultery, however frequent or even habitual.” Succession of Jahraus, 38 So. at 418. Moreover, “the concubine must not be confounded with the cour-tezan, or even with what is ordinarily called a mistress. She is the wife without a title.” Gauff v. Johnson, 161 La. 975, 109 So. 782, 783 (1926). Concubinage depicts a state of affairs in which the man and woman exercise with respect to each other the rights and privileges of marriage. Succession of Lannes, 187 La. 17, 174 So. 94 (1936). Thus, concubinage could be defined as a relationship of sexual content in which man and woman live together as husband and wife in a state of affairs approximating marriage. It should be noted, however, that although living together is important to a finding of concubinage, it is not absolutely essential. Succession of Filhiol, 119 La. 998, 44 So. 843 (1907); Succession of Jahraus, supra; Succession of Keuhling, supra; Succession of Hamilton, 35 La.Ann. 640 (La.1883); Paxton v. Paxton, 173 So. 488 (La.App. 1st Cir.1937).

In applying the concept of “open concubinage,” the Louisiana courts have also ascribed a definite and distinct meaning to the term “open.” Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be “open.” Concubinage is said to be open, when the illicit relationship is not disguised, concealed, or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct. Succession of Keuhling, supra. Succession of Jahraus, supra; Succession of Keuhling, supra; Paxton v. Paxton, supra. A finding of “openness” clearly does not require that the parties verbally acknowledge their illicit relationship: “[M]en of position do not proclaim from the housetops their illicit connections.” Succession of Filhiol, supra, 44 So. at 847. See also Jones v. Kyle, 168 La. 728, 123 So. 306 (1929); Succession of Jahraus, supra. However, efforts taken by the parties to conceal their illicit relationship militates against a finding of openness. Moreover, it is not sufficient that an illicit relationship be “notorious” or widely known in order for it to be “open.” Succession of Jahraus, supra; Succession of Keuhling, supra. Openness constitutes a distinct and less easily achieved standard, involving the absence of any pretense or disguise which would provide a morally acceptable cloak for their illicit relationship.

Urslia Thomas, at the time of trial, was 54 years old. Ray Rachell, with whom she was allegedly living in open concubinage, was 52 years of age. Ms. Thomas lives in a two bedroom house in Bastrop and Mr. Rachell maintains a residence at a rented trailer in nearby Crossett, Arkansas.

The testimony of Merlin Thomas — who conducted regular surveillance of his ex-wife’s house and compiled detailed notes of his day-by-day observations — indicates that Ray Rachell spent the night at Ms. Thomas’ home about 85 percent of the nights between October 22,1982 and the date of trial on February 15, 1983. There were several periods of three to four days apiece during that nearly four month span that Ray Rac-hell or the vehicle driven by him was not sighted late at night and early in the morning at Urslia Thomas’ home. However, the testimony reflects that during these infrequent absences by Ray Rachell from Ms. Thomas’ home, Ms. Thomas herself was not at home. On several of these occasions, Ms. Thomas was spotted either in Crossett, or on the road between Bastrop and Crossett. Moreover, Ms. Thomas and Mr. Rachell were often sighted returning to her house together or in separate vehicles at closely intervening times, subsequent to these absences.

Neither Ray Rachell nor Ms. Thomas denied that he was a frequent overnight guest at Ms. Thomas’ Bastrop home, and Mrs. Thomas admitted the day of the trial that he had in fact spent the previous night at her house.

There were three other persons that resided at Ms. Thomas’ home during most of the four month period preceding trial. These were Ms. Thomas’ 33 year old son, Freddie Bryan, Ms. Thomas’ aged and ailing mother, and a young woman named Sheila Wade who was paid to look after Ms. Thomas’ mother, and who Freddie Bryan referred to as a girlfriend. Defendant, her son, and Sheila Wade testified that Ms. Thomas and her mother slept in one bedroom, that Ray Rachell slept in the other bedroom, and that Sheila Wade and Freddie Bryan slept in the living room on a couch and roll away mattress, respectively. Both Ms. Thomas and Ray Rachell denied having sexual relations, or ever sleeping with each other. However, Ms. Thomas referred to Ray Rachell as a “close friend” and a “boyfriend.” Ray Rac-hell admitted that he was “dating” Ms. Thomas, and the trial court found as a fact that the parties’ relationship included sexual relations. It appears, moreover, that during the four month period here at issue, Ms. Thomas and Ray Rachell dated each other exclusively.

Several other facts are important in assessing the character of the parties’ relationship. Ray Rachell maintains a separate residence in Crossett, Arkansas. With the exception of a suit of clothes which he sometimes leaves at Ms. Thomas’ Bastrop residence, it appears that he does not keep his clothes at the Thomas residence. He does not keep his toiletries there, but carries his shaving kit with him when he comes over. Mr. Rachell generally goes by his trailer every day after work to shower and change clothes before going to Urslia Thomas’ house to spend the night, and rarely stays at her house more than one night without stopping at his trailer to “put on a clean change of clothes and check [the] mailbox.” Ray Rachell helps Urslia Thomas cook, helps pay for groceries, “double dates” with her and a couple with whom they are acquainted, and Urslia Thomas has introduced him to at least one other party as her “boyfriend.” Mr. Rachell ate Christmas dinner at the Thomas house, and opened presents with the residents there. He does not help pay the utility bills incurred at the Thomas home, and there is no evidence that he assisted Urslia Thomas in paying rent or house notes.

We conclude that the trial court did not err in finding that Urslia Thomas and Ray Rachell were not living in open concubinage between October of 1982 and February of 1983. The evidence preponderates that Ms. Thomas and Mr. Rachell have sustained a habitual relationship of sexual content during that period of time. Indeed, the facts of this relationship present a difficult case and, in time, their relationship might develop into one of verifiable concubinage. Moreover, the distinction between the sustained sexual relations of two people, such as is presented here, and open concubinage, is somewhat elusive and not easily articula-ble.

However, the classic definition of concubinage as living together as man and wife absent the sanction of legal marriage has been consistently reaffirmed in the Louisiana courts through the present time. We believe that, in view of the totality of circumstances of the sustained relationship of Rachell and Ms. Thomas, their relationship approached — without becoming — open concubinage. We encounter little difficulty in finding that the parties’ relationship was “open” since no shams or pretenses were indulged to conceal the sexual content of the parties’ relationship. However, we concur in the trial court’s finding that the parties’ relationship did not constitute concubinage.

Several considerations factor into this determination. It is extremely crucial, in the first instance, that the parties maintained separate residences. This fact is not in and of itself fatal to a finding of concubinage. It is, however, very persuasive. Moreover, Ray Rachell did not keep his clothes or toilet articles at Ms. Thomas’ house, nor does the record indicate that he helped pay for utilities or rental payments. Nor did he welcome her into his own home as a “common law” wife. These factors are merely quantifiable indicia of the larger phenomena, however. What is crucial is that, taken as a whole, their relationship does not indicate that they were living together as man and wife, or setting up a household together, or sharing a fully common life. The evidence indicates, to the contrary, that by perhaps the barest of margins, Rachell and Ms. Thomas maintained enough “separateness” in their lives to distinguish their relationship from a relationship of concubinage. The subtle distinction operative here is that articulated in the leading case of Jahraus: concubinage connotes not acts of sexual intercourse, no matter how frequent or even habitual, but a status or relationship of living together as man and wife absent the lawful sanction of marriage. Simply stated, plaintiff’s proof has not crossed the elusive threshold between habitual relations and concubinage.

We parenthetically note the astute argument of plaintiff’s counsel that the legal content ascribed to the term “open concubinage,” as it appears in Article 160, should be different than the content ascribed to that term as it is employed in Article 1481. Plaintiff’s argument is that the “open concubinage” requirement serves different policy objectives in Article 1481 than it does in Article 160. Whereas open concubinage under Article 160 terminates one’s right to permanent alimony, open concubinage under Article 1481 greatly restricts one’s right to receive donations from one with whom they have lived in open concubinage. Plaintiff argues that less absolute proof and a broader, more easily established standard of open concubinage is appropriate under Article 160, since the openness requirement of Article 1481 was incorporated to reduce inquisition into the lives of the dead who are unable to defend their honor. Plaintiff argues that less stringent proof should be required in proving open concubinage under Article 160, because, by definition, the one against whom proceedings are brought is still living (and collecting permanent alimony), and therefore able to defend himself.

We are unable to accept plaintiff’s contention that a less stringent standard of proof, and a less constant relationship should be required in establishing open concubinage under Article 160 than under 1481. The term open concubinage has a well-established legal significance, and we believe that in employing this term, the legislature intended that it be accorded its traditional and firmly established meaning; had they intended otherwise, they could have employed a different precept which emphasized habitual sexual acts, rather than quasi-marital status.

We note also that the last paragraph of Article 160 terminates an ex-spouse’s right to permanent alimony upon his or her open concubinage or remarriage. Given this context, we believe that open concubinage connotes a quasi-marital relationship. We con-elude, more specifically, that the legislature intended to provide for circumstances in which an ex-spouse might evade the spirit of the law by assuming a relationship which was marital in every respect save legal sanction, and thereby retain the right to permanent alimony. In short, the new amendment prevents ex-spouses from adopting ploys in which they share a connubial relationship, and yet salvage their right to permanent alimony by eschewing marriage. An interpretation of “open concubinage” as a quasi-marital status or relationship is wholly consistent with this common sense construction of the purpose behind Article 160.

For the foregoing reasons, we concur in the trial court’s finding that Urslia Thomas was not living in open concubinage. We accordingly affirm the trial court’s judgment in declining to terminate the plaintiff’s obligation to pay permanent alimony. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . Civil Code Article 1481, reads as follows:
      Art. 1481. Invalidity of donations between persons living in concubinage; exceptions. Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate.

      . The statutory law governing the right to permanent alimony is in a precarious posture presently, there being two versions of Article 160 which are currently enacted into law. The first version of Article 160 was enacted by Act 293 of 1982, and the second version was enacted by Act 580 of 1982. Thus, two versions of Article 160 were enacted in the same year; neither has been repealed. Both versions of Article 160 have been codified in the Revised Statutes under the authority of LSA-R.S. 24:253. Only the version of Article 160 enacted by Act 580 terminates permanent alimony upon a finding of open concubinage. We have assumed, for the purposes of this opinion, that the later enacted version of Article 160, is in effect. Therefore, the statutory analysis contained in this opinion is predicated upon that version of Article 160 enacted by Act 580, which version does terminate an ex-spouse’s right to permanent alimony upon a finding of open concubinage.
      The version of Article 160 enacted by Act No. 293 of 1982 provides that:
      A. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
      In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; and any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.
      B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto. In determining whether to award lump sum alimony, the court shall consider the needs of the claimant spouse and the financial condition of the paying spouse. In awarding lump sum alimony in lieu of or in combination with permanent periodic alimony, the court shall consider the criteria enumerated in paragraph A of this article, except the limitation to one-third of the paying spouse’s income, in determining entitlement and amount of alimony.
      A lump sum award may consist of immovable or immovable property or may be a monetary award payable in one payment or in installments.
      The later enacted version of Article 160 enacted by Act No. 580 of 1982, and relied upon by this court, reads as follows:
      When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.

        This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage. (Emphasis added.)


text:
    STATE of Louisiana, Respondent, v. Felix BRACY, Relator.
    No. 15696-KWJ.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Ned D. Wright & Associates, Monroe, by Daniel P. Parker, Baton Rouge, for relator.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Monroe, for respondent.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Defendant, Felix Bracy, was granted a writ of review from his conviction of criminal neglect of family in violation of La.R.S. 14:74(A)(3). Defendant was sentenced to six months imprisonment without hard labor. The execution of sentence was suspended and defendant was placed on probation for a period of three years with the special condition that he pay $50 per month child support. Defendant assigns as error the failure of the state to prove the necessary criminal intent on his part to sustain a conviction for criminal neglect of family. We find merit in defendant’s argument and reverse the conviction for the reasons assigned.

FACTS

On September 13, 1982, a petition was filed against defendant by the State of Louisiana to have defendant declared the biological father of Marcus Johnson, the 12-year-old child of Juanita Bryant. The action was filed in the Fourth District Court of Ouachita Parish pursuant to La. R.S. 46:236 et seq. Defendant was served personally in Caddo Parish on September 21,1982. He did not answer the petition or appear personally in court. A preliminary default entered on November 8, 1982, was confirmed on November 22,1982, and judgment rendered declaring defendant the biological father of Marcus Johnson. No notice of judgment was served on defendant.

On March 15, 1983, a bill of information was filed charging defendant with unlawfully and intentionally failing to support the minor child Marcus Johnson for the period between December 1, 1982, and February 1, 1983. On trial defendant testified he had not seen Juanita Bryant for approximately 14 years and was unaware of the existence of Marcus Johnson. During this period defendant lived in Shreveport with his wife and two children. Juanita Bryant and the child, Marcus Johnson, resided in Monroe. It was admitted by Juanita Bryant that no demands were ever made by her upon defendant for any support for Marcus Johnson.

ISSUE

Is constructive notice of rendition of judgment by default declaring defendant the biological father of the subject child sufficient to establish the requisite criminal intent on the part-of defendant?

LAW

La.R.S. 14:74(A) in pertinent part provides:

Criminal neglect of family is the desertion or intentional non support:
(3) by either parent of his minor child who is in destitute or necessitous circumstances, there being a duty established by this Section for either parent to support his child. The parents shall have this duty without regard to the reasons and irrespective of the causes of his living separate from the other parent. The duty established by this Section shall apply retrospectively to all children born prior to the effective date of this Section.

The element of intent is an essential ingredient of the offense of criminal neglect of family. State v. Moran, 400 So.2d 1359 (La.1981). General criminal intent is defined in La.R.S. 14:10(2) as follows:

General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

DECISION

The state contends the personal service on defendant of the petition and accompanying citation placed defendant on notice that he was alleged to be the father of the child Marcus and that judgment against him would be rendered in due course if he took no action to defend the proceeding. The state therefore contends this constructive notice is sufficient to supply the necessary intent to support defendant’s conviction.

We cannot agree with this argument. The mere fact that the law does not require the service of a notice of a default judgment on a defendant who has been personally served with the initial citation in a civil proceeding does not mean that the law confers upon the defendant actual knowledge of the judgment’s rendition. We feel that in the instant case, defendants actual knowledge of the paternity judgment rendered against him would be necessary in order for him to form the requisite criminal intent — i.e. to advert to the prescribed criminal consequences as reasonably certain to follow his failure to pay support for Marcus.

In view of the defendant’s testimony that he was never aware of the birth of the child and that no request had been made by the mother for support during all these years, he could reasonably believe that the allegations could not be proven and that there was no necessity for him to take affirmative steps to defend the proceeding. Furthermore, no demand was made by the state on defendant following rendition of the judgment for compliance with the obligation of support for the minor created by the judgment.

The circumstances presented in this instance do not show beyond a reasonable doubt that defendant’s failure to support the minor child during the two-month period immediately following rendition of the default paternity judgment was intentional.

The judgment is reversed, and the matter is remanded with instructions to grant a judgment of acquittal.

REVERSED and REMANDED.