author: CARTER, Judge:

text:
    Janet HOFF v. CANAL REFINING COMPANY, INC. and Stewart Rohner.
    No. 83 CA 0884.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Charles Gary Blaize, Law Office of Keith M. Whipple, Houma, for plaintiff and appel-lee Janet Hoff.
    Frederick A. Campbell, McGlinchey, Stafford, Mintz & Cellini, New Orleans, Grady C. Weeks, Authement & Weeks, Houma, for defendant and appellant Canal Refining Co.
    Before PONDER, WATKINS and CARTER, JJ.

       Ponder, J., dissents from denial of a rehearing.

   CARTER, Judge:

This suit was filed by Janet Hoff against Canal Refining Company, Inc. and Stewart Rohner for damages in the amount of $2,776,000.00 for conversion, false arrest, and malicious prosecution. In her petition, Hoff alleges that Canal, through its agent or employee, Rohner, evicted her from business premises she leased from Canal, confiscated her property located on those premises, and filed unwarranted criminal charges against her which resulted in her arrest.

The record indicates that this lawsuit was filed on April 12,1983, and that service of process was made on the defendant, Canal Refining Company, Inc. on April 15, 1983. The record also shows that no answer or other appearance was made by the defendants in response to this lawsuit, and accordingly, a preliminary judgment by default was entered against Canal on May 3, 1983. Since no answer or other appearance was made by Canal after the entry of the preliminary judgment by default, plaintiff then proceeded on May 9, 1983, with confirming the default and taking a judgment against defendant in the amount of $272,-965.00.

On May 17, 1983, Canal filed a motion for a new trial on the grounds that a verbal agreement had been entered into by the attorneys in this suit. Canal contended that the attorney for plaintiff agreed to allow attorney for defendant extra time within which to plead or file an answer herein. In addition to the motion for a new trial, defendant filed a petition to annul the judgment of May 9, 1983, on the grounds that the judgment was obtained by fraud or ill practices.

A hearing was held on the motion for new trial, and the trial judge ruled in favor of the plaintiff and denied the motion. The proceeding to annul the May 9th judgment is pending.

Defendant-Canal appeals and assigns the following errors:

(1) The trial judge erred in failing to grant Canal Refining Company a new trial because default was confirmed during an extension of time to plead obtained by Canal’s counsel.
(2) The trial judge erred in finding that Canal Refining Company did not obtain an extension of time to respond to the lawsuit.
(3) The trial judge applied an erroneous standard in determining that the default judgment rendered should stand.
(4) The minute entry of the preliminary default did not specifically name Canal Refining Company and therefore was in error.
(5) The trial judge erred in finding that Stewart Rohner was acting for and on behalf of Canal Refining Company when he signed an affidavit charging Janet Hoff with theft.
(6) The finding that the criminal proceeding against Janet Hoff was a malicious prosecution is erroneous.
(7) The damage award made by the trial judge is excessive.

DEFAULT JUDGMENT

On April 12, 1983, Hoff filed suit against Canal and Rohner. Canal contends that the following occurred thereafter. The petition was served on Canal’s agent for service of process on April 15, 1983. Ten days later the law firm of McGlinchey, Stafford, Mintz and Cellini was retained to defend Canal in the litigation. A paralegal who worked for McGlinchey telephoned Hoffs counsel (Law Offices of Keith Whipple) to request an informal extension of time for the filing of responsive pleadings. According to Canal, the paralegal spoke with someone at the Whipple office and obtained a thirty (30) day extension of time. A letter confirming the extension of time was mailed on May 10, 1983.

Plaintiffs counsel denies that the extension was granted. According to plaintiffs counsel, all members of the Keith Whipple firm (Keith M. Whipple, Vanessa Guidry Whipple, and -Charles Gary Blaize) were attending the Bar Association Convention in Paris, France at the time the phone call requesting the extension was made.

Appellants first four assignments of error relate to the default judgment. We will address Assignments of Error three and four first.

Appellant argues in assignment of error no. 3 that the trial judge applied an erroneous standard in determining that the default should stand. In support of his argument, appellant cites the Supreme Court case of Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). In Kem Search, after defendant-Sheffield, himself an attorney, had been served he notified plaintiffs attorney and requested additional time in which to obtain the services of an attorney and to file responsive pleadings. In addition, he requested an opportunity to review the matter with opposing counsel and attempt to work out an amicable settlement. Plaintiffs attorney responded by letter in which he expressed a preference but not a demand that an answer be filed. The court found that the communications and the subsequent actions by plaintiffs attorney were consistent with Sheffield’s understanding that he had been given additional time. The court reversed and annulled the default judgment.

The present case is easily distinguishable. There was no contact between Hoff’s attorney and Canal’s attorney. In fact, Hoff’s attorney did nothing, either by communication or action to indicate that Canal was given an extension of time in which to answer. Clearly, plaintiff’s attorney did not contribute to Canal’s failure to file responsive pleadings. We find no merit in this argument.

Appellant next argues, in assignment of error no. 4, that the minute entry of the preliminary default did not specifically name Canal Refining Company and therefore was in error. In urging this error, appellant contends that where there are multiple defendants and the preliminary default is entered only as to some of those defendants, the preliminary default must specifically name the defendant against which it is directed to validly join issue between the parties. Appellant cites Ashy v. Cosmopolitan Credit & Inv. Corp., 365 So.2d 1171 (La.App. 3rd Cir.1978).

In the instant case, the minute entry in the court record states that “the Court ordered that a Preliminary Judgment by default be entered into this proceeding.” Canal is not named specifically. However, the handwritten copy of the minutes, from which the minute entry is typed, clearly shows that the preliminary default was taken against Canal.

We find no merit in this assignment of error.

In assignments of error nos. 1 and 2, appellant argues as follows:

(1) The trial judge erred in failing to grant Canal Refining Company a new trial because default was confirmed during an extension of time obtained by Canal’s counsel.
(2) The trial judge erred in finding that Canal Refining Company did not obtain an extension of time to respond to the lawsuit.

We have carefully reviewed the record and find that the written reasons given by the trial judge in denying the motion for a new trial correctly dispose of the issues presented in the first two assignments of error. Accordingly, we adopt the reasons given by the trial judge as our own.

The trial judge stated: not admitting) that Ms. Junker did in fact speak to Ms. Ellender about an extension of time, the Court does not believe Ms. Ellender agreed to or mislead Ms. Junker into believing an extension was granted.

“The court, after hearing the testimony of the witnesses on the motion for a new trial is convinced that the defendant has failed to prove by a preponderance of the evidence that counsel for plaintiff agreed and consented to an extension of 30 days within which time defendant could plead.
The evidence established that when the law firm representing defendant became aware of this lawsuit and had been hired to represent the defendant, a paralegal in said office, Claudia Junker, placed a long distance telephone call to the law office of Mr. Keith M. Whipple, in Houma, Louisiana, for the purpose of obtaining an extension of time within which to plead. The phone log filed into evidence shows that on April 25, 1983 at 1:50 P.M., a phone call was placed to Mr. Whipple’s telephone number in Houma and that the phone call was for a total of one minute. Ms. Junker contends that she talked to a secretary in Mr. Whipple’s office during that one minute telephone call and obtained an extension of time of 30 days within which to plead or file a response on behalf of Canal Refining Company, Inc., in this lawsuit. The evidence in support of the contention that an extension was granted consists of the sworn testimony of Ms. Junker, the telephone bill filed into evidence showing that a phone call was made and an office form information sheet filled out by Ms. Junker showing that a telephone call was made to Mr. Whipple’s office and that an extension of time was granted on her request.
On the other hand, counsel for plaintiff offered evidence in the form of the testimony of the secretary to Mr. Whipple, namely, Judy Ellender, who testified that no extension of time was granted, and in fact, she has no recollection of ever receiving the phone call or talking to anyone from the McGlinchey law office about this lawsuit. The record also shows, beyond all doubt, that the three lawyers in Mr. Whipple’s law firm, Mr. Keith Whipple, Ms. Vanessa Guidry and Mr. Gary Blaise were not in the office at that time since they were in route to or had arrived in Paris, France on that date. The record is also absolutely and totally clear and uncontradicted that at no time did any lawyer in the McGlinchey firm ever discuss, confer with, or request personally from an attorney in the Whipple law firm an extension of time in which to plead. The only conversation which could have possibly occurred was the one time when a telephone call was placed by Ms. Junker to the telephone number of Mr. Whipple’s law office. Assuming (but

In addition to the testimony of the secretary in Mr. Whipple’s law office, it has also been established to the satisfaction of this court that no secretary in that law office had or has authority to grant an extension of time, and said employees have never been permitted or allowed to make any agreements or com-mittments on behalf of the attorneys in any lawsuit handled by that law firm. All agreements or accomodations are made solely by the lawyers and while a secretary may have the authority to convey such information to the lawyers, they never are allowed to make that decision and committment on their own.

While the court is not completely familiar with the prevailing practice among lawyers in matters of this kind, (not having engaged in the private practice of law for many years), the court does have a serious doubt that lawyers today permit their secretaries to make binding decisions in lawsuits of this kind, or of any kind. It appears more probable that these type of decisions are made by attorneys, and not by the secretaries. The particular procedure followed more often than not by attorneys, when an attorney needs additional time within which to plead or respond in a lawsuit, is for the attorney to get an extension of time from the Court. By doing so, it is not necessary to make a request of an opponent and depend on his generosity, but rather by seeking the protection and approval of the court, which is always freely given, the attorney is fully protected and runs no risk of a misunderstanding.

The Court also feels that allowing agreements between secretaries or other personnel not attorneys and members, of the firm, is and would be a poor policy at best. It has always been the belief of this court that matters involving.a lawsuit in which the parties are making con-sessions or agreements, that those matters should be left to the lawyers and should not involve the secretaries or other non-lawyer employees in a law office. It is also to be noted that under Rule 18 of this Court, all agreements of counsel, except those made in open Court, must be in writing and bear their signature. While that rule is not inflexible and must be ignored where a travesty of justice has occurred, this Court does not believe that agreements of secretaries or employees of a law office to be binding or should be given the same consideration and enforceability as that of agreements between counsel, particularly verbal agreements. If agreements between counsel must be in writing, it certainly seems that agreements between secretaries should not only be in writing, but must be approved by the attorneys that are involved in that agreement before they become binding.

In conclusion on this point, the Court will restate the reasons why it feels that a motion for a new trial should not be granted:

1. The Court does not believe that counsel for the defendant has established by a preponderance of the evidence that an agreement or understanding was made as a consequence of the phone call on April 25, 1983 granting to defense counsel additional time within which to plead or answer this lawsuit. While the phone call to Mr. Whipple’s office may have been made, there is not sufficient evidence or proof that a commitment was made by someone in that office with authority to do so as to justify the conclusion by this Court that an extension of time was granted to the McGlinchey law firm as contended by them.
2. That since no attorney in the Whipple law firm received a telephone call or other communication from defense counsel, there is no reason to believe that the members of the Whipple law firm knew or were aware of the fact that the McGlinchey law firm was requesting an extension of time within which to plead.
3. And, the court is satisfied that the evidence has proved beyond all doubt that no one out of the Whipple law firm ever agreed to or considered an extension of time within which to plead in this lawsuit.
For these reasons, the court must rule that the defendants are not entitled to a new trial on the grounds that there was an agreement to give them this time to plead and that agreement was breached or violated by counsel for plaintiff.”

MALICIOUS PROSECUTION

In assignment of error no. 5, appellant argues that the trial judge erred in finding that Stewart Rohner was acting for and on behalf of Canal Refining Company when he signed an affidavit charging Janet Hoff with theft.

Appellant contends that documents submitted by plaintiff which allegedly bear Rohner’s signature — the lease of the business premises involved herein, a handwritten list of the equipment, and the Canal dealers consignment agreement — were not properly identified and that the signatures on them were not verified by independent testimony.

The issue of whether or not Rohner was acting for and on behalf of Canal was considered by the trial judge on the motion for a new trial. In his reasons for judgment the trial judge stated:

“In addition to the witnesses that testified on the confirmation of default, there was introduced into the record at the trial, the entire criminal proceeding which lead to this lawsuit. The record of the criminal proceeding was certainly ad-missable on the confirmation of default since the criminal charge was the basis of an important part of Ms. Hoffs claim.
An examination of the criminal proceeding clearly shows that a criminal charge of theft of cash money allegedly belonging to Canal Refining Company was filed by defendant, Stuart (sic) Roh-ner against Miss Hoff. (See affidavit attached to Bill of Information # 128,518, criminal docket of Terrebonne Parish, Louisiana). The record also shows that Miss Hoff was arrested as a direct consequence of the filing of the criminal charge by Mr. Rohner_ The criminal record also shows that on March 25, 1983, a preliminary examination, motion for discovery and motion to suppress was held before a District Judge of this Court, and the transcript of those hearings is also filed in the criminal proceeding and has been made a part of this civil record. During those criminal hearings, Mr. Rohner testified, under oath, (as will be seen by reference to the transcript of the hearing filed herein), that he was employed by Canal Refining Company, defendant herein, and had been so employed for about 20 years. He also testified about his dealings with Janet Hoff on behalf of Canal Refining Company....
The record is also clear that Mr. Roh-ner was an employee of Canal Refining Company and acting for and on behalf of that Company when he filed the criminal charge that gave rise to this civil lawsuit.”

It is clear that the trial judge relied mainly on the testimony given by Rohner at the preliminary examination in finding that Rohner was acting for and on behalf of Canal when he instituted the charges against Hoff. We cannot say that he erred in so doing and we find no merit in appellant’s argument on this issue.

In assignment of error no. 6, appellant argues that two of the elements required for a prima facie case of malicious prosecution were lacking, i.e., plaintiff failed to establish the absence of probable cause for the criminal proceeding or the presence of malice.

The elements necessary to support a claim for malicious prosecution are:

1. The commencement or continuance of an original criminal or civil judicial proceeding.
2. Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
3. Its bona fide termination in favor of the present plaintiff.
4. The absence of probable cause for such proceeding.
5. The presence of malice therein.
6. Damage conforming to legal standards resulting to plaintiff.

Hibernia Nat. Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980).

In an action for malicious prosecution the burden is ordinarily upon plaintiff to prove both malice and the absence of probable cause. But the authorities have firmly established the rule that where a committing magistrate, without a trial, has discharged the accused, or the prosecuting officer has dismissed the charge, or where a grand jury has returned a no true bill, there is presumption of want of probable cause with the result that, in a suit for malicious prosecution based on that discharge, the burden of showing that he acted on probable cause and without malice is upon the defendant. Robinson v. Rhodes, 300 So.2d 249 (La.App. 2d Cir.1974), writ refused, 303 So.2d 178 (La.1974).

In the instant case, the minutes of the criminal proceeding against Hoff clearly reflect the fact that a nolle prosequi was entered. In addition, the assistant district attorney prosecuting the charges against Hoff stated for the record that “a Preliminary Examination Hearing was had and No Probable Cause was ordered by the Court.” Based on this, plaintiff has established a prima facie case of malicious prosecution. Therefore, appellant bears the burden of showing that Rohner acted on probable cause and without malice.

Appellant relies on Rohner’s testimony given at the preliminary examination in order to sustain its burden. Rohner testified that he went to the Canal station on June, 22, 1982, in order to get “a week’s receipts of consigned products that we had to collect for.” He further testified that Hoff was not at the Canal station, nor could he reach her at her apartment. It was at this time that he contacted the police.

At the close of the preliminary examination, Hoffs attorney argued that Hoff was not an employee of Canal, but rather—pursuant to the various agreements—was the holder of a franchise. Therefore, if Hoff left town with a week’s worth of receipts from the service station, Canal could allege that the money was owed, but Canal could have no grounds to allege that the money was stolen. See Harvey v. Bertaut, 303 So.2d 211 (La.App. 4th Cir.1974).

The issue of whether or not plaintiff has proven all of the elements of malicious prosecution was considered by the trial judge on the motion for a new trial. In his reasons for judgment, the court stated:

“The Court is also convinced that Miss Hoff has established by a preponderance of the evidence that the defendants herein falsely maliciously accused Miss Hoff of a serious criminal offense for which they had no proof that she was guilty.”

Based on the outcome of the criminal proceeding and appellant’s failure to rebutt plaintiff’s prima facie case, we find no error in the ruling of the trial court on this point.

DAMAGES

In this last assignment of error, appellant argues that the damages awarded by the court are excessive, are not supported by the evidence, and should be reduced.

The trial court awarded the following amounts:

(1) $35.00 meter deposit;
(2) $8,000.00 stock and merchandise;
(3) $12,430.00 for the business movables;
(4) $10,000.00 for unlawful conversion;
(5) $50,000.00 for false arrest and imprisonment;
(6) $13,500.00 lost past income;
(7) $18,000.00 future loss of income;
(8) $1,000.00 criminal bond;
(9) $10,000.00 attorney’s fees for Whipple’s defense in the criminal matter;
(10) $150,000.00 for humiliation, embarrassment, anguish, stock, mental agony and pain, suffering, loss of character and reputation, both past and future; TOTAL JUDGMENT: $272,965.00

We will now address the arguments made by appellant concerning several of the above items of damage.

Regarding items (2) and (3), Hoff testified that after she took over the business she added $8,000.00 to $9,000.00 worth of stock to the business and that the $12,-430.00 represented certain movables which she had purchased from Canal at the time she leased the business premises. She testified that this sale was made on credit and that she still owed Canal $9,937.97 of the purchase price.

Plaintiff offered no proof that she had added $8,000.00 worth of stock, thus we deny recovery on this item. In addition, we reduce the $12,430.00 awarded for the movables to $2,492.03, which represents that amount that had been paid by plaintiff for those .items.

Next, we consider items (5) and (6) which represent damages for past and future earnings loss. Hoff testified that when she was running the station she was earning $1,500.00 to $2,000.00 per month. However, after she was arrested and during the time charges were pending (a nine month period) she could not obtain employment. The trial judge awarded her $1,500.00 for nine months, totaling $13,-000.00. We find no error in this award. However, we find that the $18,000.00 for future earnings loss to be speculative, and therefore, we reverse this portion of the award.

Lastly, appellant argues that the $200,-000.00 for nonpecuniary damages is excessive. Hoff testified that as a result of the charges filed against her, she was arrested and spent eleven (11) days in jail. Aside from the testimony of Hoff that she had nightmares about the time spent in jail and that subsequent to the arrest friends and acquaintances “just don’t want me around,” there was no medical or expert testimony to verify these subjective complaints.

The trier of fact is given much discretion in awarding damages. LSA-C.C. art. 1934(3). The appellate court, in reviewing an award to determine if there has been an abuse of this “much discretion”, must look first to the facts and circumstances surrounding the particular case. If it is determined that the award is either excessive or inadequate, the court may then use prior awards to aid it in fixing an appropriate award. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The reviewing court may then amend the award such that it is lowered to the highest or raised to the lowest point which is reasonable within the discretion afforded the trier of fact. Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979).

We find that the highest amount which may be awarded to Hoff, as within the reasonable discretion of the trial court, is $25,000.00. See Lewin v. First Paratransit Corp., 387 So.2d 1254 (La.App. 1st Cir.1980), writ denied 394 So.2d 607 (La. 1980); Graf v. McCrory Corp., 368 So.2d 1217 (La.App. 4th Cir.1979); Jefferson v. S.S. Kresge Co., 344 So.2d 1118 (La.App. 3rd Cir.1977).

Accordingly, the amounts awarded by the trial court are amended, and the following damages are awarded:

(1) $35.00 meter deposit;
(2) $2,492.03 for business movables;
(3) $10,000.00 for unlawful conversion;
(4) $13,500.00 for lost past income;
(5) $1,000.00 for criminal bond;
(6) $10,000.00 for attorney fees; and,
(7) $25,000.00 general damages for malicious prosecution and imprisonment, humiliation, embarrassment, anguish, shock, mental agony and pain, suffering, loss of character and reputation, both past and future.
TOTAL JUDGMENT: $62,027.03
Costs are to be paid by plaintiff-appellee.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The judgment of default was rendered only against Canal Refining Company, Inc. No mention was made of Stewart Rohner.

      . The handwritten minutes for Janet Hoff v. Canal Ref. Co., Inc., Docket No. 71915, dated May 3, 1983, provides as follows:
      “P.D. as to Canal Ref. Co. Inc."

      . We note that false imprisonment and malicious prosecution are distinct and separate theories of recovery. Cf. Tillman v. Hokum Bakeries, Inc., 244 So.2d 681 (La.App. 4th Cir.1971), application denied, 258 La. 352, 246 So.2d 199 (La. 1971). Cf. also, O'Conner v. Hammond Police Dept., 439 So.2d 558 (La.App. 1st Cir.1983).

      . The $200,000.00 represents the trial court award of damages of $50,000.00 for "false arrest and imprisonment” and the general damages of $150,000.00. Cf. O’Conner v. Hammond Police Dept., supra, for excellent discussion of limitations on actions for false arrest.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Cecil J. BIZETTE, Individually and on Behalf of His Minor Daughter, Deanna Bizette v. STATE FARM INSURANCE COMPANY.
    No. 83 CA 0936.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.
    Michael W. McKay, Baton Rouge, for plaintiff-appellant Cecil J. Bizette, individually and on behalf of his Minor Daughter, Deanna Bizette.
    Joseph R. Ward, Jr., New Orleans, for defendant-appellee State Farm Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On October 11, 1981, Cecil J. Bizette’s (plaintiff) minor daughter Deanna (age 9) was playing with a friend, Kristi McGowan, in the neighborhood where they lived in Baton Rouge. Jack F. Hall (defendant) was a neighbor of the Bizettes. Hall’s back yard was completely surrounded by a four-foot hurricane fence on one side and along the back and a six-foot wooden fence along the other side. The wooden fence was connected to the house by a short section of hurricane fence and a gate. The gate was normally kept padlocked and on this day was so locked. There were a number of large trees in defendant’s back yard. One tree had nailed to it a number of two-by-four wooden lengths which formed a ladder leading up into the tree. Defendant testified that these boards were nailed to the tree to enable him to climb the tree to prune limbs that might fall across the service drop from a nearby utility pole to his house.

Deanna and Kristi had decided to climb a bush in another neighbor’s back yard. Upon seeing the rungs on the tree in defendant’s yard, Kristi suggested that they climb that tree, and Deanna readily agreed. The two girls climbed defendant’s hurricane fence and entered his yard.

When installing the rungs, defendant had placed the bottom rung high enough to prevent a person from climbing without first using a ladder to reach the bottom rung. In fact, he stated that he had to use a ladder to reach the bottom rung, and “I had them up high enough [so] you couldn’t have pulled yourself up on one and reached the other.” Confronted with this situation, the two girls decided that Kristi, the taller of the two, would hoist Deanna up to the bottom rung. As Deanna continued to climb, she reached the top rung which gave way under her weight. Deanna fell to the ground and sustained a fracture of her left femur. Plaintiff brought this suit for her damages. A jury trial was held. The jury answered the pertinent interrogatories propounded them as follows:

“1. Was Mr. Jack F. Hall custodian of a defective thing? Yes _x_ No _
2. Did the defective thing create an unreasonable risk of harm? Yes _ No _x_
3. Were Deanna Bizette’s injuries caused by the defective thing? Yes _x_ No _

The trial court rendered judgment dismissing the case on the basis of the answers to the interrogatories. Plaintiff has appealed, assigning as error the findings that the defective rung did not create an unreasonable risk of harm and that the injured child assumed the risk of her injuries.

In Entrevia v. Hood, 427 So.2d 1146 (La.1983), our Supreme Court considered the question of the liability of a property owner for damage occasioned by another due to some defect found on the property owner’s premises. Where the injured person can prove that the risk from which his damage resulted was caused by a defect in a thing of which the defendant had the custody or control under La. C.C. art. 2317, the custodian will be deemed strictly liable for those damages if he can show that that risk was an unreasonable one. The court emphasized that the defendant “cannot be held responsible for all injuries resulting from any risk posed by his [defective item], only those caused by an unreasonable risk of harm to others.” (Emphasis added.) Entrevia, 427 So.2d at 1149. The court further noted that since Article 2317 contains a “general precept,” it did not form a simple rule of law amenable to mechanical application but required the interpreter to decide which risks are encompassed by the Codal obligations “from the standpoint of justice and social utility.” It went so far as to suggest that the judge in applying the law to the facts of a given case should “consider the particular situation from the same standpoint as would a legislator regulating the matter .... [He] must consider the moral, social and economic values as well as the ideal of justice in reaching an intelligent and responsible decision.” Its final observation regarding this quasi-legislative role to be played by the judge, borrowed from its earlier decision in Langlois v. Allied Chemical Corporation, was that liability without negligence is to be determined

after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations.

In order to aid the judge in his task, the Entrevia court suggested that a “useful approach” in deciding an Article 2317/strict liability case may be to ask whether the custodian of a thing, with his presumed knowledge of its condition, would have been acting reasonably by maintaining it and exposing it to others. However, that inquiry was deemed “indirect and entirely unnecessary” once the judge understood that “the standards or patterns of utility and morality which [the judge] must consider in deciding if a risk is unreasonable will be found in the life of the community.” Entrevia, 427 So.2d at 1150.

We now turn to the jury verdict and interrogatories upon which judgment was based. The first one, finding the defendant to be the custodian of a defective thing, is clearly supported by the record. The tree was in defendant’s back yard; the defective thing was the top rung which came off and caused Deanna’s fall and injury. There was some dispute as to whether the wood had rotted in the rung or not. Defendant testified that it had not rotted but that the nails holding it up had rusted and weakened, allowing the rung to slip off over the heads of the nails. Regardless of the reason for the failure of the rung, the fact that it did fall under the weight of a 8-year-old girl shows that it was defective. The third interrogatory found that the defective thing was the cause of Deanna’s injuries. Clearly, it was a cause of her injuries; but for the failure of the rung, she probably would not have fallen from the tree.

The jury answered, “No” to the second interrogatory: “Did the defective thing create an unreasonable risk of harm?” It is illuminating, when examining this interrogatory and response, to consider the charge given the jury by the trial judge. To educate the jury as to the proper considerations in determining the unreasonableness of a risk, the court followed the admonishment in Entrevia closely:

Now, this unreasonable risk [of] harm criteria is not a simple rule of law which can be applied mechanically in each case. In trying to ascertain whether or not something posed an unreasonable risk of harm, the law provides that [t]his concept envisions the use of or the consideration of moral, social and economical values, as well as the idea of justice. All these will be considered in reaching an intelligent and responsible decision.
Of course, in considering whether or not something posed an unreasonable risk of harm you should consider all the facts in the case: the thing, the location, the likelihood of use. All of the facts should be considered in determining whether or not there was an unreasonable risk of injury.

Keeping in mind that this court is to seek standards and patterns of utility and morality in ttye “life of the community,” we find the jury’s finding of “No” to the question of unreasonable danger highly persuasive. What better counsel could this court have in assessing community standards of utility and morality in its limited role as legislator (see Entrevia) than the verdict reached by the jury, “twelve good men, and true”? Peers of the parties have concluded that the evidence did not support the unreasonableness of the danger presented, and we are unable to find them clearly in error.

Moreover, applicable jurisprudence since Entrevia confirms the wisdom of this jury’s findings. The Supreme Court in Guillot v. Fisherman’s Paradise, Inc., 437 So.2d 840 (La.1983), granted recovery to the parents for the wrongful death of their child who drowned in a sewerage oxidation pond. In determining that the pond created an unreasonable risk of danger, the court noted that the risk could have been “easily eliminated by the installation of a fence or other enclosure sufficient to keep children out/’ Guillot, 437 So.2d at 844. This court, in McGee v. McClure, 442 So.2d 625 (La.App. 1st Cir.1983), writs denied, 444 So.2d 1225 (La.1984), refused to find an unreasonable risk of harm where a child drowned in a rural waterfowl breeding pond. Although the pond had been fenced, the gate had been left open for a short time, allowing the child to wander in. In the instant case, we note that although the accident occurred in an urban, well-populated area, defendant’s yard was enclosed by a fence and a locked gate. Additionally, the lowest rung of the make-shift ladder was placed at a height which required defendant to use a regular ladder to assist him in mounting its lowest rung. Deanna’s willful, determined action in concert with Kristi resulted in her reaching the top rung of the ladder — a place she knew she should not have been.

The testimony which the jury considered showed that these girls had been recently warned about the dangers connected with tree climbing and that they knew they would have been denied permission to climb defendant’s tree had they asked. The jury found her action “assumption of the risk.” We decline to go that far, but we are certainly reminded of the Entrevia trespasser and the inquisitive child in McGee.

For the foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit is affirmed. Costs of this appeal are taxed to plaintiff.

AFFIRMED.

      . 258 La. 1067, 1084, 249 So.2d 133, 140 (1971).

      . Interrogatory No. 5: "Did Deanna Bizette as- Yes x No sume the risk of the injuries she sustained?


author: COVINGTON, Judge.

text:
    E. Stanley ANDERSON v. Freda O. GREEN.
    No. 83 CA 0942.
    Court of Appeal of Louisiana, First Circuit
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.

      Jesse P. LaGarde of Edwards & La-Garde, Amite, for E. Stanley Anderson.
    Richard D. McShan of Law Offices of W. Hugh Sibley, Greensburg, for Freda 0. Green.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The plaintiff, E. Stanley Anderson, sued Freda 0. Green, the defendant, for the balance due on a contract for the construction of a gravel road and installation of drainage culverts on her property. The defendant reconvened for damages for defective workmanship and for a defective culvert. The trial court awarded the plaintiff the sum of $19,615.00, representing $22,615.00 for the amount of the contract, and extras, subject to a credit of $2,000.00 previously paid, and less $1,000.00 for repair of the road. From this judgment defendant has appealed. We amend, and affirm as amended.

Defendant, Freda O. Green, and her daughter, Carol Amato, are the owners of about 130, acres in rural Tangipahoa Parish. During the spring of 1981, Mrs. Green contacted Stanley Anderson to see about having a road built on the property. This road was to be built with the necessary culverts, so that Mrs. Green and her daughter would have a roadway back to houses which they planned to construct on the property. Mrs. Green met with Mr. Anderson on the property, at which time she explained the project. Thereafter, he sent her an estimate of the cost of the project in the amount of $14,800.00. No plans or specifications were provided by Mrs. Green, and Mr. Anderson did not specify exactly what work he planned to do in fulfilling the contract, but a tankcar was to be used as a culvert. No action was taken after this meeting because Mrs. Green was not ready to start the project. Approximately eight months later, Mrs. Green contacted Mr. Anderson about proceeding with the project. At this time they agreed on the contract price. There was some discussion about the type of culvert; but the tankcar agreed upon in the original proposal was no longer available, so Mr. Anderson substituted an arched metal pipe between six and seven feet in diameter, with several metal struts and a wire grid or grate on the upstream end to keep out debris, to be used as a culvert so the roadway could cross the stream running through the property. From the record we determine that the contract price was $14,-800.00. Mr. Anderson testified that was the price quoted to Mrs. Green and to which she agreed. A copy of this proposal is in evidence.

The record establishes also that additional work was required to complete the project, such as a reinforced concrete slab over the culvert in the stream, a wingwall and a guard rail, and that the extras ordered by Mrs. Green amounted to $4,615.00. We figure the total price, including the extras, to be $19,415.00. Of this amount, Mrs. Green has paid the sum of $2,000.00, for which she is entitled to receive a credit, leaving a balance due of $17,415.00.

In a building contract case, the contractor is entitled to recover the contract price even though defects or omissions are present when he has “substantially performed” the contract. “Substantial performance” in such ease means that the construction is fit for the purpose intended despite the deficiencies. This is a factual determination to be made by the trial judge. Factors bearing on this factual determination include: the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Rudy Brown Builders, Inc. v. St. Bernard Linen Service, Inc., 428 So.2d 534 (La.App. 4th Cir.1983).

There was considerable testimony on behalf of both parties concerning the performance of the contract, the quality of the workmanship and the suitability of the metal pipe as a culvert. These issues were resolved in favor of the contractor by the trial judge. Our review of the record leads us to the conclusion that the trial judge was not clearly wrong in the fact-finding that the contractor had substantially performed the contract. Pete’s Plumbing and Heating, Inc. v. Geissert, 413 So.2d 554 (La.App. 4th Cir.1982).

Where there has been substantial performance of the contract, the remedy of an owner who complains of the defective or incomplete work is to prove (a) the existence of the defects or omissions and (b) the cost of repairing the defective work or completing the unfinished work. If the owner discharges his burden of proof, recovery by the contractor of the total contract price will be reduced by the cost of correcting or completing the work. LSA-C.C. art. 2769; Design & Corrosion Engineering, Inc. v. Piggly Wiggly of Mansfield, Inc., 408 So.2d 292 (La.App.2nd Cir. 1981). The trial court allowed the owner the sum of $1,000.00 for repairs to the roadway. The record supports this amount. Deducting this amount from the balance of the contract price and extras due to Mr. Anderson leaves an amount of $16,415.00. This figure represents the correct amount to which the contractor is entitled, as reflected by the record. Thus we amend the judgment appealed to reduce the award from the sum of $19,615.00 to Mr. Anderson to the sum of $16,415.00, with legal interest. As amended, the judgment is affirmed. All costs to be paid by appellant, Freda O. Green.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    Nina S. BROYLES v. G. Rodney HART.
    No. 83 CA 1100.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Edwin W. Fleshman, Baton Rouge, for plaintiff-appellant Nina Sue Broyles.
    Myron A. Walker, Jr., Baton Rouge, for defendant-appellee George Rodney Hart.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of her suit on exceptions of lack of personal and subject matter jurisdiction and insufficiency of service of process. The issues are: (1) whether the East Baton Rouge Parish Family Court has subject matter jurisdiction over a suit seeking recognition of a foreign judgment accruing back-due child support payments; and (2) whether the Long-Arm Statute, LSA-R.S. 13:3201, et seq., may be used to obtain personal jurisdiction over a non-resident defendant in such suit.

We reverse and remand.

Plaintiff and defendant were separated by judgment of a Louisiana court. Thereafter, plaintiff remained in this state with the minor children of the marriage while defendant changed his domicile to Alabama. In that state defendant later obtained a final judgment of divorce, which also awarded custody of the children and $900.00 per month alimony and child support to plaintiff. Years later, plaintiff sued in Louisiana to have the Alabama judgment recognized and made executory. One month later, the same Alabama court rendered judgment terminating $350.00 of the original in globo award and continuing $550.00 per month as child support, as well as setting arrearages in child support payments at $2,725.00. Thereafter, plaintiff filed this suit requesting that: (1) the latest Alabama judgment be recognized and made executory, (2) the child support award be increased, (3) custody of the minor children be made joint, and (4) defendant be required to maintain life and health insurance. Plaintiff expressly relied on the Long-Arm Statute for service of process on defendant, who continues to reside in Alabama.

Defendant filed an exception of lack of personal jurisdiction; subsequently he filed supplemental and amending pleadings excepting to lack of subject-matter jurisdiction and insufficiency of service of process. The trial court rendered judgment sustaining defendant’s exceptions and dismissed plaintiffs suit. The court did not favor us with reasons for judgment, despite plaintiff’s timely request for written reasons under LSA-C.C.P. art. 1917.

SUBJECT MATTER JURISDICTION

Defendant contends that plaintiff’s suit must be brought in civil district court, rather than in the Family Court. He relies upon LSA-R.S. 13:1401, arguing that the statute delineating the court’s jurisdiction does not include suits for the recognition of foreign judgments.

Section 1401 provides that the court’s jurisdiction is exclusive in all matters involving or incidental to the support of children. Suit for recognition and enforcement of a foreign judgment setting arrearages of child support payments must be brought in the Family Court. See De-Haven, 412 So.2d 537 (La.1982) and Childers v. Childers, 373 So.2d 1388 (La.App. 1st Cir.1979).

Therefore, the trial court erred in sustaining defendant’s exception of lack of subject-matter jurisdiction.

PERSONAL JURISDICTION

Defendant argues that plaintiff’s suit for recognition of a foreign judgment is not a cause of action covered under the Long-Arm Statute, R.S. 13:3201. We disagree. When the foreign judgment cancels an in globo award of alimony and child support, sets the amount of future child support payments and determines arrear-ages of past due child support payments, a suit for its recognition and enforcement may be brought under subsections (f) and (g) of the Long-Arm Statute.

Our jurisprudence provides that § 3201 must be liberally interpreted in favor of finding jurisdiction. Thompson v. Great Midwest Fur Co., 395 SO.2d 840 (La.App. 1st Cir.1981). Louisiana’s Long-Arm Statute was adopted to permit the courts of this state to tap the full potential of in personam jurisdiction over non-residents consistent with the Due Process clause of the Fourteenth Amendment. Clay v. Clay, 389 So.2d 31 (La.1979). There are sufficient contacts to meet the due process requirement of “fundamental fair play”. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

For these reasons, the trial court erred in sustaining defendant’s exception of lack of personal jurisdiction.

SUFFICIENCY OF SERVICE OF PROCESS

In a suit brought under the Long-Arm Statute, service of process may be made by sending a certified copy of the citation and petition to the defendant by registered or certified mail. LSA-R.S. 13:3204.

The record reveals that service was made by plaintiff on defendant in accordance with the terms of § 3204. Thus, the trial court erred in sustaining defendant’s exception of insufficiency of service of process.

We do not consider defendant’s attack upon the prior judgment of the Family Court (rendered and signed October 19, 1982) recognizing and adopting the first Alabama judgment, since collateral attack upon the validity of a final judgment is not permitted. The law is clear that a judgment may be attacked in an ordinary proceeding only. LSA-C.C.P. arts. 2001-2006; Meunier v. Meunier, 437 So.2d 370 (La.App. 4th Cir.1983); Thibodeaux v. Duos, 343 SO.2d 441 (La.App. 3rd Cir.1977).

For the foregoing reasons, the judgment dismissing plaintiff’s suit is reversed. The case is remanded for further proceedings not inconsistent with this decision. All costs are to be paid by defendant-appellee.

REVERSED AND REMANDED.

      . LSA-C.C.P. art. 1152 prohibits amendment of a declinatory exception “so as to plead an objection not attempted to be set forth in the original exception.” Thus, the trial court erred in allowing defendant to amend his declinatory pleadings to assert insufficiency of service of process. However, the exception of lack of subject matter jurisdiction is not subject to the waiver provisions generally affecting declinatory exceptions and may be raised at any stage of the proceedings. Piper v. Olinde Hardware & Supply Company, Inc., 288 So.2d 626 (La.1974). Thus, we find that amendment of defendant's declinatory exception to plead this issue was not improper.

      . LSA-R.S. 13:1401 provides in pertinent part:
      There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
      * * * tff * *
      (7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board.

      . LSA-R.S. 13:3201 provides in pertinent part: Personal jurisdiction over nonresidents A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s:
      ******
      " (f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of - support is owed and with whom the nonresident formerly resided in this state.
      (g) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.”

      . LSA-R.S. 13:3204:
      A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general jurisdiction. Service of process so made has the same legal force and validity as personal service on the defendant in this state.


text:
    STATE of Louisiana v. Donald Ray ROBERTSON.
    No. KA 83/1439.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Oct. 26, 1984.

      Ossie Brown, Dist. Atty. by Bob Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Richard Upton, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Donald Ray Robertson, defendant, was convicted of aggravated rape in violation of LSA-R.S. 14:42, and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals on the basis of four assignments of error.

FACTS

On October 17, 1980, at approximately 11:30 p.m., while the victim was hanging out clothes from her washing, she was attacked by an assailant brandishing a large knife. He held the knife to her body and repeatedly threatened to kill her if she called for help. The victim was commanded to go to a nearby lot. She was forced to remove her clothing, was blindfolded, and made to submit to several acts of sexual intercourse upon threat of death. After a period of time, the assailant dropped the knife, whereupon the victim tore off her blindfold, recognized her attacker as the defendant and ran to safety at a neighbor’s house. She furnished the police with the name “Donald” and a description of her assailant, and the defendant was arrested in the vicinity of the scene of the crime shortly thereafter.

ASSIGNMENTS OF ERROR

1. The jury erred in finding that there was sufficient evidence to support a determination that one of the essential elements of the crime, i.e. “penetration,” had occurred.

2. The jury erred in finding that there was sufficient evidence to support a determination that the victim was prevented from resisting the act of rape by threats of bodily harm accompanied by the apparent power of execution.

3. The jury erred in finding that the identification of the defendant by the victim was accurate.

4. The trial court erred in allowing the prosecution to introduce into evidence the picture of Donald Singleton over the objection of defense counsel.

ASSIGNMENT OF ERROR NO. 1: SUFFICIENCY OF THE EVIDENCE CONCERNING PENETRATION

In this assignment, defendant argues that the verdict was contrary to the law and evidence because of lack of proof of vaginal penetration.

At the time of the crime, LSA-R.S. 14:42 defined aggravated rape as:

[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) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense....

LSA-R.S. 14:41 provides (in pertinent part):

Emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

Therefore, penetration of the victim as stated in the statutes is an essential element of the crime; emission is not.

Needless to say, the prosecution is required to prove beyond a reasonable doubt every element necessary to constitute the crime charged. La. Const. 1974, Art. 1, sections 2 and 16. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that to satisfy the Due Process Clause of the Fourteenth Amendment of the United States Constitution, the standard of review guiding an appellate court in determining whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. This standard of review has been adopted as the appropriate standard by the Louisiana State Supreme Court. See State v. Williams, 423 So.2d 1048 (La.1982).

In the case at bar it was .necessary that the state prove beyond a reasonable doubt the essential element of sexual penetration, however slight. Without quoting all of the testimony of the victim, a fair summary of her testimony is that the assailant’s penis penetrated her vagina. She testified positively that the assailant entered her — “he was inside of me.”

Based on the victim’s testimony and her description of the physical contact between her and the defendant, the jury, based on their common knowledge and understanding of the human anatomy, male and female, could rationally, and obviously did, conclude that there was vaginal penetration. The evidence was sufficient to support the findings of sexual penetration beyond a reasonable doubt. State v. Rives, 407 So.2d 1195 (La.1981).

The state presented testimony of Dr. Paul Jackson, obstetrician-gynecologist and a rape crisis volunteer, who attended the victim on the night of the crime. He testified that the victim was in her menstrual cycle at the time; and, even if sexual emission had occurred, the sperm could have been washed out with the blood. However, the doctor testified that the victim suffered an abrasion on her left knee, corroborating the victim’s statement that she fell while finally escaping from her assailant, and otherwise supported her testimony to the extent scientifically possible under the circumstances.

Detective Felix Rodriquez, of the Baton Rouge City Police, responded to the call and found her “practically nude ... hysterical and ... crying” at her house following the incident. He testified to her condition as he observed her. Sergeant Julius O’Brien of the Baton Rouge City Police found at the crime scene “the victim’s underwear, a piece of a Kotex, her clothing” and a cap which had been worn by the defendant.

The above testimony is supportive of the victim’s version of the attack. She testified that the defendant performed a number of acts of sexual intercourse, but was having difficulty due to her fear. At knife-point, she was forced to submit, both from behind and with the defendant on top of her. Her testimony was positive about the sexual penetration. Although being in her menstrual cycle and in great fear, she was not positive about emission. The presence of male spermatozoa may establish sexual contact, yet the lack of spermatozoa does not indicate that no sexual contact or penetration has occurred. “Penetration, however slight” completes the sexual act, if the other factors are also present, and this may not lend itself to objective scientific analysis. At one point during sexual intercourse, the defendant dropped the knife, and the victim escaped and ran naked to a nearby apartment house for help. The victim’s testimony was positive concerning this essential element of the crime. The victim’s clothes left at the scene of the crime, the abrasions suffered while making her escape, the duration of the attack, and her distraught condition corroborate her testimony concerning the rape.

In State v. Rives, supra at 1197, the Court stated:

The evidence was clearly sufficient to convince a reasonable factfinder beyond a reasonable doubt of defendant's guilt on both counts. See State v. Byrd, 385 So.2d 248 (La.1980); State v. Parish, 405 So.2d 1080 (La.1981) (No. 80-KA-1769). Despite the absence of scientific evidence of sexual intercourse, the testimony of the victim was sufficient to establish “sexual penetration”. R.S. 14:41 provides that “emission is not necessary” and that “any sexual penetration, however slight, is sufficient to complete the crime.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2: SUFFICIENCY OF THE EVIDENCE CONCERNING THE USE OF FORCE BY THE DEFENDANT AND RESISTANCE OF THE VICTIM

In this assignment, defendant argues that there was not sufficient evidence introduced at the trial “to prove that a weapon was involved in the commission of the crime.”

The victim testified that she was hanging up her children’s clothes to dry at about 11:30 p.m.; her husband and children were asleep. She was outside her apartment hanging the clothes when she was approached from behind by an assailant who held his hand over her mouth, threatened her life if she screamed, and held a knife against her body. She was taken almost a block away to a nearby lot, forced to undress, and at knifepoint forced to submit to sexual intercourse. The attack lasted about forty-five minutes. During that time, the victim was in fear for her life because of the knife.

The victim’s testimony clearly establishes that she was prevented from resisting the act because the attacker was armed with a dangerous weapon, to-wit, a large knife like a hunting knife, which the victim described. LSA-R.S. 14:42(3). The evidence also clearly establishes that the victim was prevented from resisting the act by repeated threats of death accompanied by the apparent power of execution, i.e., the perpetrator was armed with a large knife which he threatened to use. State v. Rives, supra; State v. Crochet, 354 So.2d 1288 (La.1977). The victim testified that she was forced to submit because the defendant threatened to kill her. Thus, a rational trier of fact viewing the evidence in the light most favorable to the prosecution could have concluded that the elements of the crime of aggravated rape were proven beyond a reasonable doubt. State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983), writ denied 442 So.2d 460 (La.1983).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3: IDENTIFICATION OF THE DEFENDANT

The defendant argues that based on the testimony of witnesses, the jury could not have found that the victim’s identification of the defendant as her attacker was correct beyond a reasonable doubt.

In State v. Newman, 283 So.2d 756 (La. 1973), the Louisiana State Supreme Court stated three factors to be considered to determine whether a witness’ in-court identification was based on an independent source. These are: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during and after the offense; and (3) the circumstances in which the observation was made; including illumination at the scene, the physical capacities of the witness and the emotional state of the witness at the time of the observation.

The above factors, considered in relation to the identification of the defendant herein, are fully satisfied. The victim was acquainted with the defendant, and testified that she had seen him in the neighborhood. She got a good look at the assailant when she was fighting to escape, which she was able to do after the attack had gone on for some forty-five minutes. During the continued struggle, she was able to get free of the blindfold. She recognized the defendant at that time and her description of the defendant and his clothes was accurate. The defendant was apprehended soon thereafter, and his attire and features matched her description. Further, when the defendant was arrested, his pants were unzipped and there were bloodstains on his underwear. Although the area where the rape occurred was not well lit, Sergeant Julius O’Brien of the Baton Rouge City-Police, Sex Crimes Unit, testified that there was sufficient illumination at the scene to see clearly. When asked on cross-examination if one could see clearly and recognize another person from a close distance at the scene, the officer responded affirmatively. To further corroborate the defendant’s presence at the scene, the defendant left at the scene of the crime a cap he had borrowed from a friend. When the defendant was arrested, the friend who had lent the cap was trying to get it back, and the defendant indicated that he had lost it. The evidence clearly demonstrates that the defendant lost the cap at the scene during the struggle when the victim escaped.

Further, at a 6-man lineup on October 22, the victim, without hesitation, picked the defendant as the man who raped her.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4: • PHOTOGRAPHIC EVIDENCE

The defendant argues that the prosecution should not have been allowed to introduce in evidence a picture of Donald Singleton for the purpose of showing that he and the defendant did not look alike. (Donald Singleton was the person who was talking with the defendant when the defendant was arrested.) Keith Olexy, an investigator with the East Baton Rouge Parish District Attorney’s Office, testified that he interviewed Donald Singleton on the night of the incident and on two occasions thereafter. In establishing a foundation for introduction of the photograph of Singleton, the state brought out evidence concerning his identification. On cross-examination by the defense, Olexy testified that he recognized Singleton from the photograph, but that his hair was a little longer on the night in question. He also testified that Singleton’s appearance did not change during the investigation. The defense objected to the introduction of the photograph on the basis that the prosecution had not proven that the photograph was of the same Donald Singleton. The evidence refutes this argument. The investigator made a positive identification. In brief, the defendant argues that an insufficient foundation was laid for introduction of the photograph. A new basis for objection cannot be raised for the first time on appeal. State v. Fowlkes, 352 So.2d 208 (La.1977). In any event, this argument is meritless. Defendant contended throughout that it was a ease of mistaken identity. A proper foundation was laid.

Generally, photographs are admissible in evidence, when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they shed light upon the matter before the court. State v. Strickland, 398 So.2d 1062 (La.1981).

A proper foundation for admission in evidence of a photograph is laid when a witness having personal knowledge of the subject depicted by the photograph identifies it. This foundation was provided by the testimony of the investigators, Hutchinson and Olexy. It is well settled that the photograph need not be identified by the person who took it to be admissible in evidence. State v. Leggett, 363 So.2d 434 (La.1978).

Donald Singleton was with the defendant, Donald Robertson, when the defendant was apprehended by the police shortly after the instant rape. The state was unable to locate Singleton at the time of trial. Since both men had the first name of “Donald” and defense counsel focused the thrust of his defense on misidentification, it was relevant for the jury to have the benefit of a photographic likeness of Singleton for purposes of comparison.

Having ascertained that the photograph was accurately taken, fairly represented the subject in question and was relevant to the case, the trial judge did not abuse his discretion in admitting the photograph in evidence. State v. Strickland, supra.

This assignment of error lacks merit.

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

CONVICTION AND SENTENCE AFFIRMED.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. David JACKSON.
    No. KA 840013.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Ossie B. Brown, Dist. Atty., Susan Ponder, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

      Jack M. Dampf, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, David Jackson, was found guilty of manslaughter. A firearm was used in the commission of the crime. Defendant appeals his sentence.

Defendant was indicted for the second degree murder of Tyrone Scott on November 3, 1982, in violation of La.R.S. 14:30.1. After a preliminary examination, the trial court ruled there was probable cause only for a charge of manslaughter. Defendant waived trial by jury. On joint motion of the state and defendant, the matter was submitted to the court on the evidence adduced at the preliminary examination and bond reduction hearing. The trial judge then found defendant guilty of manslaughter in violation of La.R.S. 14:31. Defendant was sentenced to fifteen (15) years at hard labor under La.R.S. 14:31, and under La.C.Cr.P. art. 893.1 the sentence was imposed without benefit of probation, parole, or suspension of sentence. The trial judge also imposed an additional sentence of two years at hard labor without benefit or parole, probation, suspension of sentence or credit for good time, pursuant to La.R.S. 14:95.2. The two year sentence is to be served consecutively with the fifteen year sentence. Defendant appeals his sentence.

When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

ASSIGNMENT OF ERROR

Defendant filed one assignment of error urging that the trial court committed error in imposing an illegal sentence, in that the trial court erroneously applied both enhanced penalty statutes, La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2, to the same offense. On appeal, defendant urges five “issues” and briefs a sixth by supplemental brief. These are actually additional assignments of error. Normally, we would not consider these assignments. State v. Jarreau, 444 So.2d 340 (La.App. 1st Cir. 1983). However, since the issues briefed relate to the legality of the sentence, we will consider them as alleged error patent on the face of the record and review them as such. La.C.Cr.P. art. 920. Some of the issues are redundant. The different issues raised are as follows:

A. IS NOTICE REQUIRED BEFORE IMPOSITION OF SENTENCE UNDER BOTH LA.C.CR.P. ART. 893.1 AND LA.R.S. 14:95.2?

This issue has recently been decided adversely to the defendant in State v. Moore, 442 So.2d 726 (La.App. 1st Cir. 1983). Therefore, we find no merit to this argument.

B. CAN A SENTENCE OF MORE THAN FIVE YEARS WITHOUT BENEFIT OF PROBATION, PAROLE OR SUSPENSION OF SENTENCE BE IMPOSED UNDER LA.

C.CR.P. ART. 893.1?

We have recently decided this issue adversely to the defendant in State v. McKnight, 446 So.2d 915 (La.App. 1st Cir. 1984). There is no merit to this argument.

C. DID LA.C.CR.P. ART. 893.1 IMPLIEDLY REPEAL LA.R.S. 14:95.-2?

We have recently decided this issue. Cf. State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir.1984). We would additionally point out that La.C.Cr.P. art. 893.1 requires that if a firearm is used in commission of a felony the full sentence be imposed if the possible penalty is less than 5 years, and at least 5 years of the sentence be imposed if the possible sentence exceeds 5 years. It also requires that the sentence imposed not be suspended and that there be no benefits of parole or probation. This statute does not in any way change the possible length of sentence provided for the particular felony. It simply states a required minimum and a manner of serving the sentence already provided for in the felony. La.R.S. 14:95.2 on the other hand provides an additional penalty for particular crimes over and above the penalty provided for the crime itself if a firearm is used. The two statutes thus provide different results that are not in conflict. We find no merit in this argument nor in the assignment of error.

D. IS THE MINIMUM SENTENCE UNDER LA.C.CR.P. ART. 893.1 AND LA.R.S. 14:95.2 UNCONSTITUTIONALLY EXCESSIVE?

Defendant contends that the combination of La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2 imposes a mandatory minimum sentence that is unconstitutionally excessive. We disagree. The mandatory minimum sentence to which defendant is exposed is seven years—five years under La.C.Cr.P. art. 893.1 and two years under La.R.S. 14:95.2. Under the manslaughter statute alone, defendant is exposed to a possible sentence of twenty-one years. La.R.S. 14:31. There is no constitutional infirmity with the sentence being excessive nor with the fact that it is possible to impose a sentence in excess of that provided for the particular crime of manslaughter. State v. Roussell, 424 So.2d 226 (La.1982). These statutes provide additional minimum penalties where firearms are used in crimes. Such crimes are more serious than those where firearms are not used. See, for example, armed robbery—La.R.S. 14:64. These statutes have a rational basis reasonably related to a governmental interest to be advanced—to discourage the use of firearms in the commission of crimes.

E.CAN THE SENTENCE UNDER LA. R.S. 14:95.2 BE AT HARD LABOR?

Defendant contends in his supplemental brief that the two year additional sentence imposed under La.R.S. 14:95.2 is illegal because this sentence was imposed at hard labor even though the statute does not expressly provide that the sentence be imposed at hard labor.

Although La.R.S. 14:95.2 does not expressly provide that the sentence be imposed at hard labor, we think it was proper for the trial judge to impose the sentence in that manner. La.R.S. 14:95.2 provides for an additional penalty for certain enumerated crimes when a firearm or explosive device is used. A conviction for most of the enumerated crimes mandates imprisonment at hard labor. The exceptions are aggravated battery, La.R.S. 14:34, and simple kidnapping, La.R.S. 14:45, which provide for imprisonment with or without hard labor. La.R.S. 14:95.2 creates an additional penalty, not a separate crime. Roussell, 424 So.2d at 232. Since the purpose of La.R.S. 14:95.2 is to provide for an additional penalty when a firearm or explosive device is used in particular crimes that either mandate or allow for imprisonment at hard labor, it is appropriate for a trial judge to also impose this additional penalty at hard labor where the original penalty is imposed at hard labor.

We find no merit in defendant’s argument that his sentence is illegal.

For the reasons assigned, the sentence imposed by the trial court is affirmed.

AFFIRMED.

      . La.C.Cr.P. art. 893.1:

      . La.R.S. 14:95.2:
      Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.


text:
    STATE of Louisiana v. Jameelah RAHEEM and Tahir Malik Raheem.
    No. 84 KA 0094.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Granted Nov. 9, 1984.

      Ossie Brown, Dist. Atty. by Richard Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Gail Horne Ray, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendants, Jameelah Raheem and Tahir Raheem, were charged with Possession with the Intent to Distribute Pentazocine (Count I) and Possession with the Intent to Distribute Phenmetrazine (Count II) on September 8, 1982, in violation of La.R.S. 40:967(A). Each defendant pled not guilty. After a trial by jury, responsive verdicts of guilty of Possession of Pentazo-cine (Count I) and guilty of Possession of Phenmetrazine (Count II) were returned as to each defendant. The trial court sentenced each defendant to three years in the custody of the Department of Corrections on each count, the sentences to run concurrently.

FACTS

On September 8, 1982, Detective William Denicola of the Baton Rouge City Police was involved in a metro squad patrol with State Trooper Jay Thompson and Detective Bobby Calendar of the Baton Rouge Sheriffs office. While patrolling, Detective Denicola received a message that one of his contacts, a confidential informant, was trying to reach him. Denicola immediately called this informant who advised him that two black females and one black male were selling drugs “in the hole”, a well known heavy drug dealing area in Baton Rouge. The informant also stated that the suspects were riding in a late model beige Cadillac with Michigan plates and were selling sets of T’s and Blues, the street name for Tal-win (Pentazocine) and Pryribenzamine. He said that if the detective immediately went to Tyler Street the suspects could be found. Having received reliable information in the past from this particular confidential informant which was the basis for arrests and convictions in other drug cases, Detective Denicola decided to follow up on this tip.

He informed the other detectives, and they immediately proceeded to the area. Once there, the police saw the Cadillac and stopped it. The officers drew their weapons, ordered the occupants out of the vehicle, and had them place their hands on the trunk of the vehicle. When defendant, Jameelah Raheem, got out of the car, Detective Calender grabbed a purse that Ms. Raheem was holding close to her body. When he did this, she pulled back but then released the purse. She then went to the rear of the car where the other suspects were standing. Officers Thompson and Denicola conducted a frisk of all three suspects for weapons but none were found. Some bullets and a large wad of cash, approximately twenty-four hundred dollars, were found on Tahir Raheem. Detective Calender, who remained on the passenger side of the car, searched the purse and found a vanilla wafer box approximately twelve inches in height. He opened this box, lifted out the bag containing cookies, and found underneath a large quantity of pills which he recognized as sets of T’s and Blues and preludin tablets. Lab tests later confirmed the pills were sets of Talwin and Pryribenzamine and Preludin (Phenmetra-zine) tablets. He informed the other detectives and the three occupants were then formally arrested and advised of their Miranda rights. The detectives briefly opened the trunk but did not search it or the contents and suitcases inside. Defendants and the other occupant, Anna Smith, were then transported to the East Baton Rouge Narcotics Office. Detective Denico-la drove the Cadillac down to the office.

Once in the station, the officers spoke with defendants. When asked to sign a waiver to search form, Jameelah Raheem consented saying the detectives had caught her and were going to get a warrant anyway. The trunk and bags inside were searched; approximately six hundred sets of T’s and Blues, preludin tablets and a pistol were found. Ms. Raheem’s purse was searched again at the office, and the detectives found a weapon inside.

Defendants filed a motion to suppress physical evidence and statements. After a hearing, the trial court denied the motion, stating that there was probable cause, a valid search, no force or coercion used to obtain the statements and that defendants had been advised of their rights. After trial by jury, defendants were convicted and sentenced.

On appeal, defendants brief the following three assignments of error:

1. The trial court erred in denying defendants’ motion to suppress physical evidence.

2. The trial court erred in denying defendants’ motion for directed verdict of acquittal and motion for new trial based on the lack of sufficient evidence.

3. The trial court failed to comply with statutory sentencing guidelines and imposed unconstitutionally excessive sentences.

The remaining assignments of error were not briefed and therefore are considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir. 1983), writ denied, 437 So.2d 1141 (La.1983).

ASSIGNMENT OF ERROR NUMBER 1

In this assignment of error defendants contend the trial court erred when it denied the motion to suppress physical evidence. Defendants argue that the search of Jam-eelah Raheem’s purse went beyond the scope of the limited Terry search. In addition, they maintain that since there was no probable cause to justify an arrest, this was not a search incident to arrest. Finally, they argue that the drugs found in the trunk are fruits of an illegal search and should be suppressed.

SEARCH INCIDENT TO LAWFUL ARREST

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Singletary, 442 So.2d 707 (La.App. 1st Cir. 1983). A search incident to an arrest is a recognized exception to the rule that a war-rantless search is unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Buckley, 426 So.2d 103 (La.1983). The police must affirmatively show that probable cause existed for the arrests or the subsequent search does not fall within the exception. Buckley, 426 So.2d at 107.

When the officers in this case stopped the defendants’ vehicle, drew their weapons and ordered the defendants to place their hands on the rear of the vehicle, an arrest occurred. La.C.Cr.P. art. 201; State v. Commodore, 418 So.2d 1330 (La.1982). The validity of the search which took place after this arrest depends upon the validity of the arrest.

Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s knowledge, or of which he had reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. La.C.Cr.P. art. 213; State v. Edwards, 406 So.2d 1331 (La.1981). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Ruffin, 448 So.2d 1274 (La.1984); Commodore, 418 So.2d at 1332; State v. Marks, 337 So.2d 1177 (La.1976).

The information that a police officer obtains from a confidential informant may contribute to the articulable knowledge necessary to establish probable cause; however, the basis for the information and the informant’s reliability, when examined under the totality of the circumstances must be established. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Brooks, 452 So.2d 149 (La.1984) (rehearing granted, February 15, 1984).

The informant in this case 'was considered to be reliable by Detective Denieo-la, because he supplied trustworthy information which had led to many arrests and convictions over an approximate two-year period of time.

At the motion to suppress, Detective Denicola testified as to what the confidential informant told him as follows:

Q. When you spoke to the pgrson on the telephone what did that person convey to you that caused you to take action?
A. That subject told me that they were in the hole which is known to be Tyler Street which is a heavy, uh, known dope dealing location. We have arrested many a subject in that area for selling narcotics. Told me that they had three subjects in a Cadillac with Detroit plates on it, Michigan plates, that the Cadillac was beige and around a ’79 or ’80 the subject told me. Told me that if we got down there that we could catch them with a heavy quantity of narcotics. No further conversation, I was in a hurry to get back in the car and get down there. Told them to keep me posted, get back with me or I would get back with them concerning the bust if we made it.

The above information was corroborated by the officers’ subsequent observation obtained in the course of their investigation:

As we came on Minnesota Street we were northbound, the Cadillac came off of Tyler eastbound and turned northbound on Minnesota in front out [sic] car, in front the unit. They turned right immediately on the next street. We came up behind them and we put the lights and sirens on them and pulled up on the side of the car at which time they stopped. Detective Calender and Jay exited the vehicle right away and identified themselves as police officers and we got the three subjects out of the car.
Q. Now the car that ya’ll stopped was it a beige Cadillac?
A. It was and had Michigan plates, I think, it was WVD867.
Q. Was it a 1979 or 1980 Cadillac?
A. It was a 1980, beige Cadillac deVille.
Q. Did he give you any description as to who would be in the Cadillac?
A. Said two female — black females and one black male.
Q. The car that you stopped what was the sex and race of those people?
A. Two black females and one black male.
Q. Did you observe whether or not you — did you observe any other Michigan plates on any vehicles in the hole other than that one?
A. No, we did not.
Q. How far — as the car was coming up and turning in front of you could you see down Tyler Street?
A. You could see all the way down Tyler Street, it’s a dead end; it deads in [sic] at a canal and the canal runs right behind it. And I don’t recall any other cars on that street at that time.

From the foregoing facts, we conclude that the tip supplied by the informant who had proved to be a reliable source of information in the past, corroborated by the presence of the defendants in a vehicle which was described in detail and found in the exact location described by the informant, provided the necessary probable cause for a valid arrest. This entitled the officers to stop the vehicle and search the defendants without first obtaining a search warrant.

Thus, we find that the motion to suppress the physical evidence was properly denied by the trial court. In view of our finding that a legal arrest was made, we find the trial court was also correct in denying the motion to suppress the evidence obtained from a search of the defendants’ vehicle made after Ms. Raheem signed a consent to search form.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment of error, defendant, Tahir Raheem, contends there is insufficient evidence to support his conviction. He contends the trial court erred in denying a motion for a directed verdict of acquittal, a motion for new trial and in accepting a verdict contrary to the law and/or evidence.

The standard of review for sufficiency of the evidence is found in La.C. Cr.P. art. 821. That standard 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. State v. Mathews, 375 So.2d 1165 (La.1979); State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); cf State v. Captville, 448 So.2d 676 (La.1984).

In narcotics and drug offenses, possession may be established by a proof of the defendant’s actual or constructive possession. In order for a person to constructively possess a drug, he must either own it or have “dominion or control” over it. State v. Tasker, 448 So.2d 1311 (La.App. 1st Cir.1984).

After reviewing the record we com elude that a rational trier of fact could infer that the drugs were subject to Tahir Raheem’s dominion and control. Jameelah Raheem was in possession of a sizeable quantity of drugs in her purse. There was also a large quantity of drugs found in the trunk. Although the jury returned a responsive verdict of possession, given the amount of drugs it certainly could have found the intent to distribute. Defendant, Tahir Raheem, was not a casual acquaintance. He was related to the co-defendant and had traveled with her from Detroit. Nor was he merely present where the drugs were found; he was riding in the car in a known drug dealing area. Furthermore, when frisked, he was found to have a few thousand dollars of cash in his possession.

Thus, we find there was sufficient evidence to conclude that defendant, Tahir Raheem, constructively possessed the illegal drugs.

ASSIGNMENT OF ERROR NUMBER 3

In this assignment of error, defendants contend the sentencing judge failed to comply with the requirements of La.C.Cr.P. art. 894.1 and imposed an excessive sentence.

Defendants argue that the trial judge failed to consider the factors in article 894.1 and improperly reasoned that probation was impractical due to defendants being out-of-state residents.

The trial court is not required to enumerate each factor under article 894.1. State v. House, 444 So.2d 265 (La.App. 1st Cir. 1983). After reviewing the record we find that the trial court noted several mitigating factors. There was compliance with La.C. Cr.P. art. 894.1.

Defendants also contend that the trial court relied on an amendment to the criminal statute which increased the length of sentence which may be imposed. Here the trial court did not impose a longer sentence because of the subsequent legislative amendment to the statute; the judge merely noted the legislative enactment. In any event, legislative action which increases or decreases the penalty for an offense after it was committed may be considered by a court as representing a legislative determination relative to the seriousness of the offense. State v. Schaeffer, 414 So.2d 730 (La.1982) (concurring opinion); State v. Phillips, 412 So.2d 1036 (La.1982); State v. Wright, 384 So.2d 399 (La.1980). The sentence imposed was within that authorized for the crime at the time of its commission.

We do not find an abuse of the trial court’s much discretion in sentencing. State v. House, 444 So.2d at 266.

DECREE

For the foregoing reasons, we affirm the convictions and sentences of the defendants.

AFFIRMED.

      . At the time of the offense charged, La.R.S. 40:967 provided:

        A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;
      (2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.
      B. Penalties for violation of Subsection A. Except as provided in Subsections E and F hereof, any person who violates Subsection A with respect to:
      (1) A substance classified in Schedule II which is a narcotic drug, shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than fifteen thousand dollars;
      (2) Any other controlled dangerous substance classified in Schedule II shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and, in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.
      C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Except as provided in Subsections E and F hereof, any person who violates this Subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.
      F. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars.
      (2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of c'ocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars.
      (3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses four hundred grams or more of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years, and to pay a fine of not less than two hundred fifty thousand dollars.
      G. (1) Except as provided in Paragraph (2) hereof, with respect to any person to whom the provisions of Subsections E and/or F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsections E and/or F.
      (2) The district attorney may move the sentencing court to reduce or suspend the sentence of any person to whom the provisions of Subsections E and/or F are applicable who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes. The arresting agency shall be given an opportunity to be heard in reference to any such motion. The court may reduce or suspend the sentence if it finds that the defendant rendered such substantial assistance.
      The statute was amended by Act 602 of 1982, effective September 10, 1982, two days after this offense was committed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).