author:
KNOLL, Judge. YELVERTON, Judge.
      KNOLL, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Davis J. VICTORIAN, Defendant-Appellant.
    No. CR 83-644.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Granted March 7, 1984.
    On Rehearing April 11, 1984.
    Rehearing Denied May 10, 1984.
    Frank T.- Salter, Jr., Salter, Streete & Hale, Lake Charles, for defendant-appellant.

      Leonard K. Knapp, Jr., Dist. Atty., and F. Wayne Frey, Lake Charles, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Davis J. Victorian, was charged by bill of information with illegal use of a weapon, a violation of LSA-R.S. 14:94. The defendant pleaded guilty and was sentenced under LSA-C.Cr.P. Art. 893.1 to serve 2 years in the parish jail without the benefit of probation, suspension or parole. The defendant reserved nine assignments of error attacking his sentence mainly on constitutional issues. Because we find the sentence to be improper on other grounds and remand the ease for resentencing, we pretermit all of defendant’s assignments of error.

FACTS

On February 17, 1982, in Lake Charles, Louisiana, a truck driven by Earl LaV-ergne pulled out in front of the defendant’s vehicle which was traveling east on Highway 90. The defendant pulled over in the left lane and applied his brakes to avoid hitting the LaVergne vehicle. Both parties exchanged obscene gestures and drove in close proximity of each other as they proceeded up the I — 10 bridge. As the LaV-ergne vehicle attempted to pass, the defendant picked up a .22 pistol and fired out of his window five times, striking the LaV-ergne vehicle in the right front fender each time.

The defendant was initially charged with violating LSA-R.S. 14:94 by “intentionally or with criminal negligence discharge a firearm, to-wit: .22 caliber pistol, wherein it was foreseeable that it may result in death or great bodily harm to a human being_” Although this bill was amended to the charge of aggravated criminal damage to property, it was again amended back to the charge of illegal use of a weapon, to which the defendant entered a guilty plea.

R.S. 14:94 provides in pertinent part: “A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
B. Whoever commits the crime of illegal use of weapons or dangerous in-strumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.

Upon accepting the defendant’s plea, the trial court informed the defendant that the maximum penalty for illegal use of a weapon was a $1000 fine or two years with or without hard labor, or both. At sentencing, the court told the defendant it felt compelled to invoke Art. 893.1 since the defendant used a firearm and gave the defendant the opportunity to withdraw his guilty plea. The defendant maintained his guilty plea, but objected to the court applying Art. 893.1.

C.Cr.P. Art. 893.1 provides:

“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.

The trial court did not impose any sentence under R.S. 14:94.

ENHANCED PENALTIES

Article 893.1 authorizes the imposition of an enhanced penalty on a defendant who uses a firearm in the commission of a felony. The question for determination in this case is whether Article 893.1 may be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes punishment if a weapon is used. For reasons set forth below, we hold that the defendant’s sentence shall be imposed as provided in the statute defining the felony he committed and that Article 893.1 does not apply in such a case.

Criminal and penal laws are to be strictly construed and in the absence of an express legislative intent, any doubt should be resolved in favor of lenity, and not so as to multiply the penalty imposed upon the defendant. State v. Cox, 344 So.2d 1024 (La.1977).

The question raised by the defendant is res nova under Article 893.1. However, from analogous issues involving enhanced penalties, our determination is consistent with the jurisprudence.

State v. Sanders, 337 So.2d 1131 (La.1976) addressed the issue of whether the State may multiple-bill a person under the habitual offender statute, who was convicted under R.S. 14:95.1 of being a convicted felon who carries a concealed weapon, by using in the multiple-bill the same felony conviction alleged as elements of the offense. The Louisiana Supreme Court held that the State could not use the defendant’s prior conviction twice: first to convict him, and, second to increase the penalty through a multiple bill. The Court stated:

“Consequently, we find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty. ” (Emphasis added)

The Supreme Court treated a similar issue in State v. Cox, supra, in determining whether the State may employ a conviction of simple escape in seeking to have a person declared an habitual offender. In Cox, the Court relied on Sanders, supra, and stated:

“... The escape statute itself causes an enhancement of penalty by requiring consecutive sentences because of a defendant’s previous felony conviction. Although the legislature chose to make the enhancement to a felony dependent upon a defendant’s escape from the Department of Corrections instead of relating the enhancement directly to his previous commission of a felony, we see no real difference because only convicted felons may be sentenced to the Department of Corrections. ”

Thus, it is apparent that enhanced penalties cannot be applied to offenses that contain the same elements as in the enhanced penalty. This is consistent with federal jurisprudence on this issue. See Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

The present case presents a good example of when article 893.1 is not applicable. The defendant entered a guilty plea to a specific (requiring a weapon) statute: illegal use of a weapon. The penalty for this offense is provided in the statute itself. The enhanced penalty is likewise provided upon the second, third and subsequent conviction:

“C. On a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.
D. On a third and subsequent convictions, the offender shall be imprisoned with or without hard labor for not more than five years.
E. The enhanced penalty upon second, third, and subsequent convictions provided for in this Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction or convictions, and the time of the commission of the last offense for which he has been convicted; the sentence to be imposed in such event shall be the same as may be imposed upon a first conviction.

Article 893.1 is an enhanced penalty to be applied to general statutes that do not require the element of a weapon or firearm, e.g., manslaughter, negligent homicide, murder, and etc. But in specific statutes e.g., illegal use of a weapon, any “aggravated” offenses when a firearm is used, armed robbery, and etc., Article 893.1 is not to be applied because absent an express legislative intent, it is assumed that the legislature, in fixing penalties for specific offenses committed with a firearm, intended the penalty to take this into account.

The elements of the offense of illegal use of a weapon are the same as required in the enhanced penalty provision of 893.1. Accordingly, we find the defendant’s sentence in the present case falls within the prohibited use of an enhanced penalty under Article 893.1, first to convict him and, second to enhance his penalty. We therefore remand the case to the district court for re-sentencing under the provision of R.S. 14:94 and Article 894.1.

We further find that the enhanced penalty provided under Article 893.1 does not create a new or separate offense based on the use of a firearm but merely provides for the imposition of an increased sentence for persons using a firearm in the commission of a felony. We find that the trial court erred in sentencing the defendant directly under Article 893.1. This has the effect of making Article 893.1 a crime of “using a firearm in the commission of a felony” rather than serving as an enhanced penalty.

DECREE

The defendant’s conviction is affirmed. The defendant’s sentence is vacated and set aside, and the case is remanded to the district court for re-sentencing consistent with the views expressed above.

REMANDED FOR RE-SENTENCING.

YELVERTON, J., dissents.

ON REHEARING

YELVERTON, Judge.

The issue is whether C.Cr.P. art. 893.1, the “use of a firearm” enhancement law, was intended to apply to the penalty for the violation of R.S. 14:94, illegal use of weapons or dangerous instrumentalities, when the violation consists of illegal use of a firearm.

The facts of the case are correctly stated in the original opinion. Briefly repeated, defendant, using a .22 pistol, shot five times into the body of a passing vehicle. He pleaded guilty to a violation of R.S. 14:94, a felony. The maximum sentence for first offense illegal use of weapons or dangerous instrumentalities is two years. Finding that a firearm was used in the commission of the felony, the trial court applied the enhancement provisions of C.Cr.P. art. 893.1 and gave the defendant two years in the parish jail without benefit of parole, probation or suspension. Defendant appealed contending that this application of article 893.1 was contrary to Legislative intent, and that the sentence was an unconstitutional double enhancement of penalty.

The original opinion erroneously decided that this amounted to a prohibited double enhancement of the penalty and that article 893.1 was improperly used in the sentencing. A rehearing was granted on application of the State. We vacate and set aside the first opinion and now hold that the enhancement article is applicable to Section 94 even when that offense is committed by use of a firearm. We affirm the sentence.

We reach this conclusion because we find, for the reasons which follow, that (1) this conclusion comports with Legislative intent, and (2) there results no double enhancement of penalty.

Legislative Intent

Article 893.1 is a limitation on the sentencing discretion of the judge. State v. Adams, 446 So.2d 355 (La.App. 3rd Cir. 1984). As to those felonies to which it applies, the sentencing judge has no discretion except to give the maximum sentence, in the same manner as provided in the offense, if the maximum is less than five years. If the maximum sentence as provided in the offense is five years or more, the judge’s discretion is limited by the requirement that he impose at least five years. The article further provides that imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

The conditions for application of article 893.1are:

“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 purpose of the article is to enhance penalties for gun-using felonies. The enhancement includes a prohibition against suspension of sentence. The Legislature obviously does not want gun-using felons to get suspended sentences. However, the Legislature is content to let the gun-using felon escape the enhancement of article 893.1if suspension of his sentence is already prohibited by some other law. That appears to be why it made the article applicable to gun-using felonies only when suspension of sentence is not otherwise prohibited.

The significance of the italicized language in the application of the article is indicated by the number of times in our law when suspension of sentence will be found to be “otherwise prohibited.” By means of R.S. 14:95.2, for example, the Legislature has provided an enhancement penalty of two additional years without benefit of suspension when a firearm is used in the commission of certain felonies. When article 893.1was made the law in 1981, the Legislature was aware that it had already provided an enhanced penalty for the use of a firearm in certain enumerated felonies by means of R.S. 14:95.2, and that the additional penalties therein imposed could not be suspended. The Legislature was also aware that a number of other potentially firearm-using violent felonies are on the books but the penalty for some of these already prohibits the suspension of sentence, armed robbery being just one example. Also, in felony cases suspension of sentence is permitted for first convictions only under C.Cr.P. art. 893, and suspension of sentence is thereby automatically unavailable for any second offense felon. It is reasonable to suppose that these are the reasons why the Legislature made article 893.1applicable only to felonies where the suspension of sentence was not otherwise prohibited. Article 893.1 does not apply to these offenses where suspension is already prohibited but as to all other felonies where a finding is made that a firearm was used in the commission of the offense, the article applies.

Care was taken by the lawmakers to assure that no gun-using felony would remain subject to a suspended sentence. . Article 893.1 is aimed at achieving that result. The Legislature saw no need to amend each individual felony statute, as it might have done, to provide an enhanced penalty. It chose to accomplish that purpose by a single enactment in the form of article 893.-1.

Suspension of sentence for a violation of R.S. 14:94 is not “otherwise prohibited.” Therefore, it is a felony to which article 893.1applies when a finding is made that a firearm was used in the commission of the offense. The fact that a firearm use may be an element of the offense does not distinguish that felony, for punishment purposes, from any other to which article 893.1 applies. A firearm can be used in the commission of any felony. When it is, ae-cording to the Legislature, the punishment for that crime may not be suspended.

If article 893.1 was not intended to apply to illegal use of weapons or dangerous instrumentalities, that offense has the distinction of being the only felony on the books that can get a suspended sentence when a finding is made that a firearm is used. This is a strange result considering the Legislature’s manifest attitude regarding the use of firearms in the commission of felonies. We cannot believe that the legislature intended to exempt but one felony from the application of this enhancement statute, that exemption being, of all things, illegal use of weapons or dangerous instrumentalities.

In our opinion it was the intent of the Legislature that article 893.1 apply to illegal use of weapons or dangerous instru-mentalities just as any other felony where suspension of sentence has not been otherwise prohibited and a finding is made that a firearm was used in the commission of the offense.

Double Enhancement?

We next consider the argument that the application of article 893.1 to this offense results in a double enhancement of penalty.

In our opinion the statutes under consideration do not present a case of double enhancement. Arguing that it does, the defendant relies on State v. Sanders, 337 So.2d 1131 (La.1976), and State v. Cox, 344 So.2d 1024 (La.1977). Unlike those cases, the instant case does not involve one enhancement on top of another enhancement. The penalty imposed for using a firearm under article 893.1 is not “escalated twice” as happened in State v. Cox, where a simple escape was escalated to a felony (because defendant was a felon when he escaped) requiring a consecutive sentence and this in turn was used as a basis for charging the defendant as a multiple offender. Nor is this a case where a defendant’s prior conviction is being used twice, first to convict him of a status crime and again to increase the penalty through a multiple bill, as in State v. Sanders.

The same difference exists in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) likewise relied on by defendant. In those cases multiple, consecutive sentences were given in response to two enhancement provisions applicable to a single criminal transaction. Our case differs additionally from the federal cases in that our predicate statute, R.S. 14:94, makes no allowance in the substantive offense for augmented punishment where a firearm is used; this is separately provided by article 893.1, and even that does not provide for an increased or consecutive sentence. All that article 893.1 does is limit the sentencing discretion of the judge as to what he can impose within the framework of the sentence provided by R.S. 14:94. There is but one sentence.

Although article 893.1 is an enhanced penalty provision, it differs from the usual enhancement statute, such as those involved in the above four cases, in that it does not provide an additional penalty beyond that provided for in the underlying offense. R.S. 14:95.2, mentioned earlier in this opinion, is another example of the usual enhancement statute. It mandates an additional and consecutive sentence without benefit of suspension for using a firearm in the commission of certain felonies. Article 893.1 does not provide an additional sentence. In fact, the article provides no sentence at all. It is a limitation on the sentencing discretion of the court and it can be applied only with reference to the sentencing provisions of the underlying offense. It would be impossible to apply article 893.1 without referring to the sentencing provisions of some underlying offense, because its limitations on the court’s sentencing discretion must be computed by reference to the sentencing provisions of the underlying offense. The trial court in the instant case followed the article. During sentencing he stated that defendant’s guilty plea was under R.S. 14:94 which provided a maximum sentence of two years, that C.Cr.P. art. 893.1 was applicable because defendant used a firearm in the commission of the underlying offense, and that accordingly, the court was mandated “to impose no less or no more than two years.” The trial judge imposed only one punishment for one crime.

The above observations answer the contention that the application of article 893.1 to R.S. 14:94 constitutes a prohibited double enhancement of penalty. There remains for consideration the argument by appellant that there is something constitutionally wrong with applying article 893.1 to R.S. 14:94 because a firearm was used, when the penalty for the violation of the underlying statute has already taken into consideration the fact that a firearm may have been used.

In the context of the present problem we are concerned only with the enhancement for a first offense violation. We are not concerned with the enhancement provisions for repeat violations contained in R.S. 14:94. There is no way a defendant convicted as a second offender under R.S. 14:94 would be subject to the provisions of article 893.1, simply because, as a second felony offender, he is not eligible for a suspended sentence (C.Cr.P. article 893) and this eliminates article 893.1 from application.

Our question is simply whether the penalty for a first offense is subject to the sentencing limitations of article 893.1, or not. We can conceive of no constitutional impediment to applying the enhancement limitations of this article. We are not acquainted with a rule of law that says enhanced penalties cannot be applied to offenses that contain the same elements as in the enhanced penalty. No one would quarrel with the Legislature’s power to put an enhancement provision in the statute defining the penalty, just as was done in the federal bank robbery statute under consideration in Simpson v. United States, supra. Nor would anyone quarrel with the power of the Legislature to directly amend the sentencing provision. The Legislative prerogative to accomplish its purpose by a separate statute, provided its intention is clear, should be equally unassailable. We have previously pointed out that in our opinion it was the Legislature’s intent to make article 893.1 applicable to every felony where suspension of sentence was not otherwise prohibited. The fact that R.S. 14:94 can be committed by use of a firearm, and was so committed in the present case, has nothing to do with the case.

Defendant makes the additional argument that double jeopardy applies. We dispose of this contention summarily pointing out, as previously observed, that in the instant case there was but one crime, one conviction, and one sentence.

Defendant’s final assignment of error is the due process contention that he was not given notice of the court’s intent to impose the enhanced penalty. The record indicates that the provisions of article 893.1 did not come to the sentencing judge’s attention until after the guilty plea had been entered. The judge became aware of these provisions before sentencing, however, and explained to the defendant its discovery of the enhancement article and its intention to apply the article at sentencing. After explaining its intention to the defendant, the trial court then gave defendant an opportunity to withdraw his guilty plea. The record shows that at this point defendant declined to withdraw his guilty plea. The First Circuit in the case of State v. Moore, 442 So.2d 726 (La.App. 1st Cir.1983) was faced with an identical assignment of error and found the argument to have no merit. We find the present due process contention likewise meritless.

For the foregoing reasons, we find that there was no error committed by the trial court in these proceedings. Both the conviction and sentence, therefore, are affirmed.

AFFIRMED.

KNOLL, J., dissents; see reasons.

KNOLL, Judge,

dissenting.

I respectfully dissent for reasons expressed in the original opinion.

      . The defendant perfected ten assignments and briefed nine, therefore the tenth assignment is considered abandoned. State v. Domingue, 298 So.2d 723 (La. 1974).


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Herman J. TASKER. STATE of Louisiana v. Marshall D. TASKER.
    Nos. 83 KA 0950, 83 KA 0951.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      Pamela T. Taylor of Johnson, Ritzie, Taylor & Thomas, Baton Rouge, for defendant.
    Houston C. Gascon, III, Dist. Atty., Plaquemine, for the State of La.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Marshall Tasker and Herman Tasker were each found guilty of possession of marijuana with intent to distribute, a violation of La.R.S. 40:967 at that time, and possession of cocaine, a violation of the same statute. They were sentenced to the custody of the Department of Corrections for a period of five and seven years, respectively, on the first charge, and five years each on the second charge, the sentences to be served concurrently. The defendants appealed, asserting eight assignments of error.

We affirm.

ASSIGNMENT OF ERROR NO. 1

The defendants allege that the bills of information were fatally defective because there was no citation of the statutes the defendants were charged with violating.

La.C.Cr.P. Art. 464 requires the inclusion in an indictment or information of the official citation of the statute a defendant is alleged to have violated. However, the article further provides that “... error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction, if the error or omission did not mislead the defendant to his prejudice.”

The defendants made no showing of having been misled to their prejudice. This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Initially, we note that there seems to be some confusion on the part of the State as to the subject of this assignment of error. Defense counsel did make an objection at trial to the admission of some of the seized evidence and was overruled. However, on appeal the defendants do not assert that ruling of the trial court as error; they argue instead that certain testimony pertaining to the evidence, which was not objected to at trial, was erroneously admitted into evidence.

The defendants assign as error the admission of certain testimony by Jane LeCour, a forensic chemist who testified for the State. As no contemporaneous objection to the witness’s testimony was made by defense counsel, we cannot consider these assignments of error on appeal. La.C.Cr.P. Art. 841; State v. Marks, 337 So.2d 1177 (La.1976); State v. Finley, 341 So.2d 381 (La.1976).

We find no error.

ASSIGNMENT OF ERROR NO. 3

The defendants argue that their court-appointed attorney was so unprepared for trial and performed so ineffectively that their constitutional right to effective assistance of counsel was violated. Art. 1, § 13, La. Const.1974; U.S. Const. 6th Amendment.

In her brief, the defendants’ counsel correctly notes that normally the issue of ineffective assistance of counsel is more properly raised by an application for post-conviction relief to district court so that a full evidentiary hearing may be conducted. State v. Seiss, 428 So.2d 444 (La.1983); State v. Brown, 384 So.2d 983 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979). However, defense counsel argues that this issue should be considered on appeal because the record discloses sufficient evidence to decide the issue. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Seiss, supra.

We do not agree that the record discloses sufficient evidence to support such a contention.

ASSIGNMENTS OF ERROR NOS. 5, 6 AND 7

Although defendants’ counsel failed to file a motion for a new trial or a motion in arrest of judgment after the verdict was rendered, we shall consider the issue of sufficiency of the evidence. State v. Washington, 421 So.2d 887 (La.1982); State v. Coleman, 432 So.2d 323 (La.App. 1st Cir. 1983).

The defendants argue that the State failed to meet its burden of proof as to all the essential elements of the crimes charged, and that the convictions were based on insufficient evidence. Although both defendants raised this issue in the assignments of error, in both brief and oral argument, defendants’ counsel limited the argument to Marshall Tasker. However, we will determine the issue as to both defendants.

In narcotics and drug offenses, possession may be established by a proof of the defendant’s actual or constructive possession, State v. Baker, 338 So.2d 1372 (La.1976); State v. Marks, supra. In order for a person to constructively possess a drug, he must either own it or have “dominion or control” over it. State v. Marks, supra; State v. Mims, 330 So.2d 905 (La.1976). The State must show that the defendant had guilty knowledge of the illegality of the drug. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Smith, 245 So.2d 327 (La.1971). The factfinder may draw reasonable inferences to support these conclusions based upon the evidence presented at trial. State v. Edwards, 354 So.2d 1322 (La.1978); La.R.S. 15:446.

The mere presence in the area where narcotics are discovered or mere association with the person who does control the drug or the area where it is located, is insufficient to support a finding of possession. State v. Alford, 323 So.2d 788 (La.1975); State v. Roach, 322 So.2d 222 (La.1975); State v. Cann, 319 So.2d 396 (La.1975).

In Bujol v. Cain, 713 F.2d 112 (C.A. 5, 1983), the 5th Circuit listed several factors which can be considered in determining whether a defendant exercised the requisite “dominion and control”. Factors to consider include: a defendant’s knowledge that illegal drugs are in the area; the defendant’s relationship with the person found to be in actual possession; the defendant’s access to the area where the drugs were found; the evidence of recent drug use by the defendant; the defendant’s physical proximity to the drugs; and any evidence that the particular area was frequented by drug users.

Herman Tasker was in actual possession of the marijuana; he was apprehended as he sought to escape while carrying a large garbage bag filled with the substance. Marshall, Herman’s brother, admitted to smoking marijuana in the recent past, and also admitted he slept in his brother’s trailer on occasion. While both brothers denied that Marshall Tasker lived with his brother, the State presented the testimony of Detective Grace, a resident of the same area where the Taskers lived, that to the best of his knowledge Marshall Tasker did in fact live with his brother, Herman. The defendants presented Bernard Anthony Brown, who characterized himself as extremely close to the defendants, who testified that Marshall lived with his mother and not Herman. However, the defendants’ mother failed to testify on behalf of her son. Detective Grace also testified that during the search of the trailer, law enforcement officials discovered Marshall Tasker’s wallet lying on a night stand next to a bed in the smaller of two bedrooms, and also found several school books (Marshall was a college student at the time) in the same bedroom. Herman Tasker admitted that Marshall slept at his trailer sometimes and had clothes there at the trailer. Marshall testified that he felt free enough with his brother’s residence to bypass a locked door and enter the trailer when his brother was not there; that he felt responsible for the trailer and his brother’s property when his brother was not there. Based upon all of ' these facts, a rational trier of fact could infer that the marijuana was subject to Marshall Tasker’s dominion and control.

The above facts, the admission of both defendants that they smoked marijuana, and the fact that upon the officers’ approach, Herman Tasker fled the scene and Marshall Tasker attempted to block the officers’ entrance into the trailer, a rational trier of fact could infer the requisite guilty knowledge by both parties.

The intent to distribute may also be inferred from the surrounding circumstances. The trier of fact may look to how the substance was packaged, the quantity of the substance seized and the presence of scales or other paraphernalia for drug use or packaging. State v. Trahan, 425 So.2d 1122 (La.1983). A sizeable quantity of marijuana was seized, large enough to be carried in a large garbage bag. Herman Tasker admitted to having purchased two pounds of the substance. Inside the garbage bag were two large clear plastic bags filled with the substance and fourteen smaller plastic bags also filled. Other items seized included a scale, an envelope filled with marijuana and covered on the outside with notations of people’s names and next to them, figures of money; and a total of over $5,000.00 in cash.

A rational trier of fact could find beyond a reasonable doubt that both defendants had the requisite intent to distribute the marijuana.

Police found, in a chest drawer in the larger bedroom of the trailer, a small glass vial with cocaine residue and a small mirror, both enclosed in a small tote or tennis bag. Herman Tasker admitted using cocaine on prior occasions, but denied ever seeing the vial. A rational trier of fact could conclude that the evidence was sufficient to prove beyond a reasonable doubt that both defendants constructively possessed the cocaine.

ASSIGNMENT OF ERROR NO. 8

The defendants contend that the sentencing judge failed to comply with the requirements of C.Cr.P. art. 894.1, and that the sentences imposed were excessive. Although neither of the defendants objected at the time of sentencing that the trial court had not complied with 894.1, or that the sentences imposed were excessive, it has been held that this failing will not bar later review of either complaint. State v. Cupit, 408 So.2d 1108 (La.1981); State v. Smith, 389 So.2d 1262 (La.1980).

We have perused the record and find that the trial judge has carefully enumerated the relevant factors of C.Cr.P. art. 894.-1. We find no error.

Defendants also complain of the exces-siveness of the sentences.

The trial judge has wide discretion within statutory limits in sentencing. State v. Sepulvado, 367 So.2d 762 (La. 1979). However, a sentence is excessive if it is grossly disproportionate to the crime or constitutes the needless imposition of pain and suffering. State v. Gulden, 399 So.2d 194 (La.1981).

The sentences on the charge of possession of marijuana with intent to distribute are well within the statutory limit. The court found there was undue risk that the defendants would commit another crime, that the defendants needed a custodial environment, that lesser sentences would deprecate the seriousness of the crimes, that both defendants had used marijuana and that at least one had stated he found nothing wrong in its use.

The court made the same statements on the charge of possession of cocaine.

The sentences are to be served concurrently.

Under these circumstances, we do not find the sentences to be excessive.

For these reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . In response to the State’s question, "Do you feel that you are in control of the trailer when your brother is not there?”, Marshall responded, "Yes.”


author: CARTER, Judge:

text:
    STATE of Louisiana v. George E. OHRBERG.
    No. 83 KA 0977.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.

      William J. Knight, Asst. Dist. Atty., Franklinton, for State.
    Clayton S. Knight, Franklinton, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This criminal appeal arises from the conviction of George E. Ohrberg of indecent behavior with a juvenile, LSA-R.S. 14:81. After waiving trial by jury, the defendant was tried by a judge alone. After having been found guilty as charged, defendant was sentenced to serve five (5) years at hard labor and to pay a fine of $2,000.00 and, in default of payment of fine, to serve six months in jail. Defendant’s sentence of confinement at hard labor was suspended, and defendant was placed on supervised probation for a period of five years with the following special conditions: (1) to pay the fine within six months of the date of sentencing; (2) to perform thirty (30) days of community service work under the designated probation officer, to be approved by the court; and, (3) to attend a mental health clinic for evaluation and treatment. Defendant appeals his conviction alleging eight assignments of error.

FACTS

The victim, a nine-year old female child, testified at trial that on several occasions from December 1981 through June 1982, at times when defendant’s wife was not at home, defendant made the victim take off her clothes, fondled her private parts, and otherwise sexually molested her. This nine-year old child was a neighbor of defendant and his wife in a trailer park, and the child had free access in and out of defendant’s home. She would visit with the defendant and his wife often after school and sometimes on weekends. During the month of June 1982, in response to questioning, the victim told her aunt of these practices, and defendant’s arrest followed.

ASSIGNMENTS OF ERROR

Defendant-appellant, George Ohrberg, relates the following assignments of error:

1. The trial judge committed error when he overruled defendant’s objection to the state proceeding to trial without having furnished specific answers to defendant’s motion for bill of particulars.
2. The trial court erred in allowing the child-victim who is under twelve years of age to testify, not only due to the age of the child, but also because of intelligence and the inability of the child to distinguish between right and wrong.
3. The trial judge erred in overruling defendant’s objections to testimony of “Aunt Dot” as the same was hearsay.
4. The trial judge erred in allowing Officer McNish to testify pertaining to the age of defendant as the state had not revealed the same in pre-trial discovery.
5. The trial judge erred in allowing Officer McNish to testify as to the age of defendant with information being taken from a computer print-out.
6. The trial judge erred in denying defendant’s motion for acquittal.
7. The trial judge erred in denying defendant’s motion for new trial.
8. The trial judge erred in finding the essential elements of the crime as charged had been proven by the state.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred when it overruled defendant’s objection to the state proceeding to trial without supplying specific answers to defendant’s motion for bill of particulars. Defendant argues that he was denied his constitutional right, under LSA-Const. Art. 1, § 13, to prepare a defense because the state was not required to expand the general charges set forth in the bill of indictment by disclosing specific dates, times and places of specific acts of indecent behavior with a juvenile.

The record discloses that defendant’s original request for discovery by filing a bill of particulars was not answered by the state. Defendant then requested a hearing to require the state to answer his interrogatories. The trial judge issued an order requiring the state to answer, and, in response thereto, the state made available to defendant and his counsel its entire file on defendant. On the date of trial, defendant again reiterated its request for specific answers to its interrogatories on its motion for bill of particulars, arguing that defendant could not adequately prepare his defense. The trial judge overruled defendant’s objection and proceeded to trial.

The scope of the bill of particulars rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion and prejudice to defendant. State v. Womack, 283 So.2d 708 (La.1973).

The purpose of a bill of particulars is to inform defendant about the nature and cause of the charge against him; it is not a method for defendant to obtain the state’s evidence. State v. Huizar, 414 So.2d 741 (La.1982). The state is not required to open its files to the accused. State v. Loyd, 425 So.2d 710 (La.1982). Nor is the state required to advise defendant of the specific dates on which lascivious conduct allegedly occurred. State v. Case, 357 So.2d 498 (La.1978).

The state argues in brief that it fulfilled its obligation under LSA-C.Cr.P. art. 484 when it turned over to defendant’s counsel the state’s entire file on defendant.

We agree. Although the state did not inform defendant of the exact time and manner of the alleged criminal acts, the state’s amended answer to defendant’s motion for bill of particulars (which allowed defense counsel to inspect, review, and photocopy the state’s entire case file) was specific enough to enable defendant to identify the alleged criminal transactions and to prepare a defense. Cf. State v. Atkins, 360 So.2d 1341 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402, rehearing denied, 442 U.S. 935, 99 S.Ct. 2871, 61 L.Ed.2d 305 (La.1979).

Under these circumstances, no prejudice resulted since all facts, information, and documents gathered by the state in preparation for trial were available to defense counsel. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant complains that the trial court erred in allowing the victim, a child of less than 12 years of age, to testify, arguing that the child was too young to be a competent witness and lacked sufficient intelligence to be able to distinguish between right and wrong. At the time of trial, the victim was 10 years of age.

LSA-R.S. 15:469 provides as follows:

“§ 469. Understanding as test of competency; child under twelve years
Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

The trial judge has wide discretion in determining the competency of witnesses under 12 years of age. State v. Arnaud, 412 So.2d 1013 (La.1982). The determination of a trial judge as to whether or not a child has the required sufficient understanding is entitled to great weight because he (or she) has the advantage of seeing and hearing the witness. State v. Dees, 439 So.2d 614 (La.App. 1st Cir.1983).

The state called the victim to testify at the trial, and the trial judge conducted a competency hearing pursuant to LSA-R.S. 15:469. The child was sworn and examined by the state, defendant and the court. She correctly stated her age, her address, and her grade at school. She testified that she knew what it meant to tell the truth, what it meant to tell a lie and that she could take an oath to tell only the truth and stick to that oath. She further testified that she sometimes went to Sunday School, that her Sunday School teacher told her it was wrong to tell a lie. Based on this testimony, the trial judge ruled that the child-victim was competent to testify.

During the child-witness’s testimony, she often stated “I forgot,” whereupon the trial judge again interrogated the 10-year old, as did the defense attorney, to further determine the victim’s competence as a witness.

The ruling of the trial judge, determining that the 10-year old victim-witness was competent to testify, is correct. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court committed reversible error when it admitted into evidence the testimony of the victim’s aunt as to prior out-of-court statements made by the victim to her aunt, arguing that such statements are hearsay and are not admissible into evidence.

Hearsay evidence is evidence of an unsworn out-of-court statement made by a person other than the testifying witness, which evidence is introduced for the truth of its contents; the evidence is non-hearsay when it is offered to prove that an utterance occurred and not to prove the truth of the facts recited. State v. Sheppard, 350 So.2d 615 (La.1977). In prosecution of sex offenders, the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication. State v. Adams, 394 So.2d 1204 (La.1981).

Testimony in the record before us indicates that the statement in question was made to the victim’s aunt in response to questions by the aunt, was made at the earliest opportunity the child-victim had to talk about the lewd and lascivious acts to a close family member, and was made to name the perpetrator of such acts. There is no indication in the record that the child’s statement to the aunt was a product of fabrication but, rather, the circumstances reflect that the victim’s answer to the aunt’s concerned inquiry was merely a truthful one.

Further, in response to defendant’s hearsay objection at trial to the statement in question, the trial judge ruled that the statement' was relevant and necessary to place the time sequence of the events related by the victim. Thus, the judge admitted the evidence not to prove the truth of the facts recited, but to prove when the utterance occurred. For this reason, the evidence is not hearsay and was relevant to the issue of the time interval between the alleged sexual offenses and the knowledge of those offenses by a caring adult.

We find no error on the part of the trial judge in admitting the questioned statement into evidence. This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant complains that the trial judge erred in allowing into evidence testimony of one of the arresting officers, David McNish, as to the age of defendant, arguing that such testimony was hearsay evidence, also that the possible introduction of such evidence, being an inculpatory statement or confession, was not disclosed to defendant prior to trial.

At trial the prosecutor attempted to elicit from Officer McNish testimony as to the age of defendant. The officer was asked if he had made an. arrest report in which defendant had informed Officer McNish of his age. At this point, defense counsel objected on the grounds that, in response to defendant’s motion for discovery, the state had replied that it did not intend to use at trial any statements, admissions or confessions made by defendant. At that point, both the prosecutor and the defense counsel approached the bench and, following a discussion with the judge which is not transcribed, the court announced it would allow the testimony subject to defendant’s objection. At no point did defense counsel raise an objection on the grounds that the statement was hearsay testimony. The prosecutor then asked Officer McNish what defendant told the officer his age was; Officer McNish replied “Sixty-one.” Following a short recess, the prosecution again called Officer McNish back to the stand, and at that time, the officer testified about information from a computer printout from the Louisiana State Department of Public Safety, Driver’s License Division, which print-out gave the information concerning defendant’s age. Defense counsel again objected on the same grounds of nondisclosure prior to trial in response to discovery interrogatories. At no time did defense counsel object on the grounds of improper foundation to introduce official documents.

New grounds for an objection cannot be raised for the first time on appeal. State v. Glaze, 439 So.2d 605 (La.App. 1st Cir.1983).

That the testimony of the arresting officer as to the age of defendant should have been disclosed to defendant prior to trial because such a statement is a confession, or inculpatory statement is defendant’s sole remaining argument. However, in State v. Korman, 397 So.2d 1346 (La.1981), the Supreme Court held that in non-jury trials, the state is not required to give advance notice under LSA-C.Cr.P. art. 768 of its intent to use a confession and inculpatory statements of defendant. Further, in our discussion of assignment of error no. 1, we have determined that the state, by furnishing its complete file on defendant to defendant and his counsel pri- or to trial, had fulfilled its obligation in response to defendant’s request for discovery.

The trial judge was correct in admitting into evidence the testimony concerning defendant’s age. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial court erred when it denied his Motion for Acquittal at the close of the state’s presentation of its case-in-chief, arguing that the state had presented no evidence of defendant’s age, an essential element of the crime of indecent behavior with a juvenile.

LSA-R.S. 14:81 entitled “Indecent behavior with juveniles,” provides in pertinent part:

“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.”

When defendant’s motion for an acquittal is overruled at the close of the state’s case, on review the appellate court may consider, in determining whether there is evidence of guilt, not only evidence before the court at the time of the motion but the entire admissible evidence contained in the record of the trial. State v. Hicks, 376 So.2d 118 (La.1979); State v. Smith, 332 So.2d 773 (La.1976); United States v. Bland, 653 F.2d 989 (1981), U.S. cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592, rehearing denied, 454 U.S. 1165, 102 S.Ct. 1043, 71 L.Ed.2d 323 (1982). The denial of a motion of acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Hargrave, 411 So.2d 1058 (La.1982).

Defendant’s argument is based upon his contention that the evidence received at trial establishing defendant’s age is inadmissible. Since we have determined that the trial judge did not err in admitting such testimony into evidence at trial, we find that there is no merit to defendant’s argument. Further, arguendo, if error was committed by the trial court in admitting the evidence of defendant’s age, offered by Officer McNish, the error was harmless in view of the testimony of defendant’s wife who was called as a witness for the defense. Mrs. Ohrberg testified without objection that her husband was 62 years of age at the time of the trial.

Therefore, viewing the entire record of testimony taken at trial, we find no error on the part of the trial judge in denying defendant’s motion for acquittal.

ASSIGNMENTS OF ERROR NOS. 7 & 8

Defendant contends that the state failed to present sufficient evidence to prove defendant guilty of the crime charged and each element thereof, and for that reason the trial court erred when it denied defendant’s motion for new trial.

The granting or denial of a new trial is not subject to review by the appellate court. State v. Bell, 442 So.2d 715, (La.App. 1st Cir.1983). However, we review the sufficiency of the evidence herein as alleged in defendant’s formal assignment of error. See State v. Bell, supra.

When considering the sufficiency of the evidence presented at trial, the standard of review is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Smith, 431 So.2d 106 (La.App. 1st Cir. 1983). The fact finder is entrusted with the duty of weighing the respective credibility of the witnesses; the appellate court will not second-guess credibility determination beyond the appeal court’s evaluation of sufficiency under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

The trial judge determined that although there were many discrepancies in the young victim’s testimony at trial, he was convinced that the child was telling the truth and that the events retold actually happened. Further on review, we find the record contains sufficient evidence such that any rational fact finder could find that the state proved all the elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution.

There is no merit to these assignments of error.

Therefore, for the above reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . LSA-C.Cr.P. art. 484:
      "A motion for a bill of particulars may be filed of right in accordance with Article 521. The court, on its own motion or on motion of the defendant, may require the district attorney to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant.
      Supplemental bills of particulars or a new bill may be ordered by the court at least seven days before the trial begins.
      When a bill of particulars is furnished, it shall be filed of record and a copy of the bill shall be given to the defendant.”


author: BOWES, Judge.

text:
    Robert H. NAULTY v. OUPAC, INC., Insurance Plan of America, Inc. and State Farm Mutual Automobile Insurance Company.
    No. 83-CA-688.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      B. Frank Davis, Bernard, Cassisa, Babst & Saporito, Metairie, for plaintiff-appellee.
    Adrianne L. Baumgartner, Porteous, Hainkel, Johnson & Sarpy, New Orleans, James P. Doherty, Jr., Andrus & Doherty, Opelousas, Diane K. Zink, New Orleans, for defendants-appellants.
    Before BOWES, CURRAULT and DU-FRESNE, JJ.
   BOWES, Judge.

Defendants appeal from a judgment of the trial court in favor of plaintiff in the amount of $8,306.83 and against all defendants jointly and in solido. There was further judgment awarding plaintiff 12% penalties on the principal judgment and attorney’s fees of $4,000.00, plus costs and legal interest. By amended judgment, the court ordered defendants, I.P.A. and OUPAC, Inc., to pay to State Farm their virile share of such penalties and attorney’s fees. Finally, judgment was rendered in favor of Louisiana Power and Light Company arid against all defendants, jointly and in solido, in the amount of $1,720.44.

Plaintiff answered the appeal and requested that the attorney’s fees be increased.

We amend the judgment of the trial court and, as amended, affirm. Initially, we note that the amending judgment of March 11th was null. A judgment cannot be amended to alter the substance of the original judgment. CCP Art. 1951. The amendment came as a result of a motion for new trial, which motion was denied. The amended judgment was, then, not the result of the motion for a new trial, even in part. Accordingly, the judgment was improperly granted. We have based our findings on the judgment of February 8, which was valid, and the controlling judgment in the case.

The facts of the case are as follows: Plaintiff, Robert Naulty, purchased an automobile for which he sought to obtain liability and property insurance. Insurance Plan of America, Inc. (hereinafter referred to as IPA) contracted to procure a one-year policy of insurance protection providing limits of liability of $5,000 per person, $10,-000 per occurrence, and $5,000 for property damage. On the application, Mr. Naulty stated that he had had one conviction for careless operation of a vehicle. He paid $200.00 as a deposit on the final premium to be computed. State Farm Insurance Company was assigned the plaintiff’s policy, which was to cover the period of October 22, 1979 to October 22, 1980, at a premium rate of $785.00. The premium payments were to be financed through OU-PAC, Inc.; plaintiff would pay nine monthly installments of $51.35 each for the remainder of premium due. Plaintiff also signed a document which is styled “legal power-of-attorney” and which stated:

This is to inform you that OUPAC, Incorporated financed the premium for this insurance policy/policies. I hereby irrevocably appoint OUPAC, Incorporated or its Assigns my lawful Attorney-In-Fact to deliver to you my original policy or lost policy release for cancellation of this financed policy or to request cancellation for non-payment of premium in the event of my default in premium payment to OUPAC, Incorporated and to collect all return premiums due to me, including endorsements of return premium checks. I hereby ratify any and all acts that my attorney may do or perform hereunder.

Subsequently, it was discovered by IPA that the conviction referred to by Mr. Naulty in his application was one for reckless operation, although the evidence indicates that Naulty actually thought his original disclosure was correct. Because of this information, it was determined that Mr. Naulty’s premium would be increased by $182.00. On November 30, 1979, plaintiff was informed of the increase by IPA, and was also told: “Please remit your payment of $182.00 to State Farm by 12/30/79 to avoid cancellation.” A “Balance Due Notice” was sent from State Farm for $182.00, notifying plaintiff that he had until December 12, 1979, to pay the added premium. Plaintiff did not send the check by that date. He testified at trial that he had agreed to pay the extra premium, but did not have the cash at that particular period of time. It should be noted that plaintiff was employed offshore and was absent from his home approximately the second two weeks of every month.

Thereafter, on December 21, 1979, plaintiff received a notice of intent to cancel from State Farm, informing Mr. Naulty that his policy would be cancelled effective July 29, 1980, if the additional premium was not paid before that date. Mr. Naulty testified that he was out of town between January 16th and January 30th. On January 9, 1980, OUPAC sent to State Farm the following message on Mr. Naulty’s policy:

Please cancel policy for the above-mentioned as he has an additional premium and is not planning on paying it. Attached is our original power of attorney.

On January 16, 1980, State Farm issued to plaintiff a notice of cancellation effective retroactively to January 11th. As luck would have it, on January 31, 1980, Ms. Rebecca Peel, a friend of Mr. Naulty, who drove the insured auto with the knowledge and permission of plaintiff, struck a telephone pole owned by Louisiana Power and Light Co., occasioning damage to Mr. Naulty’s vehicle, as well as to the pole. Mr. Naulty made a claim for property damage to State Farm, who refused to pay any claims in the incident. A premium refund was later issued to Mr. Naulty.

Under these facts, Mr. Naulty brought suit against OUPAC, Inc., Insurance Plan of America, Inc., and State Farm. Louisiana Power and Light Company intervened for the damages to its property. State Farm filed a third party demand against OUPAC for indemnification of any judgment it might have to pay to Naulty. OU-PAC filed a similar demand against IPA. IPA, in turn, filed still another third party suit against Ms. Peel, and later against both OUPAC and State Farm. With everyone in their respective positions, the trial began.

It was found by the trial judge, as set out in his excellent and articulate original reasons for judgment, that: There was no dispute that an error had been made in the calculation of the original premium; that Mr. Naulty had advised IPA and State Farm that he disputed the premium (due to the difference in the traffic violation tickets); that the December 22nd notice to Mr. Naulty essentially advised him that the policy period would be shortened to July 1980, and would cover the full year only after Naulty paid the extra premium, and that he had until July 1980 in which to do so. IPA also received this notice from State Farm. After IPA received this notice, it proceeded to go forward with communicating to OU-PAC and advising them that Mr. Naulty had no intention of paying the additional premium, and instructed OUPAC to cancel the policy. When OUPAC was contacted by IPA, it sent the notice of January 9th to State Farm, along with the power of attorney signed by Mr. Naulty. State Farm made no effort to verify the information in that memo. The Court then found all original defendants mutually at fault for the following reasons:

The only basis for the cancellation was the letter written by OUPAC to State Farm on January 9, 1980. The enclosed power of attorney spelled out the authority given by Naulty to OUPAC. Nowhere does it state that OUPAC can cancel because of a possibility that a premium may not be paid in the future. State Farm had no legal right to cancel the policy especially after advising Naulty that he could pay the additional premium in July of 1980. It also did not have the right to retroactively cancel, the law providing a five day notice.
Although State Farm is adjudged to be culpable herein, it did not get there alone. The cancellation was a result of OUPAC’s improvident request which exceeded its authority. State Farm was induced to cancel the policy by OUPAC which was responding to an improvident request by IPA. The power of attorney was created to protect OUPAC in event premiums were in default.
IPA knew from State Farm that they were not in default. IPA, which had no right to request that OUPAC exercise its rights under the power of attorney in the first place, definitely had no legal right to make said request after being notified by State Farm that the premiums were not in default.

These findings are amply supported by the record.

R. Garic Toca, president of IPA, testified by deposition that he did not know, of his own knowledge, that his agency had requested OUPAC to cancel Naulty’s policy, and there were no written records to that effect. General procedure, in the event that a premium was due that the insured refused to pay, is to request the policy be cancelled, according to Toca. Steve ■ Schrempp, an employee of IPA who handled Naulty’s account, testified that he telephoned State Farm to ascertain whether or not Naulty had paid the premium. When State Farm informed him it was not paid, Schrempp said he notified OUPAC of that fact, but denied requesting OUPAC to cancel the policy.

J.E. Brignac, manager of OUPAC, testified that the agent (IPA) notified his agency that Naulty had no intention of paying and requested cancellation. He stated that he felt the agent had a right to so request because the agent would be liable for any deficiency of premium unpaid by the insured, according to their contract. Brig-nac testified that Schrempp had told him, in a telephone conversation, that he (Schrempp) had, indeed, requested OUPAC cancel. Schrempp then admitted that such was possible.

The trial judge obviously believed OUPAC’s witness, that is, that IPA did request cancellation. This was a reasonable determination based on the trial court’s evaluation of credibility of the witnesses, and we find no error in it. Thus we will not disturb this finding on appeal. See Canter v. Koehring, 283 So.2d 716 (La. 1973).

Louisiana R.S. 22:1162 defines an insurance broker as “... an individual, partnership or corporation who or which shall, for a commission or brokerage consideration, act for or aid in any manner in negotiating contracts of insurance, or in placing risks or soliciting or effecting insurance as agent for an insured or prospective insured other than himself or itself, and not as a licensed agent of an insurer, and not as an insurance solicitor employed by a licensed agent.”

IPA is obviously an insurance broker. A broker must observe the same fidelity toward both represented parties, and not favor one or the other. La.C.C. Art. 3017. A broker is responsible for fault, neglect or unfaithfulness in his management. C.C. Art. 3003.

There is a distinction between insurance agents who are employed by an insurance company to solicit risks and effect insurance for that company, and insurance brokers, who solicit insurance from the public generally, under no employment from any special company, placing the insurance with any company selected by the insured or, failing such selection, by the broker himself. In the absence of special circumstances, an insurance broker generally is considered to be an agent of the insured in procuring a policy of insurance. Karam v. St. Paul Fire and Marine Insurance Co., 265 So.2d 821 (La.App. 3rd Cir.1972) Affirmed on other grounds, 281 So.2d 728 (La.1973). See also Foster v. Nunmaker Discount Co. 201 So.2d 215 (La.App. 4th Cir.1967)

But because of the double representation the broker is a fiduciary to both parties. See Kieran v. Commercial Union Insurance Co. of N.Y., 271 So.2d 889 (La. 4th Cir.1973).

In this particular case, the relationship between IPA and Naulty was emphasized by the clause of the disclosure contract between OUPAC on the one hand and Naulty and IPA on the other, noted in footnote 3 of this opinion.

Because the extra premium due was never financed, this clause was never actually invoked. However, it is clear from the testimony that IPA feared the possibility of being liable for this deficiency, and, to avoid this contingency, requested cancellation. IPA breached its fiduciary duty to the plaintiff when it sought to bypass the contingency clause, disregarding its primary obligation to the plaintiff. IPA’s action was gratuitous, since it was under no obligation to underwrite the premium which plaintiff had not as yet financed through OUPAG, and so IPA cannot attempt to claim that it was forced to act to protect its own interests. Under these circumstances, IPA is liable to plaintiff inasmuch as its action began the chain of events culminating in the plaintiff's loss of insurance protection.

When OUPAC requested State Farm to cancel Naulty’s policy, it acted in excess of its power of attorney. As the trial judge pointed out, that document did not permit OUPAC to cancel because of a possibility that a premium might not be paid in the future. The power of attorney serves to protect OUPAC in case of premium default. The testimony at trial established that Naulty had made all contracted for payments timely, that he was not in default, and so the power of attorney did not become operative. Moreover, Naulty did nothing which could be interpreted as ratification of OUPAC’s request. Under Civil Code Article 3010, a mandate such as OUPAC is liable for its action in exceeding its authority, whether it did so negligently or whether it was done in bad faith.

Finally, State Farm is presumed to know the contents of the power of attorney in question. A copy of that paper was sent, along with OUPAC’s request. State Farm is culpable in this case because it should have been apparent to it, as it is to the courts, that OUPAC was acting outside the scope of its authority. OUPAC’s authority to act as it did was not specifically in accordance with the power of attorney. The words “in default” have a very definite meaning, and the conclusion reached by OUPAC of a future failure to pay, when the plaintiff was current in his obligation, does not constitute default. The statement sent to plaintiff by State Farm dated December 21, 1979, is evidence that State Farm did not consider plaintiff as having defaulted. State Farm, under these circumstances, had an obligation to investigate the matter further, and was precluded from cancelling plaintiff’s policy in the absence of Naulty’s actual failure to pay.

As the trial judge found, each defendant shared a portion of the fault. They are liable jointly and in solido for the damages proven at trial.

Further, we find that State Farm was arbitrary and capricious by its action in failing to pay the claim timely. An insurer must bear the risk of interpreting its own contract and, when such interpretations are erroneous, an insurer is not relieved of the duty to pay penalties and attorney’s fees. See Carney v. American Fire and Indemnity Co. 371 So.2d 815 (La.1979). State Farm is liable for the penalties and attorney’s fees assessed under La.R.S. 22:658. Because IPA and OU-PAC were each arbitrary and capricious, each exceeded their various authorities and failed in their respective duties toward plaintiff, they are both jointly liable for contribution to State Farm for their virile shares of these penalties and fees. See Richard v. American Federation of Unions, 378 So.2d 564 (La.App. 3rd Cir.1979) for a similar holding in that circuit. Both acted in concert with State Farm to bring about the present situation, and both contributed to the ultimate exposure of State Farm to liability. We find that the attorney’s fees granted by the court were reasonable, and supported by the evidence submitted by plaintiff’s counsel.

The record on appeal, including plaintiff’s answer brief, does not give us any basis on which to grant additional attorney’s fees. There is no statement as to time spent or work required in preparation for this appeal. Therefore, in the absence of a figure submitted by plaintiffs counsel, we are unable to increase attorney’s fees.

Accordingly, the judgment of the trial court is affirmed and amended.

Appellants who were the original defendants are to pay all costs of this appeal.

AFFIRMED AND AMENDED.

      . The pertinent portion of that notice says:

      . The notice was checked in the following particular:
      POWER OF ATTORNEY REQUEST — In compliance with a request based upon a power of attorney that you signed, this policy is cancelled as of the date and time indicated above.

      . The disclosure statement and note signed by plaintiff by which OUPAC financed the premium stated in part:
      In consideration of the payment of the balance of premiums due on the insurance policies, listed above, for the account of the insured by OUPAC, Incorporated, the Insured and the Agent, and/or Broker, jointly and solidarily, promise to pay and guarantees payment, to the order of OUPAC, Inc. the amount financed, plus finance charges at the times and in the amounts provided for in the above schedule of payments.


author: KLIEBERT, Judge.

text:
    BNO LEASING CORPORATION v. HOLLINS & HOLLINS, INC. et al.
    No. 83 CA 646.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Writ Denied May 25, 1984.

      . Rodney J. Madere, Metairie, for plaintiff-appellant.
    Paul C. Richard, Jr., Norco, for defendant-appellee.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by BNO Leasing Corporation, plaintiff, from a judgment dismissing its suit for “termination payments” under an alleged lease of equipment entered into with Hollins and Hollins, Inc., defendant corporation, and Percy Hol-lins, individually, as continuing guarantor. The trial judge concluded Percy Hollins believed he was executing a “straight lease” agreement rather than one providing for “termination payments” and hence declared the agreement unenforceable for lack of consent. On appeal, plaintiff contends the trial judge erred in reaching this conclusion. Although not for the same reasons stated by the trial judge, we affirm his decision to dismiss plaintiff’s claim.

Percy Hollins was a stockholder and president of the corporate defendant. He made inquiries at Orleans Coastal Equipment (hereafter supplier) relative to acquiring certain equipment and was referred by them to BNO. The defendant corporation and BNO then entered into an agreement, prepared and confected by BNO, dated October 26, 1981, referred to as a “lease”, relative to a (1) John Deere 450 Dozer, (2) Worthington 165 Air Compressor, and (3) John Deere Model 350 Dozer Wide Track. Under the agreement, BNO is said to have acquired from supplier the enumerated equipment for $49,130.00 plus $2,766.02 sales tax or a total of $51,896.02. Title to the equipment remained in BNO but defendant corporation had possession and use of the equipment and was obligated to pay to BNO thirty-six monthly installments of $1,909.52 or a total of $68,742.72 and “a termination value” in the event of default or at the expiration date of the lease. The agreement contains many other provisions which are extremely difficult to read or comprehend because printed on the front and back of extremely thin and transparent paper.

Under date of October 22, 1981 (four days before the date of the above described agreement) Percy Hollins individually executed an instrument referred to as a “Continuing Guaranty” which provided that in consideration of plaintiff entering into the agreement with the defendant corporation he was giving to plaintiff his continuing guaranty to the principal amount of $51,-896.02 plus interest, attorney fees, costs, etc., which might be incurred by the plaintiff.

After having made payments under the agreement over an eight month period, to-talling $11,457.12, BNO contended the defendant corporation was in default for failure to timely make two of the installment payments. Thereafter, BNO requested and defendant corporation made no objection to BNO taking possession of the equipment. At BNO’s request, at the time it took possession of the equipment the sales manager for Orleans Coastal Equipment (the original supplier) appraised the equipment at $34,000.00. Thereafter, BNO effected private sales of the equipment and received a total, of $28,000.00 for same.

In August 1982, plaintiff brought suit against defendant corporation and Percy Hollins individually, as the continuing guarantor, for $12,708.92 plus 11/2% monthly interest and 25% attorney fees. Originally, the defendants filed a general denial. Subsequently, the answer was amended to assert a lack of consent due to a misunderstanding as to the provisions of the agreement.

In his reasons for judgment, the trial judge accepted Percy Hollins’ testimony that he believed he had entered into a “straight lease” (one in which he merely paid a monthly rental for the use of the equipment) rather than one in which the plaintiff could recover a “deficiency” in the event of a default. Although we also accept the testimony, we believe the trial judge erred in his ruling because Hollins testified he never read the agreement before signing it. Under the law, Hollins was not compelled to read the agreement, but since he chose not to exercise the right to read the agreement, he cannot now complain about a misunderstanding because the law holds him to the agreement the same as though he exercised his right to read it. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983). Nevertheless, for the reasons which follow, we believe the trial court properly dismissed the plaintiffs claim.

Although the lease is structured with legally charged language of a lease, it does have the characteristic of a sale and a lease. Further, readily apparent, on a mere reading of the agreement, is that the design purpose of the agreement was to structure something other than the usual seller, buyer, financier relationship between the supplier, the defendant corporation, Percy Hollins and BNO in order to avoid prohibited or restricted provisions of consumer protection legislation involving the usual seller, buyer, financier relationship created by a sale and mortgage. Past efforts to structure such an agreement have on many occasions been struck down by our courts where the agreement, regardless of the terms used to confect it, was a prohibited common law conditional sale, Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193 (1908), or an effort to collect future rentals even though the lease was terminated and possession of the property returned to the lessor, 327 Bourbon Street, Inc. v. Pepe, Incorporated, 257 La. 577, 243 So.2d 262 (1971) or a creditor’s effort to collect a deficiency resulting from a private, rather than a judicial, sale in violation of the Deficiency Judgment Act. LSA-R.S. 13:4106, 4107.

In concluding that the particular agreement at issue in Pastorek v. Lanier Systems Company, 249 So.2d 224 (4th Cir. 1971), though couched in terms of a lease, was a prohibited conditional sale, Judge (now Justice) Lemmon said at page 226:

“... While these parties have attempted to structure their relationships in particular ways, by designating roles through the use of legally charged language, we are bound to find the relationships as they exist and not simply as they have been described. Words will have import and can be binding only when they describe relationships which actually exist, but not when they are merely labels which are used to alter or disguise actual relationships. This does not conflict with, but actually supports, the principle that agreements legally entered into have the effect of law on those who form them, the question here being what agreements actually were entered into.” Article 1901-CC

Thus, the relationship of the parties as they legally exist rather than that designated by the legally charged language in the agreement are to be applied in deciding whether BNO is entitled to the payment sought under the following termination provisions of the agreement:

29. DEFAULT BY LESSEE: If any one of the following events (each of which is called an “Event of Default”) shall occur: (a) Lessee shall default in payment of any rental or other payment required hereunder when due and such default shall continue for 10 days; or (b) Lessee shall default in the payment when due of any indebtedness of Lessee to Lessor arising independently of this Lease and such default shall continue for 10 days; or (c) Lessee shall breach any warranty hereunder; or (d) Lessee shall default in the performance of any other agreement hereunder and such default shall continue for 10 days after written notice thereof to Lessee by Lessor; or (e) Lessee shall become insolvent or make an assignment for the benefit of creditors; or (f) Lessee shall apply for or consent to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of all or a substantial part of its assets, or such receiver, trustee, conservator or liquidator shall be appointed without the application or consent of Lessee; or (g) any petition is filed by or against Lessee under the Bankruptcy Act, as amended, or under any other insolvency law provided for relief of debtors; then immediately and to the extent permitted by law Lessor shall have the right to exercise any one or more of the remedies hereinafter provided.
30. REMEDIES: If an Event of Default shall occur and be continuing, Lessor may give Lessee notice in writing that this Lease is in default and:
b. Terminate this Lease forthwith (whereupon Lessee’s right to use the Equipment shall absolutely cease, but Lessee shall remain liable as hereinafter provided and cause Lessee at its expense promptly to return the Equipment to the possession of Lessor at Lessor’s current address, or Lessor may enter upon the premises where any or all items of the Equipment are located and take immediate possession of and remove the same by summary proceedings or otherwise, and thereafter hold, possess, and enjoy the same free from any right of Lessee, its successors or assigns. Lessee shall, without further demand, forthwith pay to Lessor an amount .equal to unpaid rent due and payable for periods up to and including the rental period during which Lessor has declared this Lease to be in default, plus, as liquidated damages for loss of a bargain and not as a penalty, an amount equal to the Termination Value of the Equipment as calculated pursuant to the Table attached hereto as of the period during which Lessor has declared this Lease to be in Default. Following the return of the Equipment to Lessor pursuant to this paragraph (b) Lessor may hold,, possess, and enjoy free from any right of Lessee, use of the Equipment for any purpose whatever. Lessor, at its option, may either re-lease the Equipment or sell it for the best price obtainable.
All Remedies of Lessor hereunder are cumulative and in addition to any other remedies provided for by law and may to the extent permitted by law be exercised concurrently or separately. The exercise of any one Remedy shall not constitute a waiver of or preclude the exercise of any other Remedy. No failure or delay on Lessor’s part to exercise any right or remedy shall operate as a waiver thereof or modify the terms of this Lease, nor shall any single or partial exercise by Lessor of any right or remedy preclude any other or further exercise of the same or any other right or remedy.

The table referred to in the above quoted provision and the one used by BNO’s witness in computing its claim is as follows:

TABLE OF CASUALTY AND TERMINATION VALUES

Lease #

1. These Values are expressed as a percent of the Total Cost of the Equipment listed on the accompanying lease.

2. Month number 1 (one) is the month in which the Rental Commencement Date falls.

3. The Value for any month is applicable on the last day of the month and up to, but not including, the last day of the following month.

4. The Values given below have been reduced by any advance payments which have been or will be made. Advance payments will therefore not be applied to the total Rental due on any Item at the time of a Loss, nor can any advance payments be returned to Lessee without a corresponding adjustment in these Values.

Month Number Value Month Value Month Value

Commencement Date 100%

1. 98.43 13. 75.45 25. 44.81

2. 96.81 14. 73.19 26. 41.91

3. 95.13 15. 70.87 27. 38.96

4. 93.40 16. 68.50 28. 35.95

5. 91.62 17. 66.08 29. 32.89

6. 89.78 18. 63.61 30. 29.78

7. 87.90 19. 61.08 31. 26.62

8. 85.95 20. 58.50 32. 23.40

9. 83.96 21. 55.87 33. 20.13

10. 81.91 22. 53.18 34. 16.81

11. 79.81 23. 50.45 35. 13.43

12. 77.65 24. 47.65 36. 10.00

EXPIRATION DATE -10%

When asked to explain to the court the function of the above quoted table, BNO’s employee witness said:

“A. It draws out the values as to how we calculate the termination during any period over the term of the lease.

Q. In other words, if the lessee would like to terminate the lease with you and it’s specificed (sic) if he so chooses to terminate that there is a value placed on that.

A. Right

Q. OK. That is made part of the lease?

A. Right.”

The equipment covered by the agreement was reacquired from the defendant by an employee of the Bank of New Orleans rather than by BNO Leasing Corporation. The bank employee testified that “the Bank” reacquired the equipment and at the same time he discussed with the defendant’s attorney the waiver of any “deficiency” which might be forthcoming as a result of the taking of the equipment by virtue of an alleged default. He also testified that he computed the “termination value” due by the defendant by taking the original purchase price of the equipment ($51,-896.02) and multiplying it by the termination percentage of value for a termination eight months after the inception of the lease (85.95%) and thus determined the termination value to be $46,708.96 (sic). To arrive at the amount claimed from the plaintiff, he subtracted from the termination value of $46,708.96 the appraised value of the equipment, $34,000.00. The difference of $12,708.96 was the amount claimed to be due by the defendant corporation and the continuing guarantor.

As we apply the above quoted provisions of the lease and termination value table to the known facts, the termination value of the equipment was $44,604.62 ($51,896.02 X 85.95%). The mathematical error in the computation of the termination value is not material. What is material is that according to the literal wording of Section 30(b), above quoted, the defendant corporation owes the full termination value, i.e., $44,-604.62. We find no provision in the agreement which would entitle the defendant to a credit for the appraisal value (as the plaintiff was apparently willing to give) or for the amount which the bank received for the sale of the equipment.

Clearly, therefore, the termination payments provided for in the lease is nothing more than the guarantee of receipt by lessor from lessee of the purchase price of the equipment. It does not have the redeeming features of a terminating value table of the open end car rental lease at issue in Executive Car Leasing Company of New Orleans, Inc. v. Alodex Corp., 265 So.2d 288 (4th Cir.1972), 279 So.2d 169 (La.1972). The primary redeeming feature of that agreement was the fact that the lease was an open end lease (no fixed termination date) and the termination value escalated upwards or downwards depending on the condition of the vehicle (as established by a sale) at the time the lessee elected to terminate the lease. The termination value computation was triggered by the exercise of the lessee’s right to terminate the lease and the termination value was in fact additional rental for the period the vehicle was under lease. Here, however, the plaintiff’s effort to give a credit for the appraisal value of the equipment, although not required by the provisions in the agreement, was an effort to try to validate a transaction which was invalid on its face.

Additionally, the lease contains a provision (Paragraph No. 4) which provides that if the equipment fails to perform, the defendant corporation’s remedy is against the supplier, not BNO. This clause evidences an intent on BNO’s part to function as a financing agent and not as a lessor as contemplated by our Civil Code and is in conflict with its characterization in the agreement as an owner-lessor. We know of no legal basis by which a lessor can shift his legal responsibility to deliver, maintain and/or warrant the thing leased to a third party and still effect a contract of lease. Under the provisions of LSA-C.C. Articles 2692 and 2693, the essence of a contract of lease is to impose this responsibility and obligation on the one seeking to be a lessor.

The continuing guaranty agreement executed along with the principal agreement manifest an intent or understanding different from a conventional lease obligation. It provides in part as follows:

“In consideration of BNO LEASING CORPORATION, of New Orleans, Louisiana (hereinafter called “Lessor”) at my request entering into a lease with Hollins & Hollins, Inc. (hereinafter called “Lessee”), I hereby give this continuing guaranty to the said Lessor, its transferees or assigns, for the payment in full, together with all interest, fees, and charges of whatsoever nature and kind, of any indebtedness, direct or contingent whether secured or unsecured, of said Lessee, to said Lessor up to the principal amount of Fifty One Thousand Eight Hundred Ninety Six and 02/100 Dollars, plus all interest, attorney’s fees, costs, etc., which may be incurred by said Lessee, whether due or to become due, and whether now or existing or hereafter arising.”

The binding language of the guarantee provides as follows:

“I do furthermore bind and obligate myself, my heirs and assigns, in solido with said Lessee, for payment of the said indebtedness precisely as if the same had been contracted and was due or owning by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said Lessee, making myself a party thereto; hereby waiving all notice including notice of any such indebtedness and of demand, presentment, protest or notice of demand or non-payment and of notice of any act to establish the liability of any party on any commercial or other paper, indebtedness or obligation covered by this guaranty.”

This is not a guarantee of rentals payment or rental notes but, rather, a guarantee of the payment of the purchase price of the equipment plus finance charges and attorney fees as they may become due.

We agree with the holding in Executive Car Leasing v. Alodex Corpora tion, supra, but the agreement involved there was not the one involved here. Rather, the one involved here is exactly the type Justice Tate had reference to when he said [in Executive, supra] he was not faced with what is denoted as a lease but in fact established a buyer-seller or lender-borrower relationship or one which sought to collect future rentals in the guise of additional compensation for the use of the vehicle during the leased months. Here the agreement in fact contemplates a buyer-seller relationship and since title is retained by BNO is a prohibited conditional sale. Lee Construction Co. v. L.M. Ray Const. Corp., 52 So.2d 841 (La.1951). Further, since BNO received the equipment and sold it, its effort here is an effort to collect a deficiency resulting from a private, rather than a judicial, sale in violation of the Deficiency Judgment Act (LSA-R.S. 13:4106, 4107). Additionally, even if we characterized the agreement as establishing a valid lessor-lessee relationship the termination of value provision would have to be construed as a prohibited effort to collect future rentals even though the property has been received and disposed of by BNO. See Weil v. Segura, 178 La. 421, 151 So. 639 (1933). Also, since the continuing guarantee agreement was confected and executed prior to the principal agreement, even if construed as a surety agreement for future rentals, it would be unenforceable. (LSA-C.C. Article 3035). For those reasons, therefore, we hold the trial judge properly dismissed the plaintiff’s claim.

All costs to be borne by the plaintiff.

AFFIRMED.

      . Although not reflected by the record, it is apparent the bank and the plaintiff are affiliated corporations. The basis for the bank taking steps to terminate the lease because of an alleged default rather than the plaintiff is not reflected by the record.