text:
    In the Matter of the SUCCESSION OF Lowell Hardy KEEL.
    No. 83-CA-0228.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Paul S. West, Baton Rouge, for plaintiff.
    Jefferson D. Hughes, III, Walker, for defendants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

In this will contest, Irma Janelle Keel, wife of decedent/testator, appeals from a judgment declaring null and void a statutory will prepared in accordance with R.S. 9:2442. The trial court found that the testator, Lowell Hardy Keel, lacked the required testamentary capacity to confect a will. We affirm.

BACKGROUND PACTS

The will was executed on January 19, 1982, while decedent was in Baton Rouge General Hospital. He was admitted to the hospital on January 15 suffering from headaches and pain. Present at the execution of the will were the drafting attorney, two witnesses (a friend of decedent and the attorney’s secretary) and decedent’s wife, Irma Janelle Keel. The will’s provisions gave the disposable portion to Irma Janelle Keel and the forced portion to decedent’s children who were born of a previous marriage. Additionally, Irma Janelle Keel was granted a usufruct over the children’s forced portion.

The testator died on February 4, 1982, and Kenneth B. Keel, decedent’s son, subsequently filed an opposition to the probate of the will alleging that decedent suffered from a terminal illness and was mentally incompetent at the time the will was executed. At the probate hearing, the trial judge agreed and found the testator lacked the testamentary capacity to confect a will and declared the testament void. Irma Janelle Keel has appealed, alleging the trial court erred in its findings.

TESTAMENTARY CAPACITY

Initially, it must be noted that testamentary capacity is solely a question of fact to be determined by the trial court and its finding will not be disturbed on appeal in the absence of manifest error. Succession of Dubos, 422 So.2d 444 (La. App. 4th Cir.1982), writ denied, 429 So.2d 132, 160 (La.1983). With regard to the issue of capacity, there exists a presumption that the testator possessed the requisite testamentary capacity, which is only rebutted by satisfactory and convincing evidence. Succession of Bush, 292 So.2d 915 (La.App. 1st Cir.), writ denied, 294 So.2d 837 (La.1974). The degree of proof necessary is similar to that required to rebut the presumption of innocence in a criminal trial. Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 15 (La.1980).

The specific burden on the attacking party is to prove that at the time of execution the testator was not sufficiently sound of mind to fully understand the nature of the will and appreciate its effects. Succession of Brown, 251 So.2d 465 (La.App. 1st Cir.1971). In determining testamentary capacity, the courts will consider the physical and mental condition of the testator not only at the time of execution, but also prior and subsequent thereto, since the actions, conduct and physical and mental condition of the testator before and after the execution of the will are of probative value in deciding testamentary capacity. Succession of Brown, supra.

At the probate hearing, the drafting attorney, who also acted as notary, testified that he read the will to decedent and explained each paragraph. The testator then read the will, stated he understood it, and inquired whether his wife received the greatest benefit possible. The attorney had drawn the will to so favor the wife upon her instructions that this was the testator’s desire.

After the testator was unable to sign his name, the testament was modified to reflect that because of his infirmity, a mark would be substituted for his signature. The attorney stated that he felt the testator knew what was happening and understood what he was doing. His secretary, who was also a witness, testified that she also felt that decedent was competent. For both the attorney and his secretary, it was their first and only meeting with decedent.

The other witness to the will, Claudine Richter, was a friend of the decedent and Irma Janelle Keel. She corroborated the testimony of the attorney and also felt that the decedent was aware of his actions and understood the will. Irma Janelle Keel, who was also present at the will’s execution, testified that decedent was competent and understood the will.

However, according to Kenneth Keel, decedent was disoriented and unresponsive during his stay at Baton Rouge General Hospital. Gayle Kelly, decedent’s sister, testified that she visited decedent nearly every day at the hospital. She stated that decedent was disoriented as to time and location, and often in pain. She stated that on one occasion decedent thought he was in San Angelo, Texas, and the year was 1936. Donald Kelly, husband of Gayle Kelly, testified that when decedent was admitted to the hospital he was disoriented and remained so during his stay there.

The treating physicians, Dr. James Lutschg, internal medicine specialist, and Dr. John Hopper, neurologist, both testified by deposition that the decedent was not mentally competent to draw a will. The testator was suffering from both lung and brain tumors. The associated swelling with the brain tumor caused his disorientation problems. Both doctors consulted testator’s wife, Irma Janelle Keel, for consent to commence treatment, because they felt testator could not make a rational decision regarding therapy alternatives. Even though the testator did improve somewhat, neither doctor felt that he was ever mentally competent enough to understand the provisions of a will. It is doubtful whether testator could even read, as he was also suffering double vision brought on by the brain tumor. Dr. Hopper stated that the testator often referred direct questions to his wife or sister for answering rather than answer them himself.

It is apparent from the foregoing that the trial judge was presented with diverse testimony. Our examination of the record and the testimony leads us to conclude that the trial judge did not commit manifest error in finding that the testator lacked testamentary capacity at the time of the making of the will. Accordingly, we affirm the judgment of the trial court.

DECREE

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

AFFIRMED.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Sarah ALEXANDER.
    No. 83 KA 0261.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Ossie B. Brown, Dist. Atty. by Jeffrey Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    David Price, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Appellant-defendant, Sarah Alexander, was charged with the second degree murder of her common-law husband, Roger “Jack” Johnson, LSA R.S. 14:30.1. She was subsequently convicted by a jury and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

Appellant and the victim had been living together for several years but had separated a few weeks before the shooting. On the night of the murder, appellant and two friends walked to a nearby lounge. Upon reaching the lounge, appellant noticed that Mr. Johnson’s car was parked on the street. Appellant proceeded to enter the lounge while her friends waited outside. Shortly thereafter, the victim and appellant emerged from the lounge and walked towards Mr. Johnson’s car. Witnesses testified that Mr. Johnson appeared to give appellant some money. As they approached the car, appellant removed a gun hidden in her clothing and shot the victim in the back. Mr. Johnson managed to get inside his car, at which time appellant broke the car window and shot him another two times. Mr. Johnson bled to death as a result of one of the bullets perforating his aorta.

Appellant has only briefed one of the three assignments of error she alleges and thus, tho^e assignments not briefed are considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4. In her remaining assignment of error, appellant alleges that the trial court erred in overruling a defense objection to exercising peremptory challenges one at a time.

It is appellant’s contention that the trial court’s refusal to require the state to exercise all of its peremptory challenges at once unfairly prohibited her right to full voir dire examination. The prospective jurors were called up in panels of six for examination. Rather than having the state use its peremptory exceptions all at once, the court focused on one prospective juror at a time first asking the state for challenges and then the defense.

Appellant maintains that this procedure results in undue focus on individual jurors with the remaining prospective jurors given to speculation about patterns of exercise of challenges. Additionally, appellant maintains that this procedure forced her to use challenges she would not have had to use had she known of those that the state planned to use. Most notable, however, appellant does not allege that she was forced to accept an unsatisfactory juror because of this procedure.

We find no merit to appellant’s argument. LSA C.Cr.P. art. 788 provides in pertinent part, “After the examination provided by article 786, a prospective juror shall be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant who shall accept or challenge him.” We fail to see how this statutory provision mandates the state to use all of its peremptory challenges at once. Additionally, the trial court has the authority to control the proceedings at trial. LSA C.Cr.P. art. 17.

AFFIRMED.

      . Prior to trial, the court and defense counsel discussed in chambers the manner in which voir dire was to be conducted. Defense counsel objected to the method proposed by the judge, which is the normal method exercised in his court. Although defendant’s objection was actually made prior to voir dire, when the parties returned to the courtroom, the court ordered defendant’s objection noted in the record.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Willie Pearl CRAIN.
    No. 83 KA 0294.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    William J. Knight, Asst. Dist. Atty., Franklinton, for the State.
    Thomas J. Ford, Franklinton, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Willie Pearl Crain, was charged with the crime of public intimidation in violation of LSA-R.S. 14:122 and was found guilty by a six-person jury of attempted intimidation of a public official. The trial judge imposed a sentence of two and one-half years at hard labor, and defendant now appeals his conviction and sentence requesting a review of the record for errors patent on the face of the record.

No assignments of error were filed pursuant to Articles 844 and 920(1) of Louisiana Code of Criminal Procedure. Therefore, under Article 920(2) of the Louisiana Code of Criminal Procedure, we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Delaney, 359 So.2d 976 (La.1978); State v. Gerald, 333 So.2d 645 (La.1976).

We have reviewed the record and find no such error. For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

      . In State v. Raymo, 419 So.2d 858 (La.1982) at p. 861, the Supreme Court stated "regardless of how the error is brought to the attention of the reviewing court”, the question of sufficiency of evidence, or the lack of, to convict a defendant can be reviewed on appeal ex proprio motu, "without considering the defendant’s assignments of error". Therefore, we have reviewed the testimony taken at trial and the evidence presented and find that there is sufficient evidence in the record to find defendant guilty under the standards set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Earl HANEY.
    No. 83 KA 0295.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee by Leila Withers, Asst. Dist. Atty.
    James Farrier, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Earl Haney (defendant) was charged with the crime of simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2. He pled not guilty, waived his right to a jury trial, was tried and found guilty of simple burglary. He was sentenced to two years at hard labor with credit for time served. The sentence was suspended, and defendant was placed on active supervised probation for a period of two years, with a special condition of probation that he make restitution of $150.00 to the victim. He now brings this appeal alleging one assignment of error.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred when it denied his motion to quash based on the grounds that more than two years had elapsed between the institution of prosecution and the commencement of trial.

Prosecution was instituted on August 25, 1980, when the bill of information was filed charging defendant with a violation of La. R.S. 14:62.2. The court minutes for Tuesday, January 6, 1981, indicate that Mr. James Farrier filed a motion for preliminary hearing on behalf of Reginald Huey. The preliminary hearing was scheduled for March 5,1981. That motion inadvertently was filed in the name of Reginald Huey, a co-defendant. Some confusion was created by this error which counsel corrected when defendant’s motion to quash was heard. At that time counsel stated for the record:

Yes, I’d, I’d — Judge, this matter is — uh— has been up — uh—for trial on several occasions and reassigned. Uh — and previous to that it was up on a motion for a preliminary examination, which was filed. I filed. And, the record shows that I filed it for — the client’s name was Reginald Huey. I filed it for Earl Haney. I’ll go on record to the effect that early in these proceedings I filed a mo-lion for a preliminary examination and his name was — uh—by error placed into the motion as Reginald Huey. But, that all along I have represented Earl Haney and Mr. Bob Oliver represented Reginald Huey in these matters.

On that date an oral motion for continuance was made by a codefendant and was granted over the State’s objection. The hearing was reassigned for May 11, 1981. Neither defendant nor his counsel was present in court on March 5. On May 11, defendant and his counsel again failed to appear, and the court ordered the matter reassigned for July 15, 1981. On July 15 a hearing was held, the court found that probable cause existed, and a trial date was set for October 19, 1981. After that time, the trial date was reassigned on several occasions, sometimes on motion of the State, at least once on joint motion of the State and defendant, and once on defendant’s motion. On September 22, 1982, defendant filed a motion to quash urging the two-year statute of limitations which is basically the same argument presented to us in this assignment of error. The motion to quash was denied by the court. On September 23 the case proceeded to trial, and defendant was found guilty of simple burglary.

Clearly, more than two years elapsed from the institution of prosecution on August 25, 1980, until the trial on September 23, 1982.

La.C.Cr.P. art. 578 sets forth the general rule as to limitations upon criminal trials and reads in pertinent part:

Except as otherwise provided in this Chapter, no trial shall be commenced:
(1) In capital eases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; ...

La.C.Cr.P. art. 580 entitled “Suspension of time limitations,” provides as follows:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

A heavy burden is placed on the state to show some interruption or suspension sanctioned by law to justify a trial of the accused where the record reveals the lapse of time permitted by law between the filing of a felony charge and the trial of the accused. State v. Guidry, 395 So.2d 764 (La.1981).

The record clearly reveals that the two-year period for commencement of trial was not exceeded. From institution of prosecution on August 25, 1980, to the filing of defendant’s motion for preliminary hearing on January 6, 1981, the total prescriptive time elapsed was four months and two weeks. As per La.C.Cr.P. art. 580, the running of prescription was suspended until July 15, 1981, the date of judgment on defendant’s preliminary hearing. Defendant’s trial was begun on September 23, 1982, a point in time fourteen months and one week into the running of prescription following the period of suspension and well within the 24-month period allowed under La.C.Cr.P. art. 578(2).

We find that the State has met its heavy burden of showing that a suspension of time occurred sanctioned by law and that the judge properly denied defendant’s motion to quash.

There is no merit in this assignment of error.

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

AFFIRMED.

      . The written motion is not a part of this record but was filed in the Reginald Huey record.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Sheila T. GRIFFIN.
    No. 83 KA 0304.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    J. Kevin McNary, Salvador J. Liberto, Asst. Dist. Attys., Covington, for appellee.
    S. Austin McElroy, John R. Simmons, Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Sheila T. Griffin, was charged by bill of information with one count of armed robbery, in violation of LSA-R.S. 14:64, in connection with the armed hold-up of a Delchamps Supermarket in Mandeville, Louisiana. A jury convicted defendant as charged, and she was sentenced to serve five years at hard labor, the minimum permissible sentence. She has appealed.

Defendant has made no assignments of error. There being no assignments of error, we are limited in our consideration to errors discoverable by a mere inspection of the pleadings and proceedings. LSA-C. Cr.P. art. 920. We have thoroughly reviewed the entire record and transcript of the trial and find no error of that nature.

In State v. Raymo, 419 So.2d 858 (La.1982), the Louisiana Supreme Court seemed to indicate that although the assignments of error do not so dictate, all transcripts of evidence in criminal proceedings must be reviewed on the appellate level to determine whether or not there exists sufficient evidence to support a conviction. As we have stated, we have thoroughly reviewed the transcript of the trial. We find that sufficient evidence was introduced at trial to establish all elements of the offense and to justify the return by the jury of a verdict of guilty as charged.

The conviction and sentence are affirmed.

AFFIRMED.


author: SHORTESS, Judge. CRAIN, Judge, LANIER, Judge,

text:
    STATE of Louisiana v. Robert LEAGEA.
    No. 83KA0376.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Premila Chumbley, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Vincent Wilkins, Jr., Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Robert Leagea (defendant) was charged by bill of information with possession of a firearm by a person convicted of a felony, in violation of La.R.S. 14:95.1. After trial by jury, defendant was found guilty as charged. He was sentenced to three years at hard labor without benefit of probation, parole, or suspension of sentence and to pay a fine of $1,000.00 or in default of payment thereof, to be confined in the East Baton Rouge Parish Prison for thirty days. The trial court suspended the fine. Defendant appeals his conviction and sentence and alleges one assignment of error. FACTS

Paul Maranto, a deputy sheriff for East Baton Rouge Parish, was on special patrol during December of 1981 checking the various Louisiana National Bank branches within his zone. On December 7, as he approached the LNB branch on Gus Young Avenue in Baton Rouge, he saw defendant in a parked automobile speaking to another man in a ear beside his. When the men noticed Maranto approach, they both started to exit the lot in separate directions. Defendant made a motion like he was either placing or moving something under the seat of the ear. Defendant left the parking lot and proceeded in a westerly direction. Maranto followed and noticed that his license plates had expired. Maran-to displayed his red lights, sounded his siren, and pulled defendant over. Maranto ordered defendant out of his vehicle two or three times. Defendant hesitated at first but finally stepped from the ear. Maranto told him to stand at the rear of his car while he approached the front of the vehicle. The driver’s door had been left open. He looked inside and saw a pistol lying on the floorboard of the driver’s side. He retrieved the gun, went to his unit, radioed his office and learned that defendant was a convicted felon. He then advised defendant that he was under arrest and orally gave him his Miranda rights. When he asked defendant if the gun was his, defendant told him, “Yes, I won it in a dice game about a year ago.”

However, defendant testified at trial that the gun did not belong to him; that he had never seen the gun before; and that he at no time admitted that he had won the gun in a dice game. He also testified that he had two prior burglary convictions; that Maranto did not advise him of his rights; and that he had a broken leg.

ASSIGNMENT OF ERROR

Defendant alleges that the trial court committed error when it ruled admissible a statement made by him while being detained because his detainment was illegal, so any evidence acquired during that time was inadmissible. The statement was the admission of ownership of the gun which was discovered by Maranto on the floorboard of defendant’s automobile.

THE STOP

Under the Louisiana Highway Regulatory Act, Chapter 1 of Title 32, Louisiana Revised Statutes, sections 1-398.5 (1950), an officer of the law has full authority to stop a motorist and issue a citation to him for an expired registration, license plates, and inspection sticker. La.R.S. 32:5. When Maranto saw that the license plates on defendant’s moving vehicle had expired, he was under a duty to stop him and issue a citation. He stopped him and discovered that defendant’s inspection sticker had expired. He issued a citation for that violation also.

Maranto admitted that he stopped defendant because he saw that his license plates had expired and also because of the suspicious way defendant had acted in the bank parking lot. It was a combination of these two factors which prompted the stop.

Maranto had to order defendant out of the car two or three times before he complied. When defendant finally did get out and go to the rear of his car, Maranto, obviously mindful of defendant’s hesitation and aware of the suspicious movements which caused his original concern, approached the open door of the car, looked inside, and saw the pistol on the floorboard. It is this act of looking in the car that defendant complains is an unreasonable search and seizure in violation of the Fourth Amendment. He urges that the statement obtained after that search is tainted and inadmissible under the exclusionary rule.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that following a lawful investigatory stop police officers may, under certain circumstances, constitutionally conduct limited searches without a warrant for weapons. The opinion emphasizes that the sole justification for such a search is the safety of the officers and others and, consequently, the scope of the search must be limited to the discovery of weapons. State v. Reed, 388 So.2d 776 (La.1980). Although Terry involved the stop and subsequent pat-down search of a person, the court was careful to note that it need not develop at length the limitations which the Fourth Amendment places on a protective search and seizure for weapons. It directed that these limitations would have to be developed “in the concrete factual circumstances of individual cases.” Terry, 88 S.Ct. at 1884.

In State v. Reed two police officers on a routine traffic patrol stopped a car for having an expired brake tag. They approached on either side of the car, asking the defendant and the passenger to step out of the car. As the defendant exited the vehicle, one of the officers spotted on the front seat a pistol with the barrel stuck into the crack of the seat. He ordered the defendant and the passenger to the rear of the car and removed the pistol. Upon learning that the defendant was a convicted felon, the officers placed him under arrest for possession of a firearm by a convicted felon. Defendant’s motion to suppress was denied, and he was convicted.

The Louisiana Supreme Court affirmed the conviction, citing Terry and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Recognizing that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties, the court found that it was “reasonable” for the officers to take temporary custody of the weapon for their own protection during the course of the investigation.

Finally, we note that the U.S. Supreme Court once again took up the issue of the Terry protective search in Michigan v. Long, — U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Long was convicted of possession of marijuana obtained by two deputies who stopped him after observing his car traveling erratically and at an excessive speed. Long was the only occupant of the automobile, and he met the deputies at the rear of the car after he was stopped. The door on the driver’s side of the car was left open. One of the deputies requested Long to produce his operator’s license and had to repeat the request before Long complied. The officer then requested that Long produce the vehicle registration. After the officer repeated this request, Long turned from the officers and began walking toward the open door of the vehicle. The officers stopped Long and frisked him at that point but found no weapons. One of the officers then kept Long at the rear of the vehicle while the other flashed his light into the interior of the vehicle. He noticed something protruding from under the armrest on the front seat and lifted the armrest. He saw an open pouch on the front seat and determined that it contained what appeared to be marijuana. Long was then arrested.

The court chose this case to specifically address the proper area of the Terry search. It reiterated the holding of Mimms allowing police to order persons out of an automobile during a stop for a traffic violation and frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. It also recognized the fact that suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed. The court further relied upon its finding in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) that articles inside the passenger compartment of an automobile are generally within the area into which an arrestee might reach in order to grab a weapon. The court recognized that “protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger.” Long, 103 S.Ct. at 3480. Based on the circumstances present in Long, the court concluded that:

[T]he balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.... Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police control and retrieve a weapon from his automobile. Long, 103 S.Ct. at 3481

Our reliance on the foregoing jurisprudence requires that we carefully examine the circumstances of this search to determine if it was permissible under the Fourth Amendment. Considering defendant’s furtive gesture when he first saw Maranto, his repeated hesitation after Mar-anto’s requests for him to get out of the car, and his unrestrained proximity to the open door once he did leave the car, we find that Maranto did possess an “objectively reasonable belief that the suspect [was] potentially dangerous.” (Emphasis added.) Long, 103 S.Ct. at 3481. We therefore find that Maranto’s immediate act of looking into the vehicle was not prohibited by the Fourth Amendment.

THE STATEMENT

Maranto testified that he arrested defendant and orally advised him of his Miranda rights. Thereafter, in response to his questions, defendant voluntarily admitted that the gun was his and said, “I won it in a dice game about a year ago.”

The trial court denied defendant’s motion to suppress the statement and ruled it admissible. We agree. The search conducted after the valid stop was constitutional under the Fourth Amendment, Michigan v. Long, and State v. Reed. Any voluntary statements made by defendant were admissible and entitled to be presented to the jury. Here, the jury believed Maranto’s version of the facts as it found defendant guilty. We cannot say that the jury was wrong in so finding.

CONCLUSION

The search was constitutional, so the motion to suppress was properly denied. The defendant’s conviction and sentence are affirmed.

AFFIRMED.

CRAIN and LANIER, JJ., concur and assign reasons.

CRAIN, Judge,

concurring.

I fully subscribe to the result reached in this case. However, I do not subscribe to any implication that an invalid search may in and of itself taint a subsequent inculpa-tory statement.

Unfortunately, there exists jurisprudence that an invalid arrest may taint a confession obtained as a result of that arrest. State v. Burton, 416 So.2d 73 (La.1982); State v. Leatherwood, 411 So.2d 29 (La.1982). This is established in spite of the fact that there are ample safeguards to protect the giving of a statement separate and apart from the safeguards surrounding an arrest. A person is constitutionally guaranteed Miranda warnings before a statement is given, and additionally the law of this state requires that a statement be free and voluntary. La.R.S. 15:451. Length and circumstances of detention are pertinent facts in determining whether a statement is free and voluntary. State v. Neal, 321 So.2d 497 (La.1975); State v. Evans, 317 So.2d 168 (La.1975). This should be the basis for analysis of whether a statement is validly taken. The technical aspects of the validity of the arrest or detention should have nothing to do with it, although the cases cited above indicate that validity of the arrest has entered the picture. However, an inquiry as to the validity of a search and seizure to a subsequent statement has not yet been deemed necessary, and this case should not be construed as superimposing any such requirement.

LANIER, Judge,

concurring.

I concur with the result.

Leagea was stopped by Officer Maranto for committing the crime of operating a motor vehicle with an expired registration license plate. La.R.S. 14:7; La.R.S. 47:536; La.R.S. 32:51 and 57. When a person commits a crime in the presence of a police officer (as in the instant case), the officer may arrest him or may stop him and demand identification and an explanation of his actions. La.C.Cr.P. arts. 213 and 215.1. When a person is stopped for a traffic offense, special procedures are provided by law for what action a police officer may take. La.R.S. 32:391 and 411; Richard v. State, Department of Public Safety, 436 So.2d 1265 (La.App. 1st Cir.1983); Moss v. Maryland Casualty Company, 392 So.2d 772 (La.App. 3rd Cir.1980).

A well-established exception to the rule that a warrantless search is unreasonable is that a search may be conducted without a warrant when it is an incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The reasons for allowing such a search are to protect police officers by removing weapons that the person arrested might use to resist arrest and/or escape and to prevent the concealment or destruction of evidence. If the person arrested is in an automobile or has left the vehicle but remains in proximity to the vehicle, the scope of such a search extends to the passenger compartment of the vehicle. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Drott, 412 So.2d 984 (La.1982); CONTRA: State v. Hernandez, 410 So.2d 1381 (La.1982).

It has been held that stopping a person for a minor traffic offense is not an arrest and cannot authorize a search incident to an arrest. State v. Blanchard, 374 So.2d 1248 (La.1979); State v. Daigre, 364 So.2d 902 (La.1978); State v. Breaux, 329 So.2d 696 (La.1976); Cf. State v. Patton, 374 So.2d 1211 (La.1979). (None of these cases discussed the special procedures for traffic cases in La.R.S. 32:391 and 411 which authorize arrest as an alternative.) Even if stopping a person for a traffic offense is a less restrictive form of restraint than an arrest, the need to safeguard the security of the police officer in the performance of his duty would appear to be the same. Thus, when a police officer makes an investigatory stop of an automobile and observes a weapon from a place where he has a legal right to be, he may temporarily take possession of the weapon during the course of the investigation for his own protection. State v. Husband, 437 So.2d 269 (La.1983); State v. Cobb, 419 So.2d 1237 (La.1982); State v. Reed, 388 So.2d 776 (La.1980).

While following Leagea, Officer Maranto observed that he appeared to be putting something under the front seat of his vehicle. When Leagea exited his vehicle, he left the door open on the driver’s side. After Leagea walked to the rear of the vehicle, Officer Maranto went to the driver’s side of the vehicle to look in because of the movements he observed when following Leagea. While standing on the outside of the vehicle (a place where he had a legal right to be) Maranto observed a pistol on the floorboard. Maranto took possession of the weapon (a .38 caliber R.G. blue steel revolver, # 81-28324) and removed six live rounds of ammunition from its chambers. Maranto took the pistol and the bullets back to his unit and asked for a radio check to see if the gun was stolen or if Leagea was a convicted felon. It would not have been prudent for Maranto to leave the gun in the car while making the radio check from his unit when Leagea was in close proximity to the vehicle.

A strong argument can be made under the particular facts of this case that Leag-ea was under arrest when he was stopped by Maranto. However, whether Leagea was arrested or merely “detained” is not determinative. Maranto had a legal right to stop Leagea because he was committing a crime in Maranto’s presence. Maranto had a legal right to stand outside Leagea’s vehicle and look in through the open door. Maranto had a legal right to take temporary possession of the gun for his own protection during his investigation. Mar-anto gave Leagea a Miranda warning before questioning him about the gun. The statement given by Leagea was admissible in evidence.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Roger GONDAY.
    No. 83 KA 0379.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Brett Grayson, Asst. Dist. Atty., 19th Judicial District of Louisiana, Baton Rouge, for plaintiff-appellee.
    Lewis 0. Unglesby, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Roger Gonday was charged by grand jury indictment with manslaughter in violation of La.R.S. 14:31. He pled not guilty and waived his right to a jury trial. The trial court found him guilty as charged and sentenced him to be confined in the custody of the Department of Corrections for a term of five (5) years at hard labor without benefit of probation, parole or suspension of sentence, pursuant to La.R.S. 14:31 and La.C.Cr.P. art. 893.1. The trial court also sentenced him to serve a period of two years at hard labor without benefit of probation, parole or suspension of sentence or credit for good time, pursuant to La.R.S. 14:95.2. The two year sentence is to run consecutive to the five year sentence. Defendant lists eight assignments of error resulting from allegedly incorrect rulings by the trial court.

We reverse.

ASSIGNMENTS OF ERROR NUMBERS 1 and 8:

In . his first assignment of error, defendant contends that the trial court erred in failing to properly apply La.R.S. 14:18, 14:20, 14:21 and 14:22. Essentially, defendant argues that there was no evidence to enable the trial court to find that the state proved the homicide was not justified. Defendant claims the homicide was committed in defense of a third person. Defendant properly raised the no evidence question in a motion for new trial which asserted that the verdict was contrary to the law and the evidence. State v. Peoples, 383 So.2d 1006 (La.1980).

At approximately noon on November 2, 1981, defendant and Russell Williams were riding in defendant’s truck with defendant driving when another truck driven by the victim, Homer Martin, III, (Martin) struck defendant’s vehicle. Martin did not stop after the accident. Defendant made Martin stop by chasing him and forcing him off the road into a paved parking area in front of a business establishment named Ca-yard’s. After Martin stopped, defendant stopped his truck in the roadway to the left side of Martin’s truck. Williams exited defendant’s truck and walked up to the driver’s side of Martin’s truck.

The evidence at this point is from an alleged dying declaration of Martin admitted into evidence by the trial court. Martin stated he observed Gonday standing on the far side of his truck holding a shotgun instructing Williams to “make him turn the motor off.” Martin told Williams to “tell him to put that shotgun down.” Williams was again instructed to “get his keys”. Either Williams or defendant mentioned calling the police. At this point Martin reached for his glove compartment to get his gun because “no one’s getting my keys”. By the time Martin got his gun out and cocked it, defendant was at his door with the shotgun. Williams stepped aside and defendant shot Martin. Martin felt it necessary to get his gun for protection. He told them all they had to do was put their gun up — that he wasn’t going anywhere. Until Martin reached for his gun, defendant was standing with the butt of the shotgun resting on defendant’s truck. Defendant did not point the shotgun until after Martin reached for his gun. Martin got his gun when he felt Williams was going to get the keys to his truck.

Even though the testimony of independent witnesses conflicts with Martin’s statement, in some instances the physical evidence conflicts with the statement, and there is serious question as to the admissibility of the statement; we use it because in our opinion even the statement produces no evidence to support the conviction.

Clearly, Martin’s main concern was not that he was in physical danger from defendant or Williams because he specifically stated that he had not been threatened with the shotgun when he reached for his own gun. He got his gun because he was not going to let anyone get his keys.

On the other hand, defendant saw Martin get his gun and we know from Martin’s own statement that he cocked it. Actually, the evidence is much stronger that not only did he cock it, but he tried to fire it and it jammed. The policeman who retrieved the gun testified a bullet had wedged in the chamber causing the gun to jam. Martin told his son at the scene of the incident after he had been shot that “my gun jammed and I put it on the seat.” Martin obviously tried to use the gun. By his own statement he cocked it, and defendant at least knew this much.

“It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means-himself, and when it is reasonably believed that such intervention is necessary to protect the other person.” La. R.S. 14:22. However, “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21.

Martin’s statement makes it obvious that the defendant reasonably believed Martin was about to shoot the unarmed Williams when Martin got his gun from the glove compartment and cocked it. The only question is whether defendant can use “defense of another” to justify his killing of Martin or whether he is prohibited from doing so by the aggressor doctrine. La. R.S. 14:21.

Not every act of a defendant will make him an aggressor. It is the character of the act coupled with the intent of the defendant that determines whether the defendant is the aggressor. State v. Coll, 146 La. 597, 83 So. 844 (1919).

The act of aggression which would thereafter preclude asserting the right of self-defense must be such that the response elicited from the victim by the aggressive act can be termed a reasonable response to that act. If a defendant curses a victim and the victim pulls a gun to kill the defendant certainly the defendant is not precluded by the original aggressive act of cursing from killing the victim in order to save his own life. Under these circumstances the victim’s response to the aggressive act would be unreasonable.

Although the character of defendant’s act in chasing Martin and stopping him after the accident might make him an aggressor for some victim response, Martin knew and admitted knowledge of the fact that the defendant and Williams’ intent was to stop him and keep him stopped until the accident could be reported to the police. Martin admitted such when he stated he told them he was not going anywhere. But when Williams and the defendant chose not to believe him because of the prior circumstances and wanted his keys, he was absolutely adamant that if necessary he would kill rather than allow anyone to take his keys. His concern was not over his physical well-being but his keys. Consequently, he knew defendant’s intention and the character of his acts was not a reasonable response to the aggressive action taken towards him. We hold that under these circumstances, which are supported by the only evidence in the record, neither defendant nor Williams were aggressors which would preclude defendant from taking the necessary action to save Williams’ life.

We note that although we are required to review the record for sufficient evidence, this record contains no evidence that would support the conviction for manslaughter. Consequently, we reverse the conviction and order defendant released.

REVERSED AND RENDERED.

      . Because of our holding on assignments of error 1 and 8 we do not address the remaining assignments of error.

      . La.C.Cr.P. art. 821 sets the standard of review where the sufficiency of the evidence is at issue. Accordingly, the principles of appellate review as stated by this court in State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983), are applicable where the question is sufficiency of the evidence. No evidence is still properly raised by a motion for new trial. Although not at issue here we note that since the legislature has established fact review of sufficiency of the evidence through the procedural vehicle of a motion for acquittal, a failure to file the motion could waive defendant’s right to review of sufficiency of the evidence, unlike no evidence review which is a question of law.

      . Martin was shot on November 2, 1981. He died from the gunshot wound fourteen days later. On November 7, 1981, the police took a statement from Martin in the hospital. The foundation laid for taking the statement was a Miranda foundation. There are serious questions as to the admissibility of this statement as a dying declaration. However, because of the result we reach we consider it because it is the only evidence which could possibly be construed to support a conviction.

      . The Civil law clearly supports this proposition. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Mut v. Roy, 185 So.2d 639 (La.App. 1st Cir.1966); Oakes v. H. Weil Baking Co., 174 La. 770, 141 So. 456 (1932).

      . This case cannot be analyzed as one involving an aggressor who has withdrawn from the conflict, because the victim did not give Williams or Gonday the opportunity to withdraw. La.R.S. 14:21. However, if Williams is considered the sole aggressor there is no question of his attempt to withdraw since the testimony of all witnesses is that he put his hands in the air and started backing away as soon as Martin went for his gun.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Penny Ann SINGLETARY.
    No. 83 KA 0392.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Ossie B. Brown, Dist. Atty., 19th Judicial Dist. of La. by Brett Grayson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    James J. Zito, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Penny Ann Singletary, was charged with possession of marijuana with intent to distribute in violation of La. R.S. 40:966(A)(1). Singletary filed a motion to suppress the marijuana in the possession of the state alleging an illegal search and seizure. After a hearing, the trial court denied this motion. Singletary then entered a plea of guilty conditioned on a reservation of the right to appellate review of the trial court’s ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). Singletary was sentenced to serve two years at hard labor in the custody of the Louisiana Department of Corrections, to pay a fine of $1,000, to pay victim reparation cost of $50 and to pay all court costs. The sentence of two years at hard labor was suspended and Singletary was placed on supervised probation for two years with the following special conditions:

(1) submit to substance abuse evaluation and receive such treatment found necessary at her own expense;
(2) remain gainfully employed; and
(3) have no association with Jimmy Le-Blanc.

Singletary was granted six months to pay her fine, victim reparation cost and court costs and in default thereof she was sentenced to serve one year in the East Baton Rouge Parish Prison. La.C.Cr.P. art. 884. This appeal followed.

FACTS

On March 11,1982, at approximately 3:00 P.M., Don Johnson negotiated a purchase from Singletary of one pound of sansemilla (high grade) marijuana for $1,100. The transaction was to be consummated at 9:30 P.M. at a shopping center located on Staring Lane in East Baton Rouge Parish, Louisiana.

At approximately 7:30 P.M. on March 11, 1982, Johnson contacted Sergeant Sam Pruet of the Baton Rouge City Police Department Narcotics Division and advised him of the pending transaction with Single-tary. Pruet had worked with Johnson on four previous occasions which resulted in an unspecified number of arrests and the seizure of drugs. Officer Lee Lester Floyd of the Baton Rouge City Police Department Narcotics Division was assigned to go with Johnson for the rendezvous with Single-tary. Pruet and Officer McMillon (first name not given) would provide additional surveillance. Johnson advised that Single-tary would be in a gold Cadillac.

On March 11, 1982, at 9:30 P.M., a gold Cadillac arrived in the parking lot of the designated shopping center and was observed by Johnson and the police officers. Singletary and Johnson got out of their vehicles and had a short conversation. Johnson got in the Cadillac with Singletary and drove off a short distance. Johnson then exited the Cadillac and returned to the vehicle where Floyd was located and advised that “... yes, I’ve seen it. It is there.” Johnson further advised that the marijuana was in a brown paper bag. After Johnson indicated that the marijuana was in the Cadillac, by prearranged plan, the officers converged on that vehicle, arrested Singletary and seized the marijuana which was located in a plastic bag inside of a brown paper bag found on the front seat floorboard of the car.

WARRANTLESS SEARCH OF VEHICLE

The law applicable in the instant case is succinctly set forth in State v. Denton, 387 So.2d 578, 582 (La.1980), as follows:

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable under the fourth amendment, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gordon, 332 So.2d 262 (La.1976). One of these exceptions is the so-called “automobile exception.” This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Spencer, supra; State v. Gordon, supra....

Singletary contends that exigent circumstances did not exist in the instant case because the delay between the time that Johnson negotiated the drug transaction with Singletary and the time that the search was conducted was sufficient to allow the officers to secure a search warrant, citing State v. Colvin, 358 So.2d 1250 (La.1978). Although Johnson negotiated with Singletary at 3:00 P.M., the record does not reflect that he is a police officer and he did not advise Sergeant Pruet of the transaction until 7:30 P.M. The police officers were only aware of the pending transaction for two hours prior to its occurrence. In advance of the transaction, the police officers determined not to take action until Johnson verified that the drugs were in Singletary’s vehicle. This is a reasonable action for the police to take in verifying the existence of probable cause. State v. Elliot, 407 So.2d 659 (La.1981). The record does not reflect that the police officers dt liberately extended their investigation to circumvent the necessity for a warrant or for any other improper motive. State v. Cunningham, 412 So.2d 1329 (La.1982); State v. Littleton, 407 So.2d 1208 (La.1981); State v. Hearn, 340 So.2d 1365 (La.1976); State v. Tant, 287 So.2d 458 (La.1973); United States v. Weinrich, 586 F.2d 481 (5th Cir.1978). Singletary cannot prevail on this argument.

Singletary next contends that the police were required to obtain a warrant in the instant case because the marijuana was located in a closed container (brown paper bag) in her vehicle, citing Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and State v. Michael Hernandez, 410 So.2d 1381 (La.1982). The holding in Robbins was rejected by the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982) with the following language:

Our decision today is inconsistent with the disposition in Robbins v. California and with the portion of the opinion in Arkansas v. Sanders [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)] on which the plurality in Robbins relied. Nevertheless, the doctrine of stare deci-sis does not preclude this action. Although we have rejected some of the reasoning in Sanders, we adhere to our holding in that case; although we reject the precise holding in Robbins, there was no Court opinion supporting a single rationale for its judgment and the reasoning we adopt today was not presented by the parties in that ease....

The Ross case is factually similar to the instant ease. An informant previously proven to be reliable telephoned the police and advised that an individual known as “Bandit” was selling narcotics kept in the trunk of a car parked at a specific address. The informant advised that he observed “Bandit” complete a sale and that “Bandit” told him that additional narcotics were in the trunk. The informant gave the police a detailed description of “Bandit” and his vehicle. The police immediately drove to the area and found the described vehicle at the address given. A license check of the vehicle disclosed that the car was registered to the defendant, Albert Ross. A computer check on Ross revealed that he fit the informant’s description and used the alias “Bandit”. Ross was not observed in the vicinity of the vehicle and the police left the area for a few minutes and returned. Upon returning, they observed the vehicle leaving its location. They pulled up along side the vehicle and observed that the driver matched the informant’s description. The officers stopped the car and the driver was told to get out of the vehicle. One of the officers discovered a bullet in the front seat, searched the interior of the car and found a pistol in the glove compartment. Ross was arrested and handcuffed. The police officers then took Ross’ keys and opened the trunk where they found a closed brown paper bag. The officer opened the bag and discovered a number of glassine bags containing a white powder which was subsequently identified as heroin. The United States Supreme Court ruled that the search and seizure were legal with the following language found at page 2172 of the Supreme Court Reporter:

The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found....
... If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

The instant case is also similar to State v. Nieto, 395 So.2d 733 (La.1981). In Nie-to, a reliable confidential informant called the police and advised that he had overheard a conversation and learned that a subject named Alfred would arrive at a certain address at 8:00 or 8:30 P.M. to purchase 500 quaalude tablets. The police pioceeded to the address and commenced surveillance. At approximately 8:05 P.M., a white sedan arrived in the front of the residence and an individual left the vehicle and entered the house. While the person was in the house, the police checked the vehicle’s registration and learned that it was registered to Alfred Nieto. At 9:15 P.M., Nieto, who had arrived empty-handed, exited the residence carrying a red and white plastic bag which concealed its contents from the officers and drove off. The police officers followed Nieto’s car and subsequently stopped the vehicle and arrested Nieto. The officers then entered the car, removed the bag and, upon opening it, discovered five clear plastic bags inside, each containing 100 quaalude tablets. The Louisiana Supreme Court determined that the police officers had probable cause to arrest Nieto and that they also had probable cause and exigent circumstances justifying a warrantless search of the bag located in the vehicle. See also State v. Jimmy Lee Hernandez, 408 So.2d 911 (La.1981).

SEARCH INCIDENT TO LAWFUL ARREST

A second well-established exception to the rule that a warrantless search is unreasonable is that a search may be conducted without a warrant when it is an incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In the instant case, the arrest of Singletary and the search of the vehicle and seizure of the marijuana were almost simultaneous. The police converged upon the Cadillac while both the defendant and the drugs were in the vehicle. In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981), the United States Supreme Court defined the extent of a search incident to the arrest of the occupant of an automobile as follows:

... Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach. ... (Footnotes 2 and 3 omitted).

The Michael Hernandez case is factually distinguishable from the instant case. He was arrested for DWI and reckless operation of a motor vehicle as he alighted from his car parked in the driveway of his home. The arresting officers did not have probable cause to believe that contraband was in the vehicle. As the two arresting officers were leaving the premises with Michael Hernandez, a third officer drove up. Michael Hernandez stated that he did not want anyone to drive his car. Nevertheless, in accordance with what the officers said was their policy, a wrecker was ordered by radio to tow the car away. While waiting, the third officer went back onto Hernandez’s property upon which the car was parked and inspected its interior. During this inspection, he discovered two marijuana cigarettes on the left floorboard. The Louisiana Supreme Court determined that this was not a search incident to an arrest because it did not commence until after the defendant was arrested, handcuffed and taken to the police station. Since the police had no probable cause to believe that contraband was in the vehicle, it could not be justified under the automobile exception. In this factual posture, the court ruled that the search and seizure was illegal.

CONCLUSION

The search in the instant case is valid as a search of a vehicle for specified contraband with probable cause and under exigent circumstances and as a search incident to the arrest of Singletary, an occupant of the vehicle. Singletary’s conviction and sentence are affirmed.

AFFIRMED.

      . This case was previously before this court in State v. Singletary, 428 So.2d 965 (La.App. 1st Cir.1983).

      . The police considered Johnson a confidential informant, but his identity was revealed at the hearing on the motion to suppress.

      . Singletary does not contest the probable cause of the officers to search and/or arrest.

       "Container” here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.


text:
    STATE of Louisiana v. Jacqueline RICHARD. STATE of Louisiana v. Jacqueline RICHARD.
    Nos. 83KA0408, 83KA0409.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie B. Brown, Dist. Atty., Glen R. Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On January 21, 1982, Jacqueline Richard (defendant) was charged by bill of information with (1) one count of misdemeanor theft, a violation of La.R.S. 14:67, and (2) one count of contributing to the delinquency of a minor, a violation of La.R.S. 14:92. Earlier, on December 15, 1981, defendant had been charged with another count of theft. She pled guilty. After a hearing she was sentenced to serve six months in the Parish prison on each of the three charges. The sentences for the theft charges were ordered to be served concurrently with each other and consecutively with the contributing charge. She has appealed. Her only assignment of error alleges that the sentences imposed are excessive.

The trial court has wide discretion in the imposition of sentences. After compliance with the sentencing criteria of La.C. Cr.P. 894.1, its sentence will not be set aside in the absence of manifest abuse of discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983), writ denied, 434 So.2d 410 (La.1983).

Defendant alleges that the record does not indicate that the trial court adequately considered the hardship which would be imposed on defendant’s family if she were not available to assist her father who was on a dialysis machine and to care for a minor niece who resided in her father’s house. We note that evidence of these mitigating factors was introduced at the sentencing hearing. When the trial court recited some of the La.C.Cr.P. 894.1 factors, like defendant’s lengthy criminal history and the risk that she might commit another crime, a factual basis for the sentence was established. Therefore, it was not necessary to enumerate each factor under the article. State v. Mott, 409 So.2d 263 (La.1982); State v. Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).

The court noted defendant’s extensive criminal history and the fact that an unsupervised probation had previously been terminated unsatisfactorily when it imposed this sentence. Defendant had previously been convicted of misdemeanor theft on July 3, 1978, and April 3, 1981. This sentence of six months in the Parish prison was not excessive in light of defendant’s prior convictions for the same offenses.

With respect to the six-month sentence imposed on the charge of contributing to the delinquency of a minor, we find no abuse of discretion. Defendant used her sixteen-year-old brother as a lookout while she committed the theft in question. This type of conduct must be discouraged.

We note that the December 15, 1981 bill of information charged defendant with “theft (a misdemeanor) (5th offense).” This was an improper method of billing if the State intended to charge defendant as a La.R.S. 14:67 multiple offender. The bill should have included the charges that defendant had been convicted of previously. La.C.Cr.P. art. 483; State v. Cannon, 409 So.2d 568 (La.1982); State v. Bouzigard, 286 So.2d 633 (La.1973). We must treat the charge as a misdemeanor theft. The December 15 and January 21 bills were never consolidated for trial or for sentencing. We consolidated the appeals only for the sake of judicial economy. Defendant had no right to a jury trial for misdemean- or theft and thus had no right to an appeal. La. Const, art. V, § 10(A); La.C.Cr.P. 912.-1; State ex rel. Johnson v. McGougan, 433 So.2d 827 (La.App. 1st Cir.1983). Her only remedy would have been by writ of review.

For these reasons, defendant’s sentences in No. 83KA0408 are affirmed, and her appeal in No. 83KA0409 is dismissed.

AFFIRMED IN PART, APPEAL DISMISSED IN PART.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Earl MERRELL, Jr.
    No. 83 KA 0416.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie B. Brown, Dist. Atty., Louis Daniel, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnny E. Wellons, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Earl Merrell, Jr., appeals his conviction for simply burglary of an inhabited dwelling in violation of L.S.A.-R.S. 14:62.2. On appeal, he contends that the trial court erred in: (1) denying defendant’s post-verdict judgment of acquittal on the grounds that the State failed to prove the intent to commit a felony or theft beyond a reasonable doubt, (2) denying defendant’s motion for clarification of the number of jurors necessary to render a verdict, (3) failing to overturn defendant’s conviction based on failure to prove specific intent, (4) failing to require the State to prove all the elements of the crime beyond a reasonable doubt, and (5) denying defense counsel’s motion for a mistrial when defense counsel was informed by one juror that he would have voted for acquittal if he had known the jury could return a verdict with less than 10 jurors in agreement.

Assignments of error Nos. 1, 3, and 4 raise the sufficiency of the evidence supporting defendant’s conviction, whereas assignments of error Nos. 2 and 5 complain of the court’s instructions regarding the number of jurors necessary to concur in rendering a verdict. We reverse, finding that the State has failed to prove an essential element of the crime. As such, we need not address defendant’s assignments of error Nos. 2 and 5.

Defendant specifically argues that the State failed to prove that he had the intent to commit a felony or theft therein upon entering the dwelling. The State argues that this intent can be inferred from the defendant’s mere presence in the home.

This court, in reviewing a conviction based upon circumstantial evidence, must consider two standards. First, a conviction cannot stand unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved 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); and State v. Graham, 422 So.2d 123 (La.1982). Secondly, in order to support a conviction based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. L.S.A.-R.S. 15:438; and State v. Ricks, 428 So.2d 794 (La.1983).

In this instance, specific intent (i.e., “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act,” L.S.A.-R.S. 14:10) is required. See State v. Anderson, On rehearing, 343 So.2d 135 (La.1976). At trial, no actual evidence of intent was introduced. However, intent need not be proven as a fact, but may be inferred from the circumstances surrounding the commission of the crime. L.S.A.R.S. 15:445; State v. Staton, 433 So.2d 222 (La.App. 1st Cir.1983). Further, the State may rely on such circumstantial evidence to prove the intent element of the crime. State v. Custard, 384 So.2d 428 (La.1980).

Here, the record reflects that the defendant spent approximately 15-30 seconds in the victim’s home, walking about the first floor. It also reflects that the defendant did not have in his possession any weapons or tools with which he cc uld effect a burglary. Having been discovered and followed, defendant did not run but rather wandered away. As such, a possible reasonable hypothesis could be that the defendant was merely wandering. Such hypothesis was never excluded by the State. The State, in failing to exclude every reasonable hypothesis of innocence, has failed to prove an essential element of the crime, more particularly, specific intent.

For the above and foregoing reasons, defendant’s conviction is hereby reversed.

REVERSED.

COLE, J., respectfully dissents.

      . 62.2. Simple burglary of an inhabited dwelling
      "Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
      "Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.”

      . Assignments of error three and four have no legal basis. In assignment number three, defendant submits that the court erred in not overturning and reversing defendant’s conviction for failure to prove specific intent. The trial court is not empowered to accept or reject a jury verdict which is correct as to form and which meets procedural requirements. La. Const, art. 1, § 17; L.S.A.-C.Cr.P. arts. 809-820; and State v. Parker, 431 So.2d 114 (La.App. 1st Cir.1983). In assignment number four, defendant submits that the court erred in failing to require the State to prove all essential elements of the crime beyond a reasonable doubt. The trial court cannot direct a verdict in a jury case. See L.S.A.-C.Cr.P. art. 778. Further, the court does not control the State’s presentation of evidence.

      . Such wandering may, in the instant case, constitute the crime of criminal trespass. L.S.A.R.S. 14:63. However, criminal trespass is not a responsive verdict to a charge of simple burglary. See L.S.A.-C.Cr.P. arts. 814-15.


author: COLE, Judge.

text:
    STATE of Louisiana v. Jessie BELL.
    No. 83 KA 0432.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie B. Brown, Dist. Atty., Ralph Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Joel B. Dickinson, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Defendant Jessie Bell appeals his conviction of second degree murder.

The facts are as follows. At approximately 11:00 P.M. on August 12, 1980, defendant visited a friend, Robert Moore, at Moore’s home. Also present were Garland Jackson, who resided with Moore, and the victim, Joe Russell. The four men were in the front of the house where Moore slept. A television set was operating which provided illumination for the area. Defendant left Moore’s house and returned after several minutes. At that point the victim, Russell, said, “I better get the hell out of here before some stuff starts,” or words to that effect. Upon making this statement he struck defendant with his fist. A fight ensued between them causing the cord of the television set to be pulled from the wall, leaving the area in almost complete darkness. The scuffle continued until defendant left the house. When Moore turned the lights on he found Russell’s body laying across a couch, with multiple stab wounds. Authorities were called and when they arrived Russell was pronounced dead. A large kitchen knife with a 12-inch blade was found in the front yard of Moore’s house. The knife was tested by the State Police forensic lab and was found to contain the same type blood (type "B”) as Joe Russell’s blood. In addition, Russell’s blood was found to contain 0.36 per cent alcohol at the time of his death.

Approximately one hour later, defendant, who appeared to be intoxicated, was arrested. He was later indicted by the grand jury with second degree murder in violation of La.R.S. 14:30.1. He pleaded not guilty and was tried by a twelve person jury, which found him guilty as charged. He was sentenced by the trial court to be confined by the Department of Corrections for life, without benefit of probation, parole or suspension of sentence. Defendant assigns five errors.

Initially, we note the first four assignments of error allege there was insufficient evidence to convict defendant of second degree murder. At the time of this trial, the proper procedure for raising the issue of insufficient evidence was to move for a post verdict judgment of acquittal, the granting of which is reviewable by this court upon application of the State. La. Code Crim.P. art. 821. Or, defendant could have moved for a new trial under article 851(5), allowing the trial court to consider the weight of the evidence, the granting or denial of which is not subject to review by the appellate courts. La. Const, art. V, § 10(B); La.Code Crim.P. art. 858. For a complete procedural analysis, with the attendant standards of review, see State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

No motion for post verdict judgment of acquittal or for a new trial was made by the defendant. However, it was held in State v. Washington, 421 So.2d 887 (La.1982), a reviewing court, in spite of defendant’s failure to proceed properly, must consider the evidence to determine whether or not it meets the constitutional standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), now codified in La.Code Crim.P. art. 821.

Under Jackson, supra, before the reviewing court may reverse a verdict of guilty the court is required to consider the evidence in the light most favorable to the prosecution. It must then be convinced no rational finder of fact could have found the state proved the essential elements of the crime beyond a reasonable doubt. For the reasons set forth below as we discuss each assignment of error, we conclude the constitutional standards of Jackson v. Virginia, supra, (La.Code Crim.P. art. 821), have been satisfied.

ASSIGNMENT OF ERROR NUMBER ONE

Appellant argues the court erred in not setting aside the jury verdict of “guilty of second degree murder” because the evidence showed the victim provoked the fight by striking defendant without justification.

Apparently, the gist of this argument is the homicide was justified because it was done in self defense. Although there is some doubt as to defendant’s right to raise the issue of self-defense at this time, in order to protect defendant’s rights, we will address this issue.

A justifiable homicide is defined in La.R.S. 14:20(1) as one “... committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger....” It was proven beyond a reasonable doubt defendant used a knife to stab the victim in excess of ten times, with at least six of the stab wounds to the victim’s back and the back of his arms. The victim was extremely intoxicated at the time of the fight, with a blood alcohol content of 0.36 per cent. Even assuming the victim pulled the knife, we are convinced defendant could have defended himself by less drastic measures. In short, his actions (of repeatedly stabbing the victim in the back) were not necessary to save himself from any perceived danger. Therefore we find no merit in this assignment of error.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

Although worded differently, the gist of these three assignments is the jury erred in finding' defendant guilty of second degree murder because there was no proof of specific intent to kill or inflict great bodily harm; and, alternatively, the most serious crime of which defendant could have been convicted was manslaughter, because the crime was committed in the heat of passion provoked by the misconduct of the victim.

Second degree murder is defined by La. R.S. 14:30.1(1) as follows:

“Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; ...”

Specific criminal intent is defined by La. R.S. 14:10(1) as follows:

“Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Using this definition, we have no difficulty in concluding the defendant, by stabbing the victim at least ten times, actively desired the criminal consequences (the death of the victim) to follow his actions. There can be no other explanation for the multiplicity of stab wounds inflicted upon an excessively intoxicated man. Although it was not proven which party pulled the knife, we note this factor is not essential to proving defendant had a specific intent to kill. Regardless of which party initially produced the knife, it is apparent that from the moment the defendant decided to use the knife, his purpose was to kill or inflict great bodily harm upon the victim.

Defendant contends the evidence at most supported a conviction of manslaughter because the crime was committed in the heat of passion. Manslaughter is defined by La.R.S. 14:31 as follows:

“Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; ...” (Emphasis added.)

We find no provocation sufficient to deprive an average person of his self-control. An extremely intoxicated and not visibly armed man 'struck defendant, using only his fist. There was no evidence of previous “bad blood,” threats, or any other circumstances that would increase the significance of the simple act of striking. We cannot conclude an average person would be so inflamed by the strike as to lose his self control and cool reflection in the way this defendant did.

For these reasons, we find these assignments of error to be without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends the victim’s long record of unprovoked assaults with a dangerous weapon, particularly with a knife, should have been presented to the jury.

There was some evidence related to this matter introduced at trial. Robert Moore testified the victim had a reputation for carrying and using a knife. Beyond this, there was no attempt by defendant to introduce any further evidence. Under Code Crim.P. art. 841 the defendant cannot object to an “irregularity or error” after the verdict unless it was objected to at the time of occurrence. Therefore, this assignment of error is without merit.

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

AFFIRMED.

SAVOIE, J., concurs in the result.

      . Both witnesses, Robert Moore and Garland Jackson, testified they did not see either the victim or the defendant with a knife.

      . This is not a circumstantial evidence case. The crucial fact, i.e., the defendant was the killer, is not at issue. Accordingly, we need not concern ourselves with the applicability of an additional standard of review. Cf., State v. Graham, 422 So.2d 123 (La.1982), rehearing denied 1982. See also State v. Korman, supra, noting especially footnote 3 therein.

      . When an assertion of self-defense is made the State has the burden to refute it. State v. Brown, 414 So.2d 726 (La.1982), rehearing denied 1982. However the portions of the record transcribed show self-defense was raised by the defense for the first time in closing arguments. Obviously the state had no opportunity to refute the defense at this point.

      . In State v. Boyer, 406 So.2d 143 (La.1981) it was held specific criminal intent is a state of mind which need not be proved as a fact. Instead, it may be inferred from the circumstances of the transaction and the actions of defendant. In Boyer, the court inferred a specific intent to kill from the fact that defendant shot the victim in the head at close range. The same intent can be inferred from the facts of the present case.


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Michael J. JOHNSON (Michael Jerome Johnson).
    No. 83 KA 0434.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie Brown, Dist. Atty. by Glen R. Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Gail Ray, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Michael J. Johnson, was charged by Bill of Information with the crime of simple burglary in violation of LSA-R.S. 14:62, arising from an incident involving the breaking and entering of and the taking of property from Nicholson Elementary School in Baton Rouge, Louisiana, on April 24, 1982. He was convicted of the crime with which he was charged after a trial by jury. The trial judge sentenced Johnson to six years at hard labor with credit for time served. It is from this conviction and sentence that the defendant has appealed, complaining that the trial court erred when it accepted a verdict based on insufficient evidence, and that it imposed an excessive sentence.

SUFFICIENCY OF EVIDENCE

In this assignment of error, the defendant contends that no reasonable trier of fact could have found that the State proved the element of intent beyond a reasonable doubt. It is the defense’s position that Johnson intended only to commit simple damages to property, a misdemeanor.

In the early morning hours of April 24, 1982, a security officer for the East Baton Rouge Parish School Board was dispatched to Nicholson Elementary School. Upon arrival, he heard noises coming from one of the “T” buildings in the back and saw that windows had been broken in two of the buildings. The guard observed the intruder and ordered him to stop. At the entrance of the building, the guard found two alarm system speakers by the door and a brown paper bag containing cassette tapes. Desk drawers in the buildings had also been ransacked. Within a few minutes, the police, who had also been summoned, arrived at the scene and arrested the defendant.

Defendant asserts that he had no intent to steal anything, but rather, that he felt “like walking the school campus to tear up something ...” Defendant argues that there may be proof of intent to vandalize but not to steal.

The State argues that the fact that the two speakers, which defendant admits he removed from the wall, were placed by the door next to the bag of tapes shows that Johnson intended to take the speakers.

Proof of specific intent to commit a felony or a theft is a necessary element of the crime of simple burglary. LSA-R.S. 14:62, State v. Pike, 426 So.2d 1329 (La.1983).

Specific criminal intent is defined as: ... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1).

Although the question of intent is a fact question, it need not be proved as a fact; it may be inferred from the circumstances of the transactions, or circumstances surrounding the commission of the crime. Consequently, the State may rely on the circumstantial evidence to prove this element. LSA-R.S. 15:445; State v. Fuller, 414 So.2d 306 (La.1982).

When the issue of whether there is sufficient evidence to support the verdict is raised, the reviewing court scrutinizes the evidence in light of the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The facts proved here reveal that defendant intended to steal the speakers. The security guard testified that each of the “T” buildings broken into had a speaker in it. Those two speakers were found next to the door of one of the buildings, near the bag of tapes. The evidence shows that Johnson had removed one speaker from one building and placed it with the other speaker near the door in the other building.

In summary, the evidence introduced shows convincingly that the defendant in fact intended to commit a theft; and from the testimony of the security guard and the police officer, it is established that the speakers were in fact near the doorway with the cassette tapes, and that defendant was in the act of misappropriating the speakers to his own use when he was thwarted by the security guard. It is rational to surmise from the facts that the defendant entered the building with the requisite intent to commit a theft.

The defendant’s assignment of error is without merit.

EXCESSIVE SENTENCE

The defendant further urges that the trial court erred in imposing an excessive sentence.

Article I, Section 20 of the Louisiana Constitution of 1974 provides that no law shall subject a person to “... cruel, excessive, or unusual punishment.”

Excessive punishment in Louisiana has been defined by Louisiana courts, as e.g., State v. Crook, 253 La. 961, 221 So.2d 473, 476 (1969), as that which is:

... [bjarbarous [,] extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men.

In determining whether a penalty is grossly disproportionate, the reviewing court should consider the punishment and the crime in light of the harm caused to society and determine whether the penalty is so disproportionate as to shock the sense of justice. State v. Reed, 409 So.2d 266 (La.1982).

The trial court has wide discretion in imposition of sentence within statutory limits, and a sentence imposed should not be set aside as excessive in absence of manifest abuse of discretion.

. LSA-C.Cr.P. art. 894.1 sets forth guidelines to follow in imposing sentence and mandates that the trial court state for the record the considerations taken into account and the factual basis for his conclusions in order to assure that each sentence is individualized to the offender as well as the offense. Some of the factors to be considered include the accused’s personal history, prior criminal record, the seriousness of the offense, the likelihood that another crime will be committed, and the potential for rehabilitation. State v. Trahan, 412 So.2d 1294 (La.1982).

In State v. Cox, 369 So.2d 118, 121 (La.1979), the Supreme Court enunciated its policy in reviewing sentences on the ground of exeessiveness:

... [The Court] may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.

Moreover, the Court held in State v. Brown, 395 So.2d 1301 (La.1981), that a sentence must be grossly out of proportion to the crime before the appellate court will vacate and remand for resentencing. The trial judge has wide discretion in the imposition of sentence, given compliance with Article 894.1, and the sentence imposed will not be set aside in the absence of manifest abuse of discretion. State v. Feeback, 414 So.2d 1229 (La.1982).

The record reflects that the trial judge did not abuse his discretion in sentencing the defendant. He listed the factors which he considered in the sentencing:

... In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the Court cites that confinement is appropriate because as a juvenile the defendant was committed to L.T.I. on September 13, 1978, from the 18th Judicial District Court for five counts of simple burglary. He was subsequently paroled from L.T.I. on April 2, 1979, to the custody of his mother. The records of the East Baton Rouge Parish Family Court Center show that the defendant after being released from L.T.I. and only three months later was rearrested by the Baton Rouge Police Department on July 29, 1979, and charged with two counts of burglary and theft. The record does not reflect a disposition on those charges. Insofar as crimes against the person, the defendant was arrested on June 11, 1981, by the Baton Rouge Police Department and charged with aggravated battery and simple battery on a police officer. The defendant received, according to this presentence investigation report, on the charge of aggravated battery a sentence of twenty days in the Parish Prison, credit for time served, also twenty days for the simple battery charge. Also, he was given credit for time served. The records further reflect that as an adult the defendant was arrested on May 7, 1980, by the Baton Rouge Police Department and charged with two counts of simple burglary. He was subsequently convicted on one count of simple burglary in the 19th Judicial Court and was sentenced to three years at hard labor in the Department of Corrections. That sentence was suspended and he was placed on five years supervised probation. And, therefore, it is noted that the defendant committed the instant offense while he was on supervised probation. In addition, the defendant had another arrest on June 11, 1981, for aggravated battery and simple battery on a police officer. This offense occurred when the defendant threw a bottle at his girlfriend which missed and struck his sister who was four years old. It struck the girl in the arm causing an extensive cut on her arm for which she had to have two operations as a result of the incident. The defendant also had an incident during his period of probation for which he was not arrested but is alleged to have stabbed a young lady with whom he was living at the time. The young lady had to be hospitalized for approximately two weeks and according, to her social worker, this was not the first time that the defendant had physically abused the girl. Also, with respect to his probation, the defendant moved during the period of probation without notifying his probation officer and refused to accept the probation officer’s help in getting him vocational rehabilitation or job training. The Court notes for the record that the pattern of violations that the defendant has established not only as a juvenile but as an adult plus his classification as a second felony offender indicates that any lesser sentence would deprecate the seriousness of the crime.

We hold that the trial judge was within his discretion in sentencing the defendant to six years imprisonment under the circumstances of this case. The judge properly used the criteria as set forth in Article 894.1 of the Louisiana Code of Criminal Procedure. Specifically, the trial judge referred to the defendant’s prior arrests, including a 1980 conviction for simple burglary, and further stated that the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. Due to the nature of the present offense and all of the factors considered, a lesser sentence would tend to diminish the seriousness of the crime. The maximum penalty allowable by law for a conviction of simple burglary is a fine and imprisonment for twelve years. LSA-R.S. 14:62. The imposition of one-half of the maximum prison sentence allowable is not excessive under the circumstances.

The trial judge need not articulate every aggravating and mitigating circumstance recited in LSA-C.Cr.P. art. 894.1, provided the record reflects that the trial judge adequately considered these guidelines in particularizing the sentence to the defendant and to his conduct. State v. Trahan. It is clear from the record of the instant case that the jury found the defendant guilty of simple burglary. The judge was justified in taking the defendant’s pri- or criminal record and any mitigating circumstances into consideration in imposing sentence. Therefore, the sentence, which was in the middle of the statutory range (showing that the mitigating factors were given due weight), was within the discretion of the trial judge and not excessive when considering all of the factors involved. In the instant case, the sentence is neither apparently severe nor grossly out of proportion to the crime.

The assignment of error is without merit.

DECREE

For the foregoing reasons, defendant’s conviction and sentence which are the subjects of this appeal are affirmed.

AFFIRMED.

      . Two other assignments of error were not briefed and are, therefore, considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Freddie BUTLER.
    No. 83 KA 0454.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Alfred Zach Butterworth, Asst. Dist. Atty., St. Francisville, for plaintiff.
    Clayton M. Perkins, Jr., St. Francisville, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, an inmate at the Louisiana State Penitentiary, was charged with aggravated battery in violation of La.R.S. 14:34. After a six-man jury found the defendant guilty, the trial judge sentenced him to serve five .years at hard labor, to run consecutively with any sentence the defendant was then serving.

Defendant’s only assignment of error alleges that the evidence introduced did not support the jury’s guilty verdict.

Although there was no motion for new trial or acquittal filed, we will consider the evidence to determine whether it meets constitutional standards. State v. Washington, 421 So.2d 887 (La.1982); State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983).

The scope of appellate review for the sufficiency of the evidence is whether, 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence consisted of the testimony of the injured person and two eyewitnesses for the State and that of the defendant for himself. The stories were widely divergent and the jury had to make credibility decisions. They evidently believed the testimony of the State’s witnesses. We find no error. A rational trier of fact could have found defendant guilty beyond a reasonable doubt, accepting facts most favorable to the State.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.