author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Billy Ray FORD, Appellant.
    No. 16,265-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Diehlmann C. Bernhardt, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael J. Fontenot, Geary S. Aycock, Asst. Dist. At-tys., Monroe, for appellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   HALL, Judge.

The defendant, Billy Ray Ford, was charged by bill of information with committing simple burglary of a building occupied by Tri-State Chemical Company in Monroe contrary to the provisions of LSA-R.S. 14:62 and with committing theft of an International Harvester bobtail truck having a value of more than $500, the property of Tri-State Chemical Company, contrary to the provisions of LSA-R.S. 14:67. After trial before a judge the defendant was found guilty of simple burglary and of unauthorized use of a movable having a value of more than $1,000. The defendant was sentenced to 10 years at hard labor on the burglary conviction and three years at hard labor on the unauthorized use of a movable conviction, the sentences to run concurrently. The defendant appealed assigning several errors, four of which are argued in brief on appeal. Those assignments neither briefed nor argued are considered abandoned.

On November 8, 1982 the Tri-State Chemical Company building located in Monroe, Louisiana was burglarized and approximately $200,000 worth of agricultural chemicals and a 10-wheel diesel truck were taken from the premises. An investigation by the Ouachita Parish Sheriffs Office was made but no physical evidence indicating the identity of the thieves was discovered.

On November 12 the sheriffs office was notified by officials in St. Landry Parish that chemicals identical to the ones taken in the Monroe burglary were being offered for sale in that parish. On the next day local police officials, officials from the Monroe Sheriffs Office, and the FBI arrested three persons attempting to sell a truckload of chemicals. Based on information received from the arrested parties the Monroe Police Department obtained a warrant for the defendant’s arrest and transmitted it to the Clarksdale, Mississippi Police Department on December 6, 1982. The defendant was arrested in Mississippi and after waiving extradition was transferred to Ouachita Parish where he made a statement to the police on January 6, 1983, admitting his involvement in the burglary.

Assignment of Error No. 1-D — Denial of the Motion to Consolidate

Prior to trial the defendant, along with three other persons charged in connection with the burglary, pro se, filed a “Motion For A Joint Trial And/Or One Trial For All Defendants”, which was denied after a hearing. On appeal the defendant argues that the motion should have been granted under LSA-C.Cr.P. Art. 706 which provides that upon motion of a defendant or of all defendants if there are more than one, the court may order two or more indictments consolidated for trial if the offenses and the defendants could have been joined in a single indictment. The defendant relies on State v. Comeaux, 408 So.2d 1099 (La. 1981) where the court in dicta hypothesized that if the defendant had moved to consolidate the offenses then the trial court would be constrained to order consolidation unless the state could show a legitimate prosecu-torial end in opposing consolidation. It is argued that no legitimate prosecutorial end was shown justifying the denial of the consolidation in this case.

Granting of a defendant’s motion to consolidate under Article 706 lies within the sound discretion of the trial judge. In this case there was no showing by the defendant of any reason why the charges against the multiple defendants should be consolidated for trial, nor is there any showing of prejudice to this defendant by reason of the trial court’s denial of his motion to consolidate. The dicta contained in the Comeaux ease opinion is not applicable to the present case because Comeaux dealt with the consolidation for trial of several offenses charged against a single defendant in the context of the defendant’s entitlement to a jury trial. The present case involves consolidation for trial of offenses against multiple defendants with no showing of how the defendant’s rights might be affected by either the granting or the denial of the motion to consolidate.

There was no abuse of discretion on the part of the trial court in denying the motion to consolidate. Further, it is to be noted that the motion was not timely filed in that it was not filed within 15 days of arraignment as required by LSA-C.Cr.P. Art. 521.

This assignment of error has no merit. Assignment of Error No. 1-F — Denial of the Motion for Acquittal made by the defendant at the close of the state’s case

By this assignment the defendant contends that his conviction was based only on his confession without any other evidence connecting him to the offense. The defendant argues that in order for a voluntary confession to be admissible and to support a conviction the state should not only have to prove that a crime has been committed but should also have to prove an independent link between the defendant and the crime. Defendant cites State v. Reed, 420 So.2d 950 (La.1982) in which the court, after holding that when the details of a proven corpus delicti are corroborated by a voluntary confession, the confession is admissible, noted that, in addition, tire marks from the defendant’s car also linked him to the crime. The parenthetical reference to the additional link between the defendant and the crime in the Reed case did not establish such an additional link as a standard or requirement for the admissibility of a voluntary confession or for judging the sufficiency of the evidence to support a conviction. There is no such requirement.

In this case, proof of the burglary and taking of the truck, together with the defendant’s voluntary confession, constituted sufficient evidence of his guilt of the offenses for which he was convicted.

This assignment of error has no merit. Assignment of Error No. 1-B — Failure to suppress the defendant's confession due to the illegality of his arrest and taking him into custody

By this assignment the defendant apparently contends that the Mississippi police officer who arrested him did not display a warrant for his arrest, the arrest was therefore illegal, and the statement given thereafter should be suppressed.

This contention is without merit. According to LSA-C.Cr.P. Art. 217 it is unnecessary that a peace officer making an arrest by virtue of a warrant have the warrant in his possession at the time of arrest. It was established in this case that the defendant was arrested in Mississippi on the basis of a warrant issued by a judge of the Fourth Judicial District Court and transmitted by teletype to Mississippi. The arrest was legal. Further, even if the defendant was illegally arrested by the Mississippi officer, the confession made several days later after the defendant had waived extradition and been transported back to Louisiana was still admissible in that the causal connection between the arrest and the subsequently obtained confession was so attenuated that the confession could not be properly considered as fruit of an illegal arrest. State v. Jackson, 424 So.2d 997 (La.1982).

This assignment of error lacks merit. Assignment of Error No. 1-G — The overly severe and excessive sentence imposed upon the defendant

By this assignment the defendant contends that the sentence imposed was excessive. He was sentenced to 10 of a possible 12 years on the burglary charge and the maximum sentence of three years on the unauthorized use of movables charge, the sentences to run concurrently. At the sentencing hearing the court stated the facts of the case and noted the value of the property taken. The court further noted that suspension of sentence would be prohibited by LSA-C.Cr.P. Art. 893. The court also noted that the defendant had a long record and that this is his fifth felony conviction. The court stated that the defendant was in need of correctional treatment and any lesser sentence would deprecate the seriousness of the crime.

No mitigating factors are presented. The severe sentence is entirely justified by the seriousness of the crime and the defendant’s long criminal record.

For the reasons assigned, the defendant’s convictions and sentences are affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. John DUNN, Appellant.
    No. 16276-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Sanders & Sanders by Martin S. Sanders, III, Winnfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Douglas H. Allen, Asst. Dist. Atty., Winnfield, for ap-pellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

The defendant Johnny Ray Dunn was charged by bill of information with committing simple burglary in violation of LSA-R.S. 14:62. He was found guilty as charged by a unanimous six-member jury and was sentenced to a term of imprisonment of four years at hard labor. The defendant appealed assigning five errors:

(1) The trial court erred in allowing the state to have the jury removed so that the state could proceed to impeach its own witness and threaten that witness out of the presence of the jury.
(2) The trial court impermissibly participated in the impeachment of the state’s witness by directing questions to the witness on its own and being the first to mention a charge of perjury being brought against the witness.
(3) The trial court erred in admitting into evidence the transcript of a taped statement where the state could not show that the tape cassette which contained multiple recordings had been kept in a place where it could not have been tampered with or altered in the interval between the time the statement was recorded and was subsequently transcribed.
(4) The trial court erred in admitting into evidence the statement allegedly made by the defendant where the state could lay no foundation as to its voluntariness, and where the defendant had refused to sign a waiver of his right to remain silent.
(5) The evidence against the defendant was not sufficient for a conviction where it consisted solely of the testimony of two alleged co-conspirators, especially where the testimony of one of those alleged co-conspirators was impeached by the state in an effort to make the testimony of the two witnesses conform.

Facts:

Two witnesses, Steve Barton and James Hopkins, testified that on the evening of November 17, 1982, after an afternoon of drinking, they drove with the defendant in the defendant’s ear from Winnfield, Louisiana to Atlanta, Louisiana. The defendant let the two of them out at the Atlanta High School and drove off. Steve Barton testified that he and Hopkins broke into the school and stole a reel-to-reel tape recorder and a blender. Hopkins testified that he did not enter the school, but stayed outside and acted as a lookout while Barton committed the burglary. The defendant drove back to the school and picked them up and the stolen items were placed in the trunk of the car. Both witnesses stated they did not take the stolen articles from the defendant’s trunk when they left him that evening. Both witnesses were vague in their testimony concerning conversations prior to the burglary, but Hopkins testified that all three of them engaged in conversations about breaking into the school.

Investigation of the burglary by the sheriff’s office resulted in the arrest of Barton, Hopkins, and the defendant. The defendant made a statement at the sheriff’s office after being informed of his rights. He admitted driving his car to the school and dropping Barton and Hopkins off there. He stated that he returned to the school and picked his friends up about 45 minutes later. They were carrying two guns, a recorder, and a blender which they loaded into the car. The defendant later sold the stolen items to Jerry Finn for $60.00. The defendant stated that Barton and Hopkins talked about breaking into the school prior to the burglary.

Assignments of Error Nos. 1 and 2:

By these assignments of error the defendant complains of the removal of the jury upon request by the state during the questioning of the witness Hopkins. The defendant argues that the state was allowed to impeach, question, and rehabilitate the witness under a threat of perjury outside of the presence of the jury, thereby preventing the jury from making its own evaluation of the credibility of the witness’s testimony.

The state was questioning Hopkins about conversations between the three occupants of the defendant’s automobile while they were riding around prior to the burglary and was attempting to implicate the defendant in those conversations. The following colloquy took place:

“Q. Who was involved in those conversations?
“A. I would say all of us were.
“Q. Does that include Johnny Ray Dunn?
“A. I don’t really know who all was talking about it.
“Q. Okay. Was there any effort on your behalf to keep Mr. Dunn from knowing about going to Atlanta School?
“A. All I can say is by that time I was pretty well sauced. We had been drinking pretty heavily that afternoon. And I really couldn’t establish who was talking about what. I mean, beyond a doubt in my mind because I don’t know.
“BY MR. ALLEN: Your Honor, could I have the jury removed.”

After the jury was removed the following took place:

“BY MR; ALLEN: Your Honor, at this time Mr. Hopkins has made a previous statement and the statements which he makes at this time are not consistent with the statements he had made before. I would like him instructed as to the necessity of answering truthfully and I would also like to question him in regard to some prior statements.”
(DIRECT EXAMINATION OF JAMES HOPKINS CONTINUES — JURY OUT)
“BY MR. ALLEN:
“Q. Mr. Hopkins, you realize you are under oath, do you not?
“A. Yes sir.
“Q. And ...
“BY MR. SANDERS, III: Your ...
“BY MR. ALLEN: Go ahead, Marty.
“BY MR. SANDERS, III: Your Honor, this is a procedure that runs the State impeaching their own witness and I think that if the State is going to indulge in the practice of impeaching the witness they have called, I have a right to have the jury present and let this witness be impeached in their presence.
“BY MR. ALLEN: Your Honor, provisions are made for ...
“BY THE COURT: He can’t use that statement in the presence of the jury. Not at this stage of the game, he can’t.
“BY MR. ALLEN: This is Mr. Hopkins statement, Your Honor. This is his own statement.
“BY THE COURT: So ...
“BY MR. SANDERS, III: That is all right with me, Your Honor.
“BY MR. ALLEN: I am just trying to be precautionary. I don’t care if they are in here or not. I want this witness to understand that he is under oath and the consequences of his going against a prior statement. And if it poses a problem Your Honor, I don’t object to the ...
“BY THE COURT: Are you saying you have a statement of ...
“BY MR. ALLEN: This man’s statement.
“BY THE COURT: And the contents of that statement are contrary to his courtroom ...
“BY MR. ALLEN: That is correct.
“BY THE COURT: ... his testimony of the courtroom today?
“BY MR. ALLEN: Yes, sir.
“BY THE COURT: And the implication is that if he continues to testify in the manner that he is, the D.A. would consider a perjury charge?
“BY MR. ALLEN: That is correct, Your Honor.
“BY THE COURT: Do you understand that, Mr. Hopkins?
“BY MR. HOPKINS: Yes, sir.
“BY THE COURT: Very well, Anything else?
“BY MR. ALLEN: That’s all, Your Honor. If they want to bring them back, that is fine with me.
“BY MR. HOPKINS: Would you care to point out the difference in what I have said and what is on the statement?
“BY MR. ALLEN: Shortly.”

After the jury was returned to the courtroom examination of the witness continued as follows:

“Q. Mr. Hopkin, I asked you a moment ago about some conversations that took place in the car. Specifically, about the Atlanta School. Do you recall that?
“A. Yes, sir.
“Q. And I asked you who participated in those conversation. And I will ask you that now, who ... who participated?
“A. I would say we all did.
“Q. During the course of those conversations and as close in time as possible as you can remember to you actually going to the Atlanta School, was there any agreement or was there ... was there any agreement about going to the Atlanta School?
“A. Between who?
“A. Between yourself, Mr. Barton and Mr. Dunn, or if not those 3 then you can tell me who?
“A. There was some agreement.
“Q. Between who?
“A. I would say all of us I guess or we wouldn’t have wound up at the school.
“Q. And the purpose of going to the school was to get some stuff out of it?
“BY MR. SANDERS, III: Objection, Your Honor, he is leading the witness.
“BY MR. ALLEN: I will rephrase it.
“BY THE COURT: Objection sustained.
“Q. What was the purpose of going to the school?
“A. We were going to the school for the purpose of getting something out of it.”

At the time the prosecutor asked that the jury be removed it was apparently the state’s intention to impeach its own witness in accordance with the provisions of LSA-R.S. 15:487 and 488:

§ 487. Impeachment of own witness
“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.”
§ 488. Meaning of surprise
“ ‘Surprise’ in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.”

LSA-C.Cr.P. Art. 794 gives the court discretion in removing the jury when hearing matters to be decided by the court alone. It was appropriate for the jury to be removed in order for the court to consider whether or not the state had laid the proper foundation for impeachment by showing surprise and to consider the admissibility of evidence of prior contradictory statements. After defense counsel stated that he thought he had a right to have the witness impeached in front of the jury, and after a brief discussion in which prior statements of the witness were mentioned and the witness was made aware of possible perjury charges if he testified contrary to prior statements, the court ordered the jury to be returned to the courtroom. The state did not impeach the witness by use of prior contradictory statements or otherwise, but only continued its questioning along the same lines as prior to the time the jury was removed with substantially the same answers.

We discern no prejudice to the defendant arising out of the discussion which took place out of the presence of the jury. No impeachment occurred either in the presence of the jury or after the jury was removed. No prior inconsistent statement was introduced, nor was there a significant change in the witness’s testimony after the proceedings carried on out of the presence of the jury. The dialogue concerning prior inconsistent statements and perjury, which amounted to little more than an admonition to the witness to tell the truth, were incidental to the court’s proper inquiry outside of the presence of the jury as to whether impeachment should be allowed. The witness was not coerced nor improperly rehabilitated outside of the presence of the jury. See State v. Boyd, 359 So.2d 931 (La.1978) in which a similar procedure was employed in the trial court when the state sought to impeach its own witness.

These assignments of error are without merit.

Assignment of Error No. 3:

The defendant contends in this assignment of error that the trial court erred in admitting into evidence a transcript of a recorded statement made by the defendant. It is argued that the transcript is unreliable because it was prepared by someone other than the officer who took the statement about a week after the statement was taken and the tape was not safeguarded during that period of time.

For the admission of demonstrative evidence it suffices that the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Sharp, 414 So.2d 752 (La.1982). Here, the state clearly established the accuracy and relevancy of the transcript. The deputy who took the statement after the defendant was arrested and advised of his rights testified that the tape remained in his file from the time it was made until it was transcribed by someone else in his office. He then compared the transcript with the tape and found it to be completely accurate. It is to be noted that the tape was also offered into evidence at the trial.

This assignment of error lacks merit.

Assignment of Error No. 4:

By this assignment of error the defendant contends that the state did not lay a proper foundation for the admission of defendant’s statement in that the state did not prove that the statement was voluntarily given, particularly in view of the fact that the defendant did not sign the waiver of rights form.

According to the testimony of the deputy, the defendant made the statement at the sheriff’s office shortly after he was arrested. The deputy testified that he informed the defendant of his Miranda rights from a standard Miranda sheet. The deputy said that the defendant indicated that he understood his rights. Although the defendant refused to sign the waiver of rights form, he never indicated that he wanted an attorney, nor was he threatened, coerced, or induced by any promises to make the statement.

In order to introduce a defendant’s statement, the state must make an affirmative showing that it was made freely and voluntarily, and not influenced by fear, intimidation, threats, inducements, or promises. State v. West, 408 So.2d 1302 (La.1982); State v. Dewey, 408 So.2d 1255 (La.1982). If the statement was made in the course of custodial interrogation the defendant must be advised of his Miranda rights before making the statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The conclusions of the trial court on the credibility and weight of testimony relating to the voluntariness of a confession are given great weight and are not overturned unless they are not supported by the evidence. State v. Morvant, 384 So.2d 765 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980).

In this case, the state has presented testimony by the arresting officer that the defendant was informed of his Miranda rights and that defendant was not in any way coerced or intimidated or induced to make the statement. The deputy’s testimony establishes that the statement was made voluntarily and it is apparent that a proper foundation for the admissibility of the statement was laid. The defendant confirmed in the statement itself that it was made voluntarily.

This assignment of error is without merit.

Assignment of Error No. 5:

The defendant’s final assignment of error is that the evidence presented by the state is not sufficient to support a conviction. Defendant argues that the only evidence of guilt was the testimony of two confessed accomplices and that the jury should have been instructed to treat such testimony with great caution, but no such instruction was given. It is argued that because of the lack of an instruction to the jury and because the jury was not allowed to view the rehabilitation of one of the witnesses, the conviction should be reversed.

LSA-C.Cr.P. Art. 801 requires that a party assigning as error the failure to give a jury charge must object before the jury retires. Here no special jury instruction was requested and defense counsel made no objection to the charge given. Accordingly, the failure of the trial court to give a special charge on the testimony of accomplices may not be raised on appeal.

The weight to be given any witness’s testimony is an issue to be determined by the finder of fact. State v. Wright, 410 So.2d 1092 (La.1982). Although as a general principle the jury should be instructed that the uncorroborated testimony of a purported accomplice should be viewed with great caution, such an instruction is not necessary in a case where there is corroborating testimony. See State v. May, 339 So.2d 764 (La.1976) and State v. Murray, 375 So.2d 80 (La.1979).

The testimony of the alleged accomplices in this case was corroborated by the introduction of the defendant’s statement. It was further corroborated by the recovery of the stolen items from the person to whom the defendant admitted selling the items. The court’s general charge on the credibility of witnesses was sufficient under the circumstances of this case.

This assignment of error is without merit.

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

Affirmed.


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

text:
    STATE of Louisiana, Appellee, v. Patrick H. HOGAN, Appellant.
    No. 16,252-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Indigent Defender Office by Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., by Scott J. Crichton and John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

The defendant Hogan was charged with attempted second degree murder. He was tried by jury and found guilty of aggravated battery (R.S. 14:34). The defendant was sentenced to imprisonment at hard labor for a total of seven years without benefit of parole. This appeal, based upon one assignment of error, involves the assertion that the sentence is excessive.

On the night of October 16, 1982 Gary Simon and R.L. Smith were engaged in a dice game on the porch of a vacant house in Shreveport. Patrick Hogan approached the two and asked if he could join in the game. Simon refused the request, stating that Hogan was jinxing him. An argument ensued between the two. Shortly thereafter Hogan shot Simon twice in the back. As a result Simon was paralyzed from the chest down. As noted, Hogan was charged with attempted second degree murder.

Testimony at the trial describing the fracas was contradictory. Simon stated that during the argument the defendant left and went down an alley to retrieve a .22 caliber rifle. When he returned with the weapon, Simon jumped from the porch and stood between two houses with his hands raised to indicate he was surrendering. Since defendant continued advancing, Simon started to flee. Defendant shot him twice in the back, with the second shot severing his spinal cord.

On the other hand, both Smith and the defendant testified that during the argument it was Simon who first left the porch and said “just wait ‘til I get back.” The defendant then secured his rifle from a nearby location in order to protect himself from a possible attack by Simon. When the latter returned he appeared to be carrying something in his hand. Defendant thereupon, according to his testimony, shot Simon in self-defense. Defendant then ran down the street, only to observe Simon emerge from between two houses. At that time, assertedly in fear of his life, defendant shot Simon again.

As explained above, the jury found defendant guilty of aggravated battery.

Prior to imposition of sentence the trial judge noted both aggravating and mitigating factors. With reference to the former he pointed out the seriousness of the harm done to the victim who is apparently relegated to the use of a wheel chair for life. Among mitigating factors listed by the trial court was the victim’s provocation; the probability that the defendant would not commit other crimes; the hardship that imprisonment would cause the defendant’s family; the defendant’s insignificant criminal record; the defendant’s good work record; and the defendant’s good character.

The trial judge then observed that, because the defendant used a firearm in the commission of the crime, certain minimum penalties were mandated by La.R.S. 14: 95.2 and La.C.Cr.P. Art. 893.1.

La.R.S. 14:95.2, enacted in 1977, provides:

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

La.C.Cr.P. Article 893.1, enacted in 1981, stipulates:

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

Feeling bound by these two provisions, the trial judge imposed the minimum five year sentence under Article 893.1 and the additional two year sentence under R.S. 14:95.2, both without benefit of parole.

Defendant argues that “the implementation of 893.1 and 14:95.2 has violated his right to a meaningful sentence which makes a measurable contribution to acceptable goals of punishment.” He further contends that these statutes kept the trial court from individualizing the sentence to the offender and the offense.

This argument has been leveled at the second degree murder and armed robbery statutes and has been rejected. See State v. Parker, 416 So.2d 545 (La.1982); State v. Victorian, 332 So.2d 220 (La.1976); State v. Lawry, 430 So.2d 153 (La.App. 2d Cir. 1983).

Furthermore, our Supreme Court has had the opportunity but did not find fault with either of the statutes attacked by the defendant. In State v. Robinson, 423 So.2d 1053 (La.1983), Article 893.1 was deemed inapplicable in sentencing only because it was enacted after the commission of the crime. Imposition by the trial court of the additional two year sentence under R.S. 14:95.2 was approved in State v. Roussel, 424 So.2d 226 (La.1982).

It may be argued that Article 893.1 is inapplicable since R.S. 14:95.2 “otherwise prohibits” suspension of the two year sentence. Thus construed, Article 893.1 would become practically uséless since R.S. 14:95.2 pertains to most felonies involving the use of a firearm. It would be improper for this court to assume that the legislature was simply engaging in a futile exercise by enactment of the statute in question.

In State v. Goode, 380 So.2d 1361 (La.1980), the court considered the constitutionality of La.R.S. 14:50.1, which mandated a minimum of five additional years without benefit of parole, probation or suspension of sentence for certain crimes committed against the person of an individual 65 years or older. In this particular case the crime charged was simple battery, a misdemean- or carrying a maximum sentence of six months in jail. Noting that the statute failed to provide for a maximum sentence and that the defendant could conceivably receive a life sentence for the misdemean- or, the court found that it violated the Louisiana constitutional article prohibiting excessive punishment.

Our case is distinguishable from Goode in that there is a maximum imposable sentence of twelve years, seven of which must be without benefit of parole, probation or suspension of sentence. The trial judge, for reasons expressed in the record, chose not to impose this maximum sentence.

To summarize, apparently motivated by a deep concern over the serious consequences of crimes involving the use of firearms, our legislature exercised its lawful prerogative in directing the imposition of a minimum sentence. This has been accomplished by the enactment of R.S. 14:95.2 and Article 893.1. The trial judge correctly took note of and applied these two statutes in this case.

The sentence imposed is not excessive. Consequently, the assignment of error is without merit.

Decree

■ Defendant’s sentence is affirmed.

HALL, Judge,

dissenting.

I do not believe that the legislature intended that both of the penalty enhancement statutes, LSA — R.S. 14:95.2 and LSA —C.Cr.P. Art. 893.1, be applied in imposing sentence for a felony involving the use of a firearm so as to require a minimum sentence of seven years at hard labor without benefit of suspension of sentence, probation, or parole in each such case.

LSA — R.S. 14:95.2 was added to Title 14 by Act 622 of 1977. It provides for a term of two years imprisonment for a first conviction and five years for a second and subsequent offense to be served without benefit of parole, probation, or suspension of sentence or credit for good time, such penalty to be in addition to any other penalty imposed and to run consecutively to any other penalty imposed. It applies to certain enumerated felonies.

LSA — C.Cr.P. Art. 893.1 was subsequently added to the Code of Criminal Procedure chapter providing general sentencing provisions by Act 139 of 1981. It provides minimum sentences without benefit of suspension of sentence, probation, or parole when a firearm is used in the commission of a felony and “when suspension of sentence is not otherwise prohibited.”

Suspension of sentence is “otherwise prohibited” for certain felonies such as armed robbery, LSA — R.S. 14:64. It is “otherwise prohibited” for the specific felonies involving use of a firearm enumerated in LSA— R.S. 14:95.2. Accordingly, Article 893.1 is not applicable to those felonies to which LSA — R.S. 14:95.2 is applicable. It makes sense to say that Article 893.1 was designed as a catchall to provide enhanced penalties without suspension of sentence, probation, or parole only for those felonies not listed in LSA — R.S. 14:95.2 or for which the basic penalty provisions do not provide a prohibition against suspension of sentence, probation, or parole. An example of a felony not listed in LSA — R.S. 14:95.2 and the penalty provisions of which do not prohibit suspension of sentence, probation, or parole, to which Article 893.1 would apply when a firearm is used, is negligent homicide, LSA — R.S. 14:32.

There is another reason for concluding that the legislature did not intend for the penalty provisions of LSA — R.S. 14:95.2 to be imposed in addition to the penalty provisions of LSA — C.Cr.P. Art. 893.1. LSA— R.S. 14:95.2, enacted in 1977, provides that the penalty provided therein shall be in addition to any other penalty imposed under the provisions “of this Title.” Article 893.1 was not enacted until 1981 and obviously the legislature did not have the penalty provisions of Article 893.1 in mind when LSA — R.S. 14:95.2 was enacted. Even after enactment of Article 893.1, the penalty under that article of the Code of Criminal Procedure is not a penalty imposed under the provisions of “this Title”, that is, Title 14.

In sum, my view is that LSA — R.S. 14:95.2 and LSA — C.Cr.P. Art. 893.1 cannot both be applied to enhance the penalty for a felony involving the use of a firearm. In the case of each felony involving the use of a firearm, one or the other of the statutes, but not both, will apply.

I would set aside the sentence imposed in this case and remand with instructions that the defendant be resentenced in accordance with LSA — R.S. 14:34 and 14:95.2.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Donnie Ray HARRIS, Appellant.
    No. 16286-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    William T. Giddens and Richard E. Hiller, Shreveport, Indigent Defender Office, for appellant.

      William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard M. Pish, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

Donnie Ray Harris has appealed his conviction for manslaughter (La.R.S. 14:31) and the consecutive sentences of 5 and 2 years at hard labor without the benefit of parole as mandated by La.C.Cr.P. Art. 893.1 and La.R.S. 14:95.2.

Defendant assigns as error:

(1) That the evidence was insufficient to support his conviction and
(2) That the sentence imposed on him is excessive and that La.C.Cr.P. Art. 893.1 and La.R.S. 14:95.2 are unconstitutional as applied to him.

We find no merit to either assignment and affirm the conviction and sentence for the reasons assigned.

FACTS:

On Thanksgiving Day, November 25, 1982, Isiah Williams (the victim) was living with his brother, John Henry Williams, his step-daughter, Brenda Lubom, and her boyfriend, Rory Joyce. Defendant was living next door with his girlfriend, Esther Marie Evans.

During the evening, the residents of the Williams’ household were joined by Gloria Bryant and Ethel Pimpton, girlfriends of Isiah Williams. The group began drinking and dancing and during the course of the festivities, Isiah Williams slapped Gloria Bryant. This precipitated a fight between Isiah Williams and his brother, John Henry Williams.

During the fight between the two brothers, Ethel Pimpton and Gloria Bryant left the Williams’ residence and went next door to the defendant’s house. While there, Pimpton discovered that she was missing $100 from her purse, so she accompanied the defendant’s girlfriend, Esther Marie Evans, back over to the Williams’ residence to look for the money. The money could not be located, so the pair returned to the defendant’s house suspecting that Williams had stolen the money.

Williams followed Pimpton and Evans outside of his house and began to curse Evans. Williams also demanded that Pimp-ton return to the party. The defendant came out on his porch with his shotgun by his side and, after a few words were exchanged with Williams, defendant discharged his shotgun and killed Williams.

The record contains differing testimony as to how the fatal shooting actually occurred. The state’s witnesses testified that Williams was unarmed and unthreatening as he argued with the defendant. The defendant testified that Williams was armed with a shotgun and lunged toward him. The defendant also testified that because of Williams’ violent and aggressive reputation, he tried to retreat back inside his house during the argument. Defendant further contends that while he was retreating, his shotgun became entangled in a curtain hanging in the doorway and it accidentally discharged. An unloaded shotgun was found on the Williams’ porch when the police arrived. However, the state’s evidence indicated that the shotgun was on the porch because the defendant’s brother brought the gun outside after the incident seeking revenge against the defendant.

ASSIGNMENT OP ERROR NUMBER 1:

Defendant contends the state’s evidence was not sufficient to prove all of the elements of the crime of manslaughter as there was insufficient evidence to show the killing was not in self defense. Defendant contends this is particularly true since the state’s evidence is primarily circumstantial and the evidence must exclude every reasonable hypothesis of innocence under La. R.S. 15:438. Therefore, the issue before us on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense.

The state presented three witnesses who explained how the victim’s gun, which was not loaded, came to be on the Williams’ porch after the shooting. Although the testimony of each of these witnesses varies somewhat from the others in explaining how the victim’s gun became involved in the incident and although all three had a close relationship with the victim, their testimony, if believed by the jury, established that the victim was unarmed at the time of the shooting.

The state also offered the testimony of Gloria Bryant who was in defendant’s house at the time of the shooting. She testified that defendant walked through his front room and stepped out the front door with his shotgun down by his side. She further testified that after defendant stepped on the porch he raised the gun and fired toward the Williams’ residence. Bryant also denied having seen defendant stumble and fall backward into a curtain which caused the gun to accidentally discharge.

This record does not support defendant’s contention that the victim, while armed with a shotgun, lunged toward defendant causing him to panic and to fall into the curtain and to accidentally discharge the gun. Defendant’s body was found by investigating officers partially on the steps which are located in the center of the porch. The coroner’s testimony that the wound indicated the victim was moving when shot does not have the effect contended by defendant. The wound was on the right side of the chest which conflicts with defendant’s contention that the victim was lunging toward him when the shooting occurred. An examination of photographs showing the position of defendant’s porch with the victim’s porch lends further corroboration to the state’s case.

We find there is sufficient evidence to sustain the state’s burden of proving the killing was not done in self-defense under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Chism, 436 So.2d 464 (La.1983); and State v. Willis, 446 So.2d 795 (La.App. 2d Cir.1984). This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2:

At the sentencing hearing the trial court acknowledged that if it were not for the mandatory provisions of La.C.Cr.P. Art. 893.1 and La.R.S. 14:95.2 it would have imposed a lesser sentence in view of the mitigating circumstances present in this case. Defendant contends that these statutes are unconstitutional in that they violate the prohibitions of Art. 1, Sec. 20 of the Louisiana Constitution of 1974 against laws subjecting a person to excessive punishment.

Appellant contends that both Art. 893.1 and R.S. 14:95.2 make no measurable contribution to acceptable goals of punishment and the sentences mandated by these statutes are grossly out of proportion to the severity of the crime. Therefore, they fail to meet the constitutional test set forth in State v. Williams, 397 So.2d 1287 (La. 1981). Appellant also contends the application of these statutes is in conflict with the utilization of sentencing guidelines required by La.C.Cr.P. Art. 894.1.

The identical issue presented by this assignment of error is before this court in State v. Hogan, 454 So.2d 1235 (La.App.2d Cir.1984), in which an opinion is being rendered on this date. For the reasons assigned in that opinion we find that Art. 893.1 and R.S. 14:95.2 are not unconstitutional and defendant’s sentence does not constitute excessive punishment in this case. Therefore, there is no merit to this assignment of error.

For the foregoing reasons the conviction and sentence are affirmed.

      . Art. 893.1.
      When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

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


text:
    STATE of Louisiana, Appellee, v. Floyd L. BROWNING, Jr., Appellant.
    No. 16292-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Kidd & Kidd by Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, L.B. Loftin, Dist. Atty., Rayville, E. Rudolph McIntyre, Jr., Asst. Dist. Atty., Winnsboro, for appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

The defendant, Floyd L. Browning, Jr., appeals his conviction for Distribution of Marijuana, LSA-R.S. 40:966, following a guilty plea, and resulting sentence of three years at hard labor. We affirm.

The defendant made a sale of approximately one ounce of marijuana to a state police undercover officer for $40. The initial contact with the defendant by the officer was through a confidential informant who was working with the officer. After being asked if they could purchase any drugs from him, the defendant had the officer follow him to an isolated place where the transaction occurred.

On appeal, the defendant has assigned as error the following:

(1) Defendant’s guilty plea is involuntary in the legal and constitutional sense and was made without the effective assistance of counsel;
(2) The trial court imposed an excessive and disproportionate sentence;
(3) The defendant was denied effective assistance of counsel at the sentencing stage of his criminal trial.

Assignment of Error No. 1:

By this assignment, the defendant asserts that his plea of guilty should be set aside on the basis that it was not knowingly and voluntarily made. It is contended that defendant’s guilty plea is vitiated by the ineffective assistance of counsel due to the failure of counsel to consider available defenses, to advise the defendant of the essential elements of the crime, and to render advice conducive to an informed and intelligent plea. It is argued that counsel failed to advise the defendant of the weaknesses in the state’s case and the possibility that a jury might acquit him.

The issue of ineffective assistance of counsel is premature and is more properly raised by application for post-conviction relief in the district court, where a full evidentiary hearing may be conducted if warranted. State v. Brown, 384 So.2d 983 (La.1980).

The central issue raised by this assignment of error is whether the defendant’s guilty plea was intelligently and voluntarily made under the standards established in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Essentially, the Boykin decision held that a guilty plea is not valid unless it is an intelligent and voluntary choice on the part of the accused. The Boykin decision explains that a guilty plea constitutes a conviction without a trial; for that reason, a defendant should be made aware of the rights that are automatically waived by the choice to forego trial; the privilege against compulsory self-incrimination; the right to trial by jury; and the right to confront one’s accusers. As interpreted by the Louisiana Supreme Court, the Boykin decision requires “an express and knowing waiver of at least these three federal constitutional rights.” State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (La.1971).

The decision to plead guilty is not deemed an intelligent and understanding choice unless the defendant is informed of the rights which attach at trial. While an understanding of the triad of rights may be the sine qua non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea. For evidentiary purposes, the record must contain an affirmative showing that demonstrates the understanding and voluntary nature of the plea. State v. Halsell, 403 So.2d 688 (La.1981).

The record in the present case indicates that at the defendant’s plea colloquy, the trial court adequately determined that the defendant understood the crime to which he was pleading guilty, distribution of marijuana. The defendant indicated to the Court that he understood the crime and that he was pleading guilty of his own free will without any threats or promises made by the State, his counsel, or anyone else. The trial court then informed the defendant of his right to go to trial by jury, his right against self-incrimination, his right to compulsory processes of the Court, and his right to appeal the verdict. The record reflects that the trial court discussed each of these rights with the defendant and that the defendant indicated he understood each of these rights he was relinquishing by pleading guilty to distribution of marijuana.

The defendant told the court that he was, in fact, guilty of the crime charged. There is no indication in this record that there were any meritorious substantive defenses available to the defendant. The possibility that a jury might not accept the state’s evidence and might acquit exists in every case, and a proper Boykinization such as was conducted in this case adequately informs the defendant of his jury trial rights and the necessarily concomitant possibility of acquittal.

The record clearly reflects that the defendant’s plea of guilty was knowingly and intelligently made under advisement of his Boykin rights. It is not necessary or appropriate to delve into what the defendant’s lawyer might or might not have told him about the possibilities of an acquittal. This assignment of error is without merit.

Assignment of Error No. 2:

By this assignment of error, the defendant asserts that the trial court imposed an excessive and disproportionate sentence.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

At the defendant’s sentencing hearing the trial court noted that the defendant had had several encounters with the law. The defendant’s record contained one charge for issuing worthless checks, three charges of criminal neglect of family, disturbing the peace, and one charge of contributing to the delinquency of a minor. The defendant was not convicted for any of these charges. Therefore, this conviction is the defendant’s first felony offense. The trial court noted that under LSA-C. Cr.P. Art. 894.1, the Court should impose a sentence of imprisonment if there is an undue risk that during a period of suspended sentence or probation the defendant will commit another crime. The Court was of the opinion that possibility existed. Additionally, the Court found that the defendant was in need of a custodial environment or correctional treatment and that any lesser sentence would deprecate the seriousness of the defendant’s crime. The trial court noted the problem of drug distribution in the community in reiterating the serious nature of the defendant’s crime. The trial court imposed a sentence of 3 years at hard labor out of the maximum imposable sentence of 10 years and a $15,-000 fine.

The trial court’s compliance with LSA-C. Cr.P. Art. 894.1 was minimal, but adequate. The court reviewed information relating to the defendant disclosed by the pre-sentence investigation report. No mitigating factors are shown other than the fact that defendant is a first offender. The court emphasized the seriousness of the offense, an appropriate consideration.

A sentence is constitutionally excessive in violation of Art. 1, § 20 of the Louisiana Constitution if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, supra.

A review of the record in the present case indicates that the defendant’s sentence is not grossly out of proportion to the severity of the offense nor does there appear to be a needless and purposeless imposition of pain and suffering. Three years at hard labor for an offender who engaged in a commercial sale of a controlled dangerous substance and who is subject to a maximum sentence of 10 years and a $15,000 fine is not excessive. This assignment of error is without merit.

Assignment of Error No. 3:

By this assignment of error, the defendant asserts he was denied effective assistance of counsel at the sentencing stage of the proceedings. As stated in the discussion of Assignment of Error No. 1, assertions of ineffective assistance of counsel as a general rule are more properly raised by an application for post-conviction relief than by assignments of error on appeal. State v. Brown, supra. This assignment of error is without merit.

DECREE

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

Affirmed.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Michael R. BOSLEY, Appellant.
    No. 16316-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Jones & Jones by James Garland Smith, Monroe, for appellant.
    Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Michael Bosley, appeals jury convictions of attempted manslaughter in violation of La.R.S. 14:31 and 27 and armed robbery in violation of La.R.S. 14:64 and respective concurrent sentences of five and a half years at hard labor and forty years at hard labor without benefit of parole, probation or suspension of sentence assigning three errors:

(1) The court erred in denying the defendant’s motion for new trial in that the verdict of guilty of Attempted Manslaughter was contrary to the law and evidence;
(2) the court erred in imposing a forty (40) year sentence for Armed Robbery in that the sentence is excessive and it is grossly disproportionate to the severity of the crime; [and]
(3) the court erred in allowing the introduction of the gun into evidence where a proper foundation had not been established or chain of custody.

FACTS

At approximately 2:45 a.m. on Sunday, May 9, 1982, Deputy Jack Lynch was the duty deputy at the Ouachita Parish Jail Extension, a minimum security jail facility, also known as the “P-Farm.” While seated at his desk in his office, he observed his office door open and a masked individual garbed in dark clothing enter armed with a .38 blue steel revolver. This intruder then pointed the gun at Lynch and told him that if Lynch moved, he would be killed. Thereafter, the intruder instructed Lynch to open the “store,” a commissary located on the premises for the inmates’ use. Lynch then obtained his keys and unlocked the store and the money box bolted to the wall inside the store. Thereafter, Lynch was instructed to open a closet located inside of the office in which inmates’ personal belongings, such as wallets, jewelry, etc., are kept alphabetically in brown manila envelopes which he did. When Lynch told the intruder that there was nothing in the closet, the intruder replied that he knew that the inmates’ personal belongings were kept within that closet. At the intruder’s instruction, Lynch opened the closet and placed envelopes from certain of the slots into a pillow ease provided by the intruder. The intruder then instructed Lynch to open the office of the director of the facility. When Lynch responded that he had no key, Lynch was told to open the safe located behind the closet door which Lynch did. The intruder then opened the door of the safe himself and removed two boxes which contained inmate work release checks, receipts from produce sales and a bag containing petty cash used for change at the produce stand where the inmates sell produce grown on the farm. Included among the items removed from the P-Farm were cash from the store, certain inmates’ belongings contained in the envelopes, change and currency from the safe and the receipts contained in the safe.

Thereafter, the intruder went to a closet where he obtained a pair of leg irons which he ordered Lynch to fasten around his right wrist. He led Lynch to the front of the director’s office where he searched Lynch and removed $4.00 from his wallet. After attempting to “cuff” Lynch at two other locations, the intruder finally cuffed Lynch to a water fountain located in the dining hall of the facility. The intruder left the dining hall. While he was gone, Lynch removed a gun from his left boot. A few minutes later, the intruder returned. As he was walking through the door, he observed the gun in Lynch’s hand and in response fired a shot in Lynch’s direction which lodged itself in a wall some 15 feet from Lynch. The shot was fired while the intruder was backing out of the door and pulling it shut. Lynch fired three shots at the intruder who thereafter hastily departed on foot from the facility.

Because the actions of the intruder clearly indicated that he was a person familiar with the layout and the organization of the facility, Lynch was convinced that the intruder was a former inmate. After deliberation, Lynch reported to those investigating the crimes, that his assailant was the defendant.

The defendant was later arrested, charged with attempted first degree murder and armed robbery, tried on both counts, found guilty of attempted manslaughter and armed robbery, and sentenced.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, defendant argues that the verdict of attempted manslaughter was contrary to the law and evidence because the State failed to offer any evidence which showed that the defendant had a specific intent to kill Lynch. It is further argued that the circumstances under which defendant actually fired his gun do not lead to an inference that the defendant actively desired to kill Lynch because the defendant had adequately disguised himself, had immobolized Lynch by handcuffing him to the water fountain and had every opportunity to kill or harm the deputy during the robbery but failed to do so. This argument is unpersuasive.

La.R.S. 14:27 provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.
La.R.S. 14:31 provides:
(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; or
(2)A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.
Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.

Thus, the crime of attempted manslaughter is a crime which requires the presence of specific intent. See La.R.S. 14:27 and 31; State v. Butler, 322 So.2d 189 (La.1975); State v. Turner, 440 So.2d 834 (La.App.2d Cir.1983). Specific 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. La.R.S. 14:10. Because specific intent is a state of mind, it need not be proven directly as a fact but may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Sanders, 431 So.2d 833 (La.App.2d Cir.1983). Consequently, it is necessary that a determination be made as to whether the circumstances presented support the jury’s finding that the defendant had the requisite specific intent to kill or inflict great bodily harm on Lynch when the defendant fired a shot in Lynch’s direction.

A review of the sufficiency of the evidence to support a criminal conviction requires a determination of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime [here specifically, the element of specific intent] to have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sanders, supra.

At trial, Deputy Lynch testified that his assailant, after leaving him handcuffed to the water fountain in the dining hall, returned to the dining hall. When he saw Lynch’s gun, the defendant retreated through the door firing a shot in Lynch’s direction as he left. The bullet was recovered from a wall located approximately 12 to 15 feet from the point where Lynch was secured. Additionally, the testimony of Barbara Roe, defendant’s girlfriend, reveals that upon defendant’s return to her residence immediately after the crime was committed he informed her that he had gone to the P-Farm and had chained the deputy to the water fountain after which the deputy had shot at the defendant and the defendant shot back.

When this evidence is construed in the light most favorable to the prosecution, it is clearly sufficient to satisfy a rational juror that the defendant acted with specific intent to kill or inflict great bodily harm when he discharged a lethal weapon aimed in the direction of Deputy Lynch who was cuffed to the water fountain. Compare State v. Mart, 419 So.2d 1216 (La.1982). See also and compare State in Interest of Jordan, 348 So.2d 697 (La.App. 1st Cir. 1977); State in Interest of Aaron, 405 So.2d 1194 (La.App. 1st Cir.1981); State v. Tauzier, 397 So.2d 494 (La.1981); State v. Temple, 394 So.2d 259 (La.1981); State v. Holmes, 388 So.2d 722 (La.1980).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In connection with this assignment, defendant argues that it was an abuse of discretion for the trial judge to impose a 40 year sentence without benefit of probation, parole or suspension of sentence for the armed robbery conviction and a five and one-half year sentence for the attempted manslaughter conviction and that the sentences were excessive and disproportionate.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence, a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant because the sentencing guidelines of Article 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983); State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983); State v. Sepulvado, supra. When Article 894.1 has been complied with, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

In sentencing this defendant, the sentencing judge who heard the evidence presented during the trial indicated that the pre-sentence investigation revealed that the defendant had a prior conviction in 1978 for simple burglary and a prior escape from the Ouachita Parish Jail. The judge also noted that subsequent to the commission of the instant offense that the defendant had been convicted in California of one count of grand theft and alluded to the circumstances surrounding the crimes for which the defendant had been found guilty and was before the court for sentencing. First noting that the defendant was not eligible for probation or suspension of sentence because of his prior criminal record, the sentencing judge was of the opinion that lesser sentences than the ones actually imposed would deprecate the seriousness of the instant offenses, particularly because of their brazen nature. The sentencing judge further opined that there was an undue risk that the defendant would commit other criminal acts because of his past criminal record and the commission of a subsequent offense. It was further found that the needed modification of the defendant’s anti-social behavior could be provided most effectively by and the public’s safety required a period of long term committment to an institution. This was noted to be particularly true because previous short term committments had proved ineffective in achieving those aims. In a statement of considerations filed of record, the sentencing judge indicated that no mitigating circumstances were found to be present.

Although the sentencing judge in this case articulated specific reasons for the sentences imposed, he did not articulate every circumstance contained in the applicable article. However, it is unnecessary that he list every aggravating and mitigating circumstance when the record reflects that he adequately considered these guidelines in particularizing the sentences to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979). We conclude that the sentencing judge adequately complied with the requirements of Article 894.1.

Although the sentence imposed for the armed robbery conviction is within the lower half of the sentencing range of the applicable article, it is for a considerable period of time and is to be served without benefit of probation, parole or suspension of sentence. However, based on the particular facts of this case, it is affirmatively supported by this record and does not constitute an abuse of discretion. The extended period of imprisonment is not needless and purposeless but rather is imposed for the purpose of negating the defendant’s opportunity to commit such crimes in the future. It is commensurate with, rather than disproportionate to the extreme severity of the defendant’s offense. In light of this particular crime, it certainly does not shock our sense of justice.

Likewise, the concurrent sentence of five and one-half years for the attempted manslaughter conviction is supported by the record and does not constitute an abuse of discretion.

Accordingly, these sentences are not excessive and this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

In connection with this assignment, the defendant argues that it was error for the trial court to allow the state to introduce the gun subsequently proven to have been utilized in these crimes because there was an insufficient foundation laid and an incomplete chain of custody established prior to its introduction.

The gun in question came into the possession of Mrs. Lily Bosley Thompson, a cousin of the defendant when the defendant gave it to her for safekeeping. Not wanting to keep a gun in the house, she in turn gave the gun to Robert Powell, who without noting its serial number or inspecting it closely, shortly thereafter turned it over to the Ouachita Parish Sheriff's Office through Sgt. Worley. Sgt. Worley then gave the gun to Deputy Wellbrink who tagged it and placed it in an envelope which Worley signed. The gun was deposited with Linda Armstrong of the North Louisiana Crime Lab, who four days later released the gun to Emmett Jones, another employee of the crime lab in Shreveport. The gun was tested in Shreveport, determined to be the gun which fired the shot at Deputy Lynch and later returned by crime lab employees to Ms. Armstrong who placed it in the evidence locker where it remained until trial. The crux of defendant’s argument is that because Powell testified that he did not inspect the gun or note its serial number that his failure to identify the exhibit at trial was fatal to its admissibility at trial.

This argument is also unpersuasive. In order to introduce demonstrative evidence at a trial it is sufficient if the foundation laid establishes that it is more probable than not that the object is one connected with the case. Lack of positive identification or of a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. See State v. Taylor, 422 So.2d 109 (La.1982); State v. Sam, 412 So.2d 1082 (La.1982); State v. Davis, 411 So.2d 434 (La.1982); State v. Paster, 373 So.2d 170 (La.1979).

Although Powell did not in fact positively identify the weapon at trial, his testimony combined with that of Ms. Bos-ley, Sgt. Worley, Deputy Wellbrink and all of the employees of the respectively involved crime labs, clearly established that more probably than not this gun was the one connected with the case. The evidence was properly identified and admitted.

This assignment is meritless.

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

CONVICTION AND SENTENCE AFFIRMED.


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

text:
    Charles Bernard WHITAKER, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY et al., Defendants-Appellees.
    No. 16333-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Donald R. Miller, P.C., Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley Lafargue, Shreveport, for defendant-appellee, State Farm Fire & Cas. Co.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued his wife, from whom he was legally separated at the time, and his mobile homeowners insurer for damages resulting from the drowning death of their 13 month old daughter in the bathtub of the couple’s mobile home.

The insurer filed a motion for summary judgment which was sustained by the trial court. Plaintiff appealed.

For the reasons hereinafter set forth, we affirm.

Charles Whitaker and Denise Lee Whitaker were married on February 14, 1978. They established their matrimonial domicile at a mobile home in Shreveport. The mobile home was covered by a mobile homeowners insurance policy issued by defendant State Farm.

Two children were born of the marriage, the younger being Amber Whitaker on March 12, 1981.

On February 24,1982 the couple received a legal separation. Mrs. Whitaker was awarded care and custody of the two minor children. By agreement the mother and the children continued to reside in the mobile home and Mr. Whitaker moved to a separate apartment.

On April 30, 1982 Amber Whitaker drowned in the bathtub of the mobile home after the mother momentarily left her unattended to answer the telephone. This litigation ensued.

In sustaining State Farm’s motion for summary judgment the trial court held that Mr. Whitaker, Mrs. Whitaker, and the minor child were all “insureds” according to the insurance policy. Since one insured could not make a claim as a result of injury or death against another insured, the policy did not afford coverage. The court relied on the holdings of Marchese v. State Farm Fire & Cas. Co., 396 So.2d 490 (La.App. 4th Cir.1981) and Bearden v. Rucker, 437 So.2d 1116 (La.1983), in reaching this decision.

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir. 1983).

In the present case the facts are not in dispute. The issue is whether as a matter of law the insurance policy excluded coverage to plaintiff for the death of his minor child.

The policy in question contains the following definitions and exclusions:

“You” and “your” mean the ‘named insured’ [Charles Whitaker] shown in the Declarations. Your spouse is included if a resident of your household.
1. “bodily injury” means harm, sickness or disease. This includes required care, loss of services and death resulting therefrom.
2. “insured’ means you and the following residents of your household:
a. your relatives;
b. any other person under the age of 21 who is in the care of a person described above.
Under Exclusions the policy states:
1. Coverage L [Personal Liability] and Coverage M [Medical Payments to Others] do not apply to:
g. bodily injury to you or an insured within the meaning of part (a) or (b) of the definition of insured.

In the recent case of Bearden v. Rucker, supra, the Supreme Court interpreted a similar definition section in an automobile insurance policy. The court held that a legally separated wife, living in a separate apartment, was still a “resident of the household” of her husband according to the insurance policy in the husband’s name and the injuries she received in an automobile accident were covered by the policy. The court also concluded that the wife’s mother and her son, both residing with her in the apartment, were also insured because they were relatives of the named insured who were residents of the named insured’s household.

Following the rationale of Bearden, the trial court correctly held that Mr. and Mrs. Whitaker and the minor child were all “insureds” according to the insurance policy. Appellant does not dispute this finding on appeal. However, appellant contends the exclusion for bodily injury to an insured does not apply to the mental anguish and distress suffered by the father because of the death of the child. He argues this exclusion applies only to the pain and suffering of the child prior to her death.

In Marchese v. State Farm Fire & Cas. Co., supra, a mother whose son died in a house fire sued her homeowners insurer for the loss of support, love and affection. The policy in that ease had a definition of “bodily injury” and an exclusion for bodily injury to an insured nearly identical to those provisions in the present policy. In Márchese the court held the term “bodily injury” included mental anguish, pain and suffering of the mother; therefore, the coverage was excluded.

We find the trial court correctly held the insurance policy clearly and unambiguously excluded coverage for bodily injury to an insured. Defendant was entitled to a summary judgment as a matter of law.

For these reasons, we affirm the district court judgment at appellant’s cost.


author: JASPER E. JONES, Judge.

text:
    Dan PEACOCK, Plaintiff-Appellant, v. WEST CARROLL PARISH POLICE JURY, Defendant-Appellee.
    No. 16342-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Kidd & Kidd by Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Thomas E. Cooper, Jr., Rayville, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The plaintiff, Dan Peacock, filed an action for damages against the West Carroll Parish Police Jury alleging he was wrongfully discharged from his job with the parish for political reasons in violation of LSA-R.S. 23:961. After a trial on the merits, the trial court rendered judgment rejecting plaintiff’s demands. Plaintiff appeals. We affirm.

The trial proceedings were not recorded and there is no transcript available to this court on appeal. The trial judge’s written reasons for judgment contain a narrative of facts which substantially complies with LSA-C.C.P. art. 2131 which requires the judge to compile such a narrative for the purpose of appeal when the parties fail to agree on a narrative of the facts. The judge also compiled a written summary of the witnesses’ testimony, taken from his notes, which he filed in the record. The parties do not complain that the narrative of facts and summary of testimony are incomplete or incorrect. We find that with the inclusion of these items, the record is sufficiently complete to review the trial court judgment notwithstanding the absence of a transcript of testimony. See Succession of Seals, 243 La. 1056, 150 So.2d 13 (1963); Gulling v. E.I. Du Pont de Nemours and Company, 228 So.2d 750 (La.App. 4th Cir.1969).

Plaintiff had been employed by the police jury on two separate occasions and at the time he was discharged he had worked for the police jury a total of 17 years. Plaintiff worked as a heavy equipment operator on the parish road crew during most of the period that he was employed by the police jury.

In the fall of 1979 an election was held to select the police juror for District 3 of West Carroll Parish. The incumbent, Lee Lois Jones, was a candidate for reelection but lost to Hursel Tyson. Jones is plaintiff’s nephew and plaintiff actively campaigned for Jones’ reelection.

Tyson took office in June, 1980. A short time later the police jury transferred plaintiff from his job on the road crew to a job as janitor at the parish road barn. A new employee was subsequently hired to take plaintiff’s place on the road crew. At the October 8, 1980 police jury meeting, Tyson moved to have the plaintiff fired on the grounds there was a shortage of road funds. The motion was carried by a unanimous vote of the seven member jury and plaintiff was discharged on October 24. Plaintiff was the only parish employee terminated because of the alleged funds shortage. Other persons were hired to work on the road crew shortly before and soon after plaintiffs discharge. The explanation given for this apparent inconsistency was employees were needed for road work but the janitor’s job at the road barn was unnecessary.

Plaintiff contends he was fired solely because he campaigned against Tyson in the 1979 election. The trial judge found plaintiff failed to carry his burden of proving he was fired for political reasons rather than financial reasons. The summary of testimony reveals there was evidence before the court which would have supported a finding for either plaintiff or the police jury. Therefore, the trial judge’s decision was ultimately based upon his assessment of the witnesses’ credibility.

The standard of appellate review in cases where there is conflicting evidence in the transcript is set forth in the cases of Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). These cases hold that when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual base for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. The same standard of review is applicable to cases submitted on narratives of fact by the trial judge. See Gulling v. E.L Du Pont de Nemours and Company, supra.

Six of the seven members of the police jury at the time plaintiff was terminated testified at trial. They all testified there was a shortage of road funds and plaintiff was fired because of the shortage. They all denied that any political activity by the plaintiff served as a basis for his discharge. Four of the six testified they received news of the shortage of funds from the jury’s secretary-treasurer, Rodger Phillips. The only directly conflicting testimony was that of Phillips. He testified there was no shortage of road funds and Tyson had plaintiff discharged solely because of plaintiff’s opposition to him in the election. Phillips’ testimony was also contradicted to some extent by that of plaintiff’s nephew, Lee Lois Jones, who was a former police juror. Jones testified that when he was on the jury there was always a shortage of road funds. The trial judge obviously found that Phillips lacked credibility.

We conclude there was substantial evidence to support the trial court’s finding that plaintiff failed to prove he was terminated for political reasons. There was no manifest abuse of discretion in the trial court’s determination.

We acknowledge that some of the circumstantial evidence strongly supports plaintiff’s contention. However, there is insufficient evidence in the record as received by this court for us to find the trial court was clearly wrong. Because of the absence of a transcript we are bound by the trial judge’s narrative of facts and his summary of testimony and cannot go beyond what is contained therein to reach a different result. Succession of Seals, supra; Gulling v. E.I. Du Pont de Nemours and Company, supra.

Judgment AFFIRMED at appellant’s cost.

      . § 961. Political rights and freedom; restrictions forbidden; penalty; employees’ right to recover damages
      Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.
      Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.

        Nothing herein contained shall in any way be construed to prevent the injured employee from recovering damages from the employer as a result of suffering caused by the employer’s violations of this Section. [Emphasis added.]
      A discharged employee has a cause of action to recover damages for violations of this statute. See Davis v. Louisiana Computing Corp., 394 So.2d 678 (La.App. 4th Cir.1981).

      . C.C.P. 2131 provides:
      If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Eddie WALLACE, Appellant.
    Nos. 16361-KA, 16362-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      E. Roland Charles, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Eddie Wallace appeals as excessive, his sentence in each of these consolidated cases after pleading guilty to a reduced charge in each case. He was originally charged with aggravated burglary in one case which exposed him to a sentence of 30 years at hard labor. In the other case, he was charged with forcible rape which exposed him to 40 years at hard labor.

These charges were reduced to simple burglary and to sexual battery, and reduced his respective sentences to 12 years and 10 years at hard labor. He received sentences of four years at hard labor in each case, to run concurrently and with credit for time served.

Defendant forcibly entered the apartment of his former girlfriend and beat and raped her. Defendant was a first felony offender but had prior misdemeanor convictions for offenses against the person, such as simple battery.

The trial court complied with the CCrP Art. 894.1 guidelines, articulating aggravating and mitigating factors. Leniency granted under a plea bargain is a factor which may be considered by the sentencing judge. State v. Lanclos, 419 So.2d 475 (La.1982). A PSI report is in the record. The sentences, concurrent in each case, of four years at hard labor are not excessive and are AFFIRMED.