author: KNOLL, Judge.

text:
    Valerie Pye DICKINSON, Plaintiff-Appellant, v. Peter Charles DICKINSON, Defendant-Appellee.
    No. 83-1089.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writ Denied March 22, 1985.

      Paula Kobetz Woodruff, Lafayette, for' plaintiff-appellant.
    J.N. Prather, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

Valerie Pye Dickinson appeals a judgment in favor of Peter Charles Dickinson, decreasing child support for their two minor children in the sum of $1500, which was a lump sum payment in addition to monthly child support payments. The trial court did not decrease the monthly child support payments, but terminated the additional lump sum payment since Mrs. Dickinson used this lump sum payment to take the children to England every third year.

Mrs. Dickinson contends the trial court committed error in refusing to increase child support, and by reducing child support since Mr. Dickinson did not meet his burden of showing a change in the needs of the children or his ability to pay. We amend and affirm, finding the record does not support a sufficient change of circumstances to alter the original child support award.

FACTS

The parents of Valerie Dickinson and Peter Dickinson live in England. Valerie Dickinson and Peter Dickinson were married in London, England in July 1965. During their marriage, two children were born, namely Janette Susan and Michael Peter, ages fourteen and twelve respectively. Valerie Dickinson and Peter Dickinson were judicially separated in September 1977 by means of a default proceeding in favor of Valerie Dickinson, which incorporated the terms of a consent agreement between the parties. The judgment, based on the consent agreement, granted Valerie Dickinson the permanent care, custody and control of their two children and child support at the rate of $600 per month, plus an annual lump sum child support payment of $1500. The divorce was granted in January 1979, and incorporated the same child support provisions as mentioned in the judgment of separation.

In February 1983 Valerie Dickinson filed a rule for an increase in child support from $600 to $925 per month, for contempt of court, and for past due child support. Peter Dickinson reconvened, filing a rule for a decrease in child support. The matters concerning contempt and past due support were resolved before the hearing.

CHILD SUPPORT

The law and jurisprudence applicable to the case at hand are set forth herein. LSA-C.C. Art. 227 imposes upon the parents a mutual obligation of support, maintenance and education of their children. The amount of support is determined according to the needs of the children as well as the circumstances of those who are obligated to pay it. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980), writ denied, 383 So.2d 782 (La.1980). The trial court is vested with much discretion in fixing the amount of child support and such award will not be disturbed on review unless there has been a clear abuse of this discretion or manifest error in its factual appreciations. Trice v. Trice, 428 So.2d 1265 (La.App. 3rd Cir.1983). Children should enjoy the same standard of living they would have if they resided with the noncustodial parent. Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2nd Cir.1982); Prados v. Prados, 341 So.2d 1286 (La.App. 3rd Cir.1977). Children of separated or divorced parents are entitled to be maintained in the same manner as before the separation or divorce. Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3rd Cir.1983).

Agreements and judgments involving child support are always subject to modifications in accordance with the circumstances, regardless of language to the contrary. Lacassagne v. Lacassagne, 430 So.2d 818 (La.App. 5th Cir.1983). Inasmuch as child support awards are not permanent, courts can modify an award for such support where there is demonstrated a change in the needs of the children or in the ability of the father to pay. Norred v. Norred, 306 So.2d 799 (La.App. 2nd Cir.1975); Pettitt v. Pettitt, 261 So.2d 687 (La.App. 2nd Cir.1972); Bell v. Bell, 269 So.2d 270 (La.App. 3rd Cir.1972). It is well settled that the party seeking to modify a judgment awarding child support bears the burden of showing that there has been a change in circumstances of one of the spouses. Laporte v. Howell, 452 So.2d 420 (La.App. 3rd Cir.1984); Jordan v. Jordan, 432 So.2d 314 (La.App. 5th Cir.1983), writs denied, 438 So.2d 1111 (La.1983). A consent judgment of alimony or child support is not subject to modification unless a change of circumstances supporting the modification is proved. The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Howell, supra.

Where the current needs of the support obligee are determined from competent evidence, and it is shown that the support obligor has the ability to meet those needs because of increased earnings, this showing may be legally sufficient to warrant an increase in the support award. Jordan, supra. The earnings of a parent’s second spouse constitute a community asset and is to be considered in determining the amount of child support. Marcus v. Burnett, 282 So.2d 122 (La.1973).

In the instant case, Valerie Dickinson contends that she is entitled to an increase in child support because there has been an increase in both the needs of the children and Peter Dickinson’s ability to pay. The record contains no evidence to show what the children’s needs were at the time of the divorce decree to compare with the children’s present needs. Although Valerie Dickinson established a substantial increase in Peter Dickinson’s income, she failed to carry her burden of proving the current needs of the children. Therefore, we find the trial court correctly denied Valerie Dickinson’s rule for an increase in child support.

Valerie Dickinson further contends that the trial court erred in decreasing child support for the two minor children by terminating the annual $1500 lump sum child support payments. We agree. These payments were made subject to an agreement between Valerie Dickinson and Peter Dickinson, and incorporated in the judgment of separation. Instead of paying $725 per month child support, Peter Dickinson chose to pay $600 per month plus an annual lump sum of $1500 because he received funds at the end of the year from his business, “The After Dark.”

The record establishes that Valerie Dickinson, in compliance with the verbal agreement she had with Peter Dickinson, took the children to England once every three years to visit with both sets of grandparents at a cost of $4500 per trip; $4500 prorated over a three year period is $1500 per year. It is undisputed that the children had always gone to England and other places during Peter Dickinson’s marriage to Valerie Dickinson, and that Peter Dickinson and Valerie Dickinson verbally agreed that the annual $1500 lump sum payments would be used to finance the children’s trips to visit their grandparents in England at least once every three years.

A consent judgment fixing child support may not be modified absent a showing by the party seeking the modification, of a substantial change in circumstances supporting the modification. Howell, supra; Updegraff supra. Peter Dickinson offered no evidence of a substantial change in circumstances that would support a modification. Further, he made no showing of the children’s decreased needs or his decreased ability to pay. On the contrary, there is evidence of a substantial increase in his annual income since the judgment of separation was granted. Furthermore, Peter Dickinson has remarried and his present wife’s income is also to be considered in determining his obligation to support children of his first marriage. Marcus, supra. Their combined gross income for 1982 was approximately $53,000 as compared to Peter Dickinson’s income in 1979 of approximately $27,000. Valerie Dickinson’s present gross income is approximately $24,000 per year. We find that Peter Dickinson failed to carry his burden of proof. Accordingly, the trial court committed manifest error and abused its discretion in decreasing child support.

DECREE

For the foregoing reasons, we amend the judgment of the trial court to reinstate the original child support award. It is ORDERED, ADJUDGED AND DECREED that Peter Charles Dickinson pay unto Valerie Pye Dickinson child support at the rate of $600 per month plus an annual lump sum child support payment of $1500, for the support of the minor children, Janette Susan Dickinson and Michael Peter Dickinson. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellee, Peter Charles Dickinson.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    LACROIX, WARING AND DERBONNE, A PARTNERSHIP, Plaintiff-Appellee, v. Richard R. ANDERSON, Sr., Defendant-Appellant.
    No. 83-1097.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writs Denied March 22, 1985.

      Davis & Saybe, Michael H. Davis, Alexandria, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

This is a suit by a partnership known as LaCroix, Waring and Derbonne against a former partner, Richard R. Anderson, Sr., to enforce the terms of a partnership agreement claimed to have been entered into by Mr. Anderson.

Mr. Anderson became associated with the accounting firm of LaCroix, Waring and Derbonne in 1976 and became a partner in 1979. By July of 1980, the two senior partners, Mr. LaCroix, Sr., and Albert Waring, had retired, leaving Anderson, Roy Derbonne and Douglas LaCroix as the remaining partners in the firm. On October 1, 1980, Marvin Easley became a partner of the firm and, on January 1, 1981, Linda Brinkerhoff and Bob Lester became partners.

During the months of December 1980 and January 1981, the partners discussed drawing up a partnership agreement. The firm had operated without a written agreement since its inception.

A written agreement was drafted and signed by- five of the six partners in February 1981. Easley was out of town on the date of the signing. The agreement was left on Easley’s desk to sign, however, he never signed it. Partners, Derbonne, La-Croix and Brinkerhoff, did not learn of Easley's failure to sign until mid-April.

On April 21,1981, the defendant, Richard Anderson, advised Roy Derbonne that he, Marvin Easley and Bob Lester were leaving the firm and that they planned to practice together. Lester, Easley and the defendant withdrew from the partnership on May 7, 1981.

On May 9,1981, defendant removed from the firm office the files of clients which he was to continue to serve. The amount of the accounts receivable then owed by these clients and ultimately collected by Anderson was approximately equal to his capital account balance in the partnership. Subsequent to the withdrawal of the three partners, a number of meetings took place between the former and remaining partners in an effort to work out an equitable arrangement. In connection with these meetings, the defendant agreed to pay $350.00 a month toward the partnership obligation of approximately $1,200.00 a month owed to Albert Waring as retirement benefits. The defendant began paying Mr. Waring in July 1981.

The efforts to seek a financial settlement between the defendant and the partnership were unsuccessful. Consequently, the partnership sought to enforce the provisions of the partnership agreement against the defendant.

The partnership agreement, which the defendant Anderson signed, contained the following provision regarding a partner’s withdrawal:

“7-8. Withdrawal of Partner but No Retirement. If a partner withdraws from the partnership but intends to and does continue the practice of public accounting, either individually or in some arrangement other than as a part of this partnership, it is recognized that such withdrawing partner may take with him certain clients of the partnership for whose business the withdrawing partner shall compensate the remaining active partners. For purposes of determining the business value of each client of the partnership, the partners signatory hereto, or hereinafter, agree that the valuation of such client shall be the higher of 37 per cent of the preceding thirty-six (36) months’ billings or the total billings of the past twelve months.
If the withdrawing partner performs any accounting services including employment to any of the partnership’s current clients or clients served within the past three years within a twenty-four month period following his date of withdrawal, the withdrawing partner shall be obligated to pay his former partners in the aggregate, the value of each client for whom the withdrawing partner performs services or enters into an agreement to perform services within such twenty-four month period.
The withdrawing partner shall be entitled to his interest in the partnership as detailed in Article VII, Section 7-5. The amount due the partnership, as detailed above, for clients retained by the withdrawing partner will be offset against the amount due him under Article VII, Section 7-5. The difference will be payable six (6) months after withdrawal and each six (6) months thereafter until paid in full.
An accounting shall be provided by the withdrawing partner to his former partners and his records shall be available for inspection in the event any inquiry is made as to whether the withdrawing partner has performed any accounting services or has entered into an agreement to perform any accounting services for any of the clients who were formerly clients of the partnership.”

The matter was tried to a jury which determined that the defendant was obligated under the terms of the partnership agreement and that he owed the partnership $73,000.00. Judgment was rendered and signed in accord with the jury verdict. Defendant filed motions for a new trial and for judgment notwithstanding the verdict which were denied by the trial judge. Defendant appeals urging the following assignments of error:

1. The trial court erred in allowing the partnership agreement to be introduced into evidence before the jury, to make reference to the partnership agreement before the jury, and in instructing the jury that they could not find that the defendant could avoid the effect of the partnership agreement solely because Marvin Easley did not sign it.
2. The trial court erred by not offsetting the amount paid or to be paid on the Waring retirement against any liability of the defendant, and, likewise, the trial judge erred in failing to grant a motion for judgment notwithstanding the verdict whereby the Waring retirement payments made by the defendant would offset any of his liability.

SPECIFICATION OF ERROR NO. 1

The trial judge instructed the jury as follows:

“The law contemplates that generally people are bound by their agreements. In this case, contracts or agreements can be oral as well as written.
You may choose to believe or disbelieve that the purported partnership agreement is, or was, the contract between the parties.
You may find that the defendant, Richard Anderson, is bound or not bound in any way, by the purported partnership contract. However, I do instruct you as a matter of law, that he cannot avoid his obligation under the contract solely because Marvin Easley did not sign it.
You may choose to believe or disbelieve that the defendant, Richard Anderson, is not bound by all the terms of the contract if you find that there was a subsequent or later agreement between Richard Anderson and the plaintiffs in which they allowed Richard Anderson to withdraw from the partnership without being bound by all of the terms of the proported (sic) partnership contract.
If you find that the defendant, Richard Anderson, is bound by any terms of any contract or agreement, then you must determine whether or not he owes the partnership of the plaintiffs any money, and if so, how much.”

We find no error in the trial court’s admission of the partnership agreement in evidence. Defendant is shown to have executed the agreement freely and voluntarily in February of 1981 and the relevance of this document to the issues to be determined by the jury cannot be questioned. As we appreciate this specification of error, defendant’s principal contention is that the trial court committed prejudicial error when the jury was instructed that defendant could not avoid the contract “solely because Marvin Easley did not sign it.”

In support of this conclusion, defendant urges that the failure of Easley to sign the partnership agreement rendered the agreement ineffective because the element of “consent” necessary to the formulation of a contract was missing. Specifically, defendant posits that Easley’s failure to sign the agreement was indicative of the lack of consent on the part of Easley and in turn tainted the consent of the signatories to the document for they were under the mistaken impression that Easley would sign the document.

The record reveals that Easley had some reservations about the agreement from the beginning. In particular, Easley was concerned with the withdrawal provision’s applicability to him since he had brought his own clients to the firm and felt that if he left the firm he would not be taking away the firm’s clients. Easley testified that he procrastinated in signing the agreement because of the withdrawal provision. He added, though, that he felt it was assumed the partnership was operating under the terms of the written agreement during the months preceding his withdrawal. Defendant was fully aware of Easley’s reservations from the outset and certainly at the time he signed the agreement in February of 1981.

The other partners, including the defendant, did not question any of the terms of the agreement while negotiations were in progress. The defendant took no action to indicate an intention not to be bound by the terms of the document unless Easley also executed the agreement. Defendant did not question the binding effect of this agreement until he elected to withdraw from the partnership in April of 1981.

We observe that the validity of the agreement by its terms is not made contingent upon the signature of all the partners. To the contrary, the agreement sets forth in Section 13-2 that “each person executing this agreement and all amendments or supplements to it, binds and obligates himself, his spouse, his estate, and all persons claiming by, through, or under him.”

Civil Code Article 1816 provides in pertinent part as follows:

“Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract ...”

Civil Code Article 1817 provides in part as follows:

“Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation;

A partnership agreement is not required to be in writing except for a partnership in commendam and for immovable property to be owned by the partnership. La.C.C. Arts. 2806, 2841.

In Segura v. Louisiana Architects Selection Board, 340 So.2d 369 (La.App. 1st Cir.1976), writ denied, 342 So.2d 676 (La.1977), the court stated:

“[I]f the facts of the case reveal that the parties did not intend to be bound until the execution of a written document, no contract can exist until that event takes place. However, even when a written document is contemplated, if the parties intend to be bound by their original verbal agreement, then a contract subsists from that time, and the writing, if executed is a memorial of that agreement.” (Cites omitted)

In light of the above, we conclude that, under the particular facts and circumstances present in this case, the trial court did not err in instructing the jury that defendant could not avoid his obligations under the contract “solely because Marvin Easley did not sign it”.

SPECIFICATION OF ERROR NO. 2

The jury rendered a general verdict awarding plaintiff the sum of $73,000.00 as the amount due the partnership by defendant, the withdrawing partner. Although at the trial level plaintiff contended that defendant’s indebtedness exceeded this amount, plaintiff did not appeal nor answer the appeal and cannot now question the adequacy of this sum. On appeal, defendant does not question the total award but argues that the jury erred in not offsetting the award of $73,000.00 by the amount of the liability he assumed, as his percentage contribution to Albert Waring’s retirement benefits. In opposing this contention, ap-pellee posits that the jury considered the defendant’s obligation to Albert Waring in reaching its verdict and that the award constitutes the jury’s determination of appellant’s obligation to the partnership less his obligation to Albert Waring. For the reasons which follow, we find appellant’s contention meritorious.

Defendant’s answer alleged no facts which would entitle him to a setoff. Setoffs should be specifically pleaded and proven by the defendant. La.C.C.P. Art. 1005; National American Bank of New Orleans v. Purvis, 407 So.2d 754 (La.App. 1st Cir.1981). However, the pleadings were enlarged to include the affirmative defense of setoff by the introduction of evidence supporting this defense without objection. See Edwards v. Edwards, 282 So.2d 858 (La.App. 1st Cir.1973), writ refused, 284 So.2d 777 (La.1973).

Clearly, the retirement payments owed to Albert Waring are an obligation of the partnership. The partnership is primarily liable for that debt. La.C.C. Art. 2817.

There is no merit to plaintiffs contention that the jury considered the defendant’s obligation to Albert Waring in reaching its verdict and that the award constitutes the jury’s determination of appellant’s net obligation to the partnership. The jury did not render its verdict on special interrogatories. Therefore, when the jury determined that defendant was indebted to the partnership in the sum of $73,000.00 it must be assumed that this amount constituted the jury’s determination of defendant’s total indebtedness to the partnership. Inasmuch as the retirement payments owed to Waring are an obligation of the partnership and defendant is not individually liable therefor, the defendant is entitled to offset whatever amount he has contributed in that regard from the total award due to the plaintiff.

Accordingly, the judgment of the trial court is amended in part to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the defendant, Richard R. Anderson, Sr., is hereby condemned to pay the plaintiff, LaCroix, Waring & Derbonne, a partnership, the sum of SEVENTY-THREE THOUSAND ($73,000.00) DOLLARS, together with legal interest at the rate of twelve (12%) percent per annum from judicial demand until paid, less the total amount the defendant has contributed to the payment of Albert Waring’s retirement benefits.

In all other respects, the judgment appealed from is affirmed. Costs of this appeal are taxed one-half (V2) to appellee and one-half (V2) to appellant.

AFFIRMED IN PART, AMENDED IN PART AND RENDERED.

      . Mr. Easley's practice was very specialized; it dealt with cost reimbursement for hospitals and home health services. No other member of the firm had the expertise to handle the clients he served.

      . Civil Code Article 2802 provides:
      “The contract of partnership is governed by the provisions in the Title: Of Conventional Obligations, in all matters that are not otherwise provided for by this Title.”


author: CUTRER, Judge.

text:
    Carol Ann GEAREN, Plaintiff-Appellee, v. INSURED LLOYDS INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1140.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.

      Sheffield & Sheffield, David A. Sheffield, Alexandria, for plaintiff-appellant-appellee.
    Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for defendant-ap-pellee-appellant.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

The plaintiff, Carol Ann Null was a guest passenger in Paula Ann Maricle’s automobile when they struck the rear of a white Cadillac driven by Russel McKinnon and owned by Alexander Zajew. Null sued Maride and her insurer, Lloyd’s Insured Insurance Company (Lloyd’s), McKinnon and his alleged insurer, Allstate Insurance Company (Allstate), and Zajew. On a motion for summary judgment, Allstate was dismissed upon proof that it was not the insurer of McKinnon. McKinnon and Za-jew are also no longer parties to this suit due to Null’s failure to serve them with service of process. The only remaining defendants are Maride and her insurer, Lloyd’s. After suit was filed and before trial, Lloyd’s deposited $5,393.29 (the amount of Maricle’s liability coverage limit plus legal interest and court costs to the date of deposit) into the registry of the court. 'Null withdrew this sum prior to trial.

The trial court found that both Maride and McKinnon were negligent. He also found that McKinnon was uninsured. He rendered judgment against Maride and Lloyd’s, in solido, for $8,044.83 subject to a credit for the sums deposited by Lloyd’s. Maride and Lloyd’s appealed; Null appealed seeking an increase in damages.

The issues presented on appeal are:

(1) Whether the drivers of both automobiles were negligent. If McKinnon is found negligent, we must decide if he was an uninsured motorist, and
(2) Whether the trial court’s award was inadequate.

NEGLIGENCE OF MARICLE

This accident occurred at 9:30 P.M., on a straight and level portion of Louisiana Highway 165 between Forest Hill and Glenmora. The night was clear .and the roadway was dry. Maride, with Null as her guest passenger, was proceeding South approaching an area where a lounge is located. As these ladies were driving along at 55 miles per hour, they were talking. Null was looking down into her purse. Maride was looking toward Null. Null looked ahead and exclaimed, “Paula Mae!” Maride then looked ahead and saw, about twenty feet away, a white Cadillac stopped or moving slowly. Maricle’s car slammed into the rear of the Cadillac causing it to go across the road to the left ditch. The damage to the cars was heavy. Null received injuries to both arms and her face.

The accident occurred near the driveway of a lounge located on the East side of the highway. In front of the lounge and near the highway was located a large overhead flood light which was operating at the time of the accident. The area was well lighted and the white Cadillac was clearly visible. Null and Maride were unable to ascertain whether the tail lights and left-turn signal lights of the Cadillac were functioning at the time of the accident. This is understandable as neither of these persons were looking ahead until just an instant before this rear-end collision.

State Trooper Michael Migues was called to investigate the accident. He arrived at 10:02 P.M., and found the vehicle in front of the lounge but was unable to give the exact spot of the impact. He stated that he found that McKinnon was the driver of the white Cadillac. McKinnon told the officer that he had stopped, intending to make a left turn. He stated that he had his lights on along with the left-turn indicator, when he was struck from the rear by Mari-de. Due to the heavy damage to the Cadillac, the officer was not able to ascertain whether the lights were operable. The statement by McKinnon, that he was in the process of turning left is corroborated by the fact that the impact of the collision hurled his car -across the northbound lane of the highway and into the ditch on the West side of the highway. The officer issued a citation to Maride for failure to maintain proper control.

The trial court, in its reasons for judgment found Maride negligent, stating as follows:

“[T]he Court is obliged to determine that the obvious and overwhelming cause of the accident was the negligent manner in which Paula Mae Maride was operating her vehicle, and that her negligence was, to say the least, a proximate cause of the accident.”

There is no need to cite any authority for finding Maride negligent. She was completely inattentive and oblivious to the traffic conditions ahead of her as she proceeded along at 55 miles per hour. She struck the McKinnon car instantaneously after looking ahead, causing heavy damage to the vehicles. As the trial court stated, Maricle’s negligence was “obvious and overwhelming.”

As to any negligence of McKinnon, the trial court stated as follows:

“The only evidence indicating any negligence on the part of McKinnon are the statements of the occupants of the rear ending vehicle to the effect that the car in front of them appeared to be stopped, together with the statement made by McKinnon to the investigating officer shortly after the accident to the effect that he had stopped to make a left turn. There was no evidence as to how long he had been stopped prior to the impact or why he was stopped. Although the evidence is very thin on this point, the Court concludes that McKinnon’s action in stopping his vehicle under all prevailing conditions gives rise to the presumption of some negligence on his part which contributed to this accident, .... ”

We disagree with the trial court that McKinnon’s stopping to make a left turn creates a presumption of negligence by McKinnon.

It is well settled that a left-turning driver is charged with an exceptional duty of care. There is no presumption, however, that the driver of a left-turning vehicle is negligent. Whether there has been a breach of duty by the left-turning driver must be proved. In determining whether a left turn can be made in safety, the left-turning motorist has a right to assume that the following motorist will observe the duties imposed upon him by law and common sense. Thus, he may assume that the following motorist will keep a proper lookout and keep his car under proper control. Natchitoches Motor v. Travelers Ins. Co., 372 So.2d 811 (La.App. 3rd Cir.1979).

The trial court’s finding that McKin-non’s stopping to make a left turn created a presumption of negligence was error. There is no proof that the stop was made suddenly or that his position was not visible to a driver keeping a proper lookout. The mere stopping to make a left turn was not negligence. McKinnon had a right to assume that Maride was keeping a proper lookout to ascertain his presence and was keeping her car under proper control to meet the existing circumstances.

Maride, however, was not keeping a proper lookout. On the contrary, she was completely inattentive as to McKinnon’s procedure to make a left turn. This inattentiveness continued until an instant before the impact and it was too late for Maride to avoid the accident.

The sole cause of the accident was the overwhelming negligence of Maride. The plaintiff, under the circumstances, has failed to show that McKinnon was negligent.

Having come to this conclusion, it is not necessary that we decide whether McKin-non was uninsured.

DAMAGES

As a result of the collision, Null sustained a fracture of a bone in the left wrist and a fracture of the metacarpal bone in the right hand. She also received a laceration of the lower lip and facial bruises. She went to see Dr. Douglas Gamburg who placed her right hand in a short arm cast. He placed a long arm cast on the left wrist and arm. She was allowed to return home. He gave her medication for pain.

He was of the opinion that these injuries would produce moderately severe pain for the first few days with a gradual reduction of pain thereafter. Null returned to Dr. Gamburg on May 13, 1981. She had no particular complaints of pain but only of discomfort and Dr. Gamburg felt that she was progressing normally. She returned to Dr. Gamburg on May 27, 1981. She had no particular complaints and was progressing well. This physician removed the long arm cast and replaced it with a short arm cast. The short arm cast on the right arm was replaced with a removable splint which could be removed for washing or bathing. X-rays revealed a satisfactory alignment of the fracture.

Dr. Gamburg saw Null again on June 8, 1981 (five weeks post injury). She had no specific complaints at that time. Her right hand had a full range of mobility with some swelling. On a visit to the physician on June 30th, the remaining cast was removed. Null saw this physician for the last time on July 21, 1981, at which time she had progressed very well. He felt that she was approaching full recovery and he discharged her on that date. He felt that she could return to light duty at that time and would progress to heavier activity. He stated that the recovery was satisfactory with only a 5% potential disability of the left arm. The cut on Null’s lower lip healed, leaving only a small scar. Null returned to work the day after her release, July 22, 1981.

The trial judge awarded $1,276.03 medical expenses and $1,768.30 for loss of wages, or a total of $3,044.83 special damages. He also awarded $5,000.00 general damages. In his reasons for judgment, he stated as follows:

“With regard to general damages, plaintiffs own treating physician indicated she had made an excellent recovery from her injuries with no disability in her arm, but determined a 5% potential disability involving loss of physical function relating to possible loss of movement during weather change and possible degenerative arthritis in later life. There was a very slight scaring on the lower right lip which is discernable upon inspection.”

We find no abuse of discretion by the trial court in its award for general damages. In reviewing a trial court’s determination of general damages, we are charged with honoring the “much discretion” afforded the factfinder. We may not substitute our subjective belief as to appropriate damages due; rather, the finding below is to be honored in the absence of a “clear abuse of discretion.” Roque v. State Farm Mut. Auto. Ins. Co., 445 So.2d 506 (La.App. 3rd Cir.1984). Although it appears that the $5,000.00 award is on the low side, we cannot find that that amount is a clear abuse of the trial court’s discretion.

Having come to these conclusions, we shall amend the judgment of trial court, limiting the liability of Lloyd’s to the $5,000.00 liability coverage. Judgment for the remainder shall be rendered against Maride, individually.

For these reasons, the judgment of the trial court is amended so as to limit the “in solido” judgment against Paula Mae Mari-de and Insured Lloyd’s Insurance Company to $5,000.00. The remainder of the judgment, $3,044.83, is to be paid by Mari-de, individually. In all other respects the trial court judgment is affirmed.

Since Lloyd’s tendered its policy limits ($5,000.00) plus legal interest and costs up to the date of deposit, it cannot be cast for further interest and costs. Liwerant v. Boston Insurance Company, 198 So.2d 925 (La.App. 4th Cir.1967). Thus, costs of the trial court and this appeal are to be borne by Maride.

AMENDED AND AFFIRMED.

      . At the time this suit was filed, plaintiffs name was Carol Ann Gearen. Since that time she has married and is now Carol Ann Null.

      . McKinnon was not called to testify at trial.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Tommy LASSEIGNE, Defendant-Appellant.
    No. CR84-277.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Richard T. Haik, Haik, Haik, Minvielle & Patout, New Iberia, for defendant-appellant.

      J. Phil Haney, Asst. Dist. Atty., St. Mar-tinville, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   LABORDE, Judge.

Defendant appeals his conviction, sentence, and fine for drug offenses. We find no error. We affirm.

FACTS' AND PRIOR PROCEEDINGS

Late on the evening of May 5, 1982, defendant Tommy Lasseigne allegedly sold 100 diazepam tablets to Carl Seneca. Defendant was arrested for this offense shortly after midnight on May 6, 1982, at his home in Breaux Bridge. He signed a form granting permission to the arresting officers to search his residence at that time. The officers’ arrest report indicates that they discovered and seized hashish, methaqualone (Quaalude tablets), marijuana, and money alleged to be the proceeds of drug sales.

Defendant was charged by bill of information with six separate offenses:

1. Distribution of Diazepam, a schedule IV controlled substance, in violation of LSA-R.S. 40:969(A)(1), which carries a penalty of imprisonment at hard labor for not more than 10 years and a possible fine of not more than $15,000.
2. Possession with intent to distribute diazepam, a schedule IV controlled substance, prohibited by LSA-R.S. 40:969(A)(1) with the corresponding penalty.
3. Possession of Butalbital, a schedule III controlled substance, in violation of LSA-R.S. 40:968(C), which carries a penalty of not more than 5 years imprisonment with or without hard labor and a possible fine of not more than $5,000.
4. Possession of Codeine, a schedule III controlled substance, prohibited by LSA-R.S. 40:968(C) with the corresponding penalty.
5. Possession with intent to distribute marijuana, a schedule I controlled substance, in violation of LSA-R.S. 40:966(A)(1), which carries a penalty of imprisonment at hard labor for not more than 10 years and a fine of not more than $15,000.
6. An additional count of possession with intent to distribute marijuana.

Defendant retained an attorney to represent him. His attorney filed a motion for a bill of particulars, a motion to suppress the seized evidence, and a motion for a preliminary examination.

Defendant initially pled not guilty to the six charges against him. However, on October 14, 1982, defendant appeared in court with counsel and pled guilty to charges (1), (2), and (5), set forth above, with the understanding that the state would then dismiss charges (3), (4), and (6). The trial judge questioned defendant, and was satisfied that defendant knowingly, intelligently, and voluntarily waived all rights he would have retained had he pled not guilty, that defendant understood the charges to which he was pleading guilty, and that defendant was aware of the consequences of his guilty plea, including the maximum penalty that could be imposed. The trial judge found sufficient evidence to substantiate defendant’s guilty plea. He accepted the plea, and ordered a presentence investigation.

On January 21, 1983, defendant retained new counsel and filed a motion to withdraw his plea of guilty. Defendant contended that his guilty plea was given ignorantly, and, according to appeal counsel, under the mistaken impression that the plea would be contingent upon the outcome of the suppression hearing.

On July 1, 1983, the trial judge denied defendant’s motion to set aside the guilty plea. This judgment was based on the allegations of defendant’s motion and the only evidence presented in support of that motion: the record of the court proceedings wherein defendant entered his guilty plea.

On December 5, 1983, defendant appeared in court with new retained counsel (his third attorney) for sentencing. The trial judge sentenced defendant to five years imprisonment at hard labor for each of the three counts to which he had pled guilty, and ordered.' the sentences to run concurrently. Additionally, defendant was fined $5,000.00, with the stipulation that defendant serve an additional year in prison should he not pay the fine.

Defendant appeals his conviction and sentence. He specifies two errors in the trial court. Defendant contends:

(1) The trial court erred by refusing to allow defendant to withdraw his guilty plea.
(2) The sentence imposed by the trial court is excessive.

We will separately consider each of these properly assigned and briefed specifications of error.

WITHDRAWAL OF GUILTY PLEA

Defendant argues that he has an unfettered constitutional right to withdraw his guilty plea at any stage of the proceedings prior to sentencing. Defendant does not, however, cite any authority that supports such a broad proposition. If defendant had shown to the trial judge or could show on appeal that his guilty plea was the product of duress, coercion, or ignorance, and not the result of a knowing and intelligent waiver of carefully explained constitutional rights, then we would find that the original guilty plea was not given under circumstances that meet constitutional guidelines, and we would set aside defendant’s plea of guilty. See, e.g., Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); State v. Galliano, 396 So.2d 1288 (La.1981). In such a case, whether the defendant raises the issue before or after sentencing is irrelevant: constitutionally infirm guilty pleas may be attacked at any time. Galliano, 396 So.2d at 1289.

.In this case, however, defendant has not shown in the trial court nor on appeal that his guilty plea does not meet constitutional guidelines. Under the circumstances of this case, the trial judge could have permitted defendant to withdraw his guilty plea. Code of Criminal Procedure article 559 provides, in part: “The court may permit a plea of guilty to be withdrawn at any time before sentence.” On review, we grant great deference to the trial judge’s decision to allow or to disallow the withdrawal of a guilty plea under article 559, if the circumstances surrounding the plea of guilty meet the constitutional guidelines. Unless the trial judge has abused his discretion under article 559, we will not disturb his decision. State v. Jenkins, 419 So.2d 463, 466 (La.1982); State v. Johnson, 406 So.2d 569, 571 (La.1981). Under the circumstances of this case, there is no abuse of discretion.

EXCESSIVENESS OF SENTENCE

Since July of 1982, the Courts of Appeal of Louisiana have had jurisdiction to review sentences in criminal cases. See La. Const, art. V, sec. 10 (amended 1980). This task was formerly performed solely by the Louisiana Supreme Court.

Under our state constitution, an excessive sentence is prohibited. See La. Const. art. I, sec. 20; State v. Sepulvado, 367 So.2d 762 (La.1979); see also Note, Appellate Review of Excessive Sentences in Non-Capital Cases, 42 La.L.Rev. 1080 (1982). Therefore, when we review a sentence, we must carefully examine the length and terms of the sentence for excess.

The trial judge in the present case set forth, in his sentence, a rationale for its length and imposition. Under Louisiana law, he is, of course, required to do so. La.Code Crim.Proc. art. 894.1(C). If the trial judge does not articulate reasons for the imposition of an “apparently severe sentence,” we will vacate and remand for resentencing in accordance with article 894.1. State v. Jones, 381 So.2d 416, 418 (La.1980) (emphasis in original). The trial judge in the present case followed the mandate of article 894.1 that requires a trial court to individualize a defendant’s sentence to the particulars of the crime. However, facial compliance by the trial judge with article 894.1 does not end our constitutionally mandated inquiry; we must ensure that the sentence imposed is justified under the facts and under article 894.1.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court reviewed for excessiveness a sentence that was rendered by a trial judge after the trial judge ostensibly had complied with article 894.1 by setting forth a rationale for the imposed sentence. The Court distinguished between review for compliance with the order of article 894.1 that the sentence must be supported by stated reasons, and review for excessiveness, noting that excessiveness in sentencing is a question of law within the realm of an appellate court. 367 So.2d at 764. Further, “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment_” Id. at 767. Put simply, even though a penal statute and its corresponding penalty provision pass constitutional muster as facially valid law, and even though a trial judge ostensibly has followed article 894.1, a sentence may be unconstitutionally excessive in light of the facts of the particular case. Sepulvado proceeded to examine the appropriateness of the sentence in that case by reference to the sentences imposed in other cases of the same nature. 367 So.2d at 768 nn. 5 & 6, 772-73. The examination focused upon whether the defendant’s sentence represented “a clear abuse of the trial court’s sentencing discretion which violates defendant’s right against excessive punishments, La. Const. art. 1, section 20.” 367 So.2d at 773. We will now examine the sentence in the present case.

We initially note that each of the three offenses to which defendant pled guilty carries a maximum possible sentence of ten years imprisonment at hard labor plus a $15,000.00 fine. Thus, in a case with appropriate facts involving a defendant with an appropriate background, a total of thirty years imprisonment at hard labor and a $45,000.00 fine could be imposed. The facts of this case and the background of this defendant do not warrant such harsh punishment, but the facts and background in this case do support the sentence and fine actually imposed, in light of the sanctions imposed in similar cases.

Defendant is a healthy man, thirty years old, with no dependents. His involvement in the drug trade apparently has not been limited to the immediate offenses. Defendant also has a prior conviction for possession of marijuana. It is undisputed that defendant had a large amount of various controlled substances in his possession at the time of his arrest. Defendant may not be an “international drug conspirator,” but he certainly was not an inconsequential figure in local drug trafficking at the time of his arrest. Defendant also threatened the officers and informant involved in his arrest while he was out on bail. In State v. Beatty, 391 So.2d 828 (La.1980), the Louisiana Supreme Court upheld concurrent five-year sentences for two counts of possession with intent to distribute marijuana. Beatty was also a plea bargain case. The court noted that the defendant had a prior felony conviction, though this conviction had occurred many years before the offenses in question. Id. at 832. The Beatty defendant also acted improperly while out on bail — he did not threaten anyone, but he was arrested again for possession of marijuana. Id. at 832. Further, defendant in Beatty was physically disabled and in poor overall health. Id. at 833. The slightly more severe sanctions in the present case are not excessive when compared with Beatty, especially in light of the greater variety and quantity of drugs involved in this case. In State v. Jacobs, 383 So.2d 342 (La.1980), defendant was convicted of one count of possession of marijuana and two counts of distribution of marijuana, and sentenced to a total of ten years and six months imprisonment plus a $30,500 total fine. The Louisiana Supreme Court upheld the sentence because of evidence of defendant’s continued involvement in the drug trade, at least for a year prior to his conviction. Id. at 345. In comparison with the Jacobs sentence, the present defendant, under similar circumstances, received light treatment. See also State v. Underwood, 365 So.2d 1339 (La.1978); State v. Lukefahr, 363 So.2d 661 (La.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979).

SUMMARY

The trial judge did not err by refusing to allow defendant to withdraw his guilty plea. The sanctions imposed are not excessive. There is no error. We affirm defendant’s conviction, sentence, and fine.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Glenn Earl BESSARD.
    No. CR84-280.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 17, 1985.

      J. Nolan Sandoz, Sandoz, Sandoz & Schiff, Bertrand DeBlanc, Sr., Abbeville, for defendant-appellant.
    Calvin E. Woodruff, Asst. Dist. Atty., Abbeville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

The defendant, Glenn Earl Bessard, was •charged by a bill of information with the crime of attempted first degree murder, a violation of La.R.S. 14:27 and 14:30.

On February 17, 1983, a written plea of not guilty was entered by defendant’s retained counsel, and on April 27-29 the defendant was tried before a twelve person jury and found guilty as charged by a 10-2 vote.

On December 1, 1983, after a hearing, the court denied a motion for a new trial. On January 30, 1984, the defendant was sentenced to serve a term of fifteen years in the custody of the Louisiana Department of Corrections.

FACTS:

The defendant’s conviction arose from the attempted shooting of Officer Dan Curtsinger of the Abbeville Police Department on March 8, 1981, at the Abbeville Police Station.

According to the testimony of Officer Dalton Toups, during the evening hours of March 8, 1981, police officers Dan Curt-singer, Dalton Toups, Danny Theall and Mickey Toups responded to a call to go directly from the Abbeville Police Station to the Tearoom Lounge, located on the corner of Graceland and Miles in the city of Abbeville. They were responding to a call concerning a fight at the Tearoom Lounge. Upon arrival, they saw the defendant outside, walking into the Tearoom carrying a baseball bat. After entering the Tearoom Lounge, the officers talked to the proprietor concerning a fight between the defendant and Joseph “Cucumber” Pitre, which had taken place earlier.

Officer Theall then asked the defendant for the baseball bat, the defendant gave it to him and then walked out of the bar. The officers followed him outside and told him he was under arrest, the defendant mumbled something and walked away. The officers followed him and told him to stop because he was under arrest. The defendant continued walking away, the officers then grabbed him and the defendant struggled, but was finally handcuffed. The defendant then refused to enter the police car so he was forced to bend over and be pulled in by the handcuffs.

At the police station he was taken to the booking room, where the incident occurred. In the booking room his handcuffs were removed and he was asked to sit down. The defendant refused to sit down. The officers asked him to be seated a second time. The defendant responded by slapping the chair away and threatening to kill Officer Curtsinger.

A scuffle then ensued and the defendant momentarily broke free from the officers. They finally regained control of the defendant, who was restrained in a sitting position on the floor. Officer Dalton Toups was directly behind the defendant trying to restrain him, while Officer Curtsinger was directly in front of the defendant trying to restrain his feet.

At this point the defendant reached behind him and pulled a revolver from the holster of Officer Toups. The defendant then pointed the gun directly ahead at Officer Curtsinger. The muzzle of the gun was about fifteen (15) inches from the chest of Officer Curtsinger. The defendant had his finger on the trigger and the hammer was partially pulled back, indicating the defendant was attempting to fire it. Officer Curtsinger then grabbed the cylinder of the gun to keep it from firing, while trying to turn the weapon away from himself. The officers then managed to twist the weapon out of the defendant’s hands. The defendant was then laid face down on the floor.

The defendant specifies four assignments of error on this appeal.

ASSIGNMENT OF ERROR NO. 1:

The defendant argues that the trial court erred in denying defendant a continuance or reasonable time to procure new counsel to replace his already privately retained counsel, Patricia Thomas. At the time this motion was made, all the evidence had been presented to the jury and the court was awaiting closing arguments.

The defendant relies on Article 1, Section 13 of the Constitution of Louisiana of 1974 which states in part:

“... In a criminal prosecution an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceeding, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment ...”

The defendant contends that he was entitled to the counsel of his own choosing at every stage of the proceedings.

During the trial, after presentation of the evidence, but before closing arguments, the defendant no longer desired the representation of his retained counsel, Patricia Thomas. Although the defendant cites no case authority, he argues that La. Const. Art. I, § 13 allows a defendant to obtain a mandatory continuance once the trial proceedings have begun.

The Louisiana Supreme Court, in State v. Leggett, 363 So.2d 434 at 436 (La.1978), has addressed this precise issue. In Leggett, the Court stated that while both federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge, this right does not permit arbitrary action which obstructs orderly procedures in the courts. The Supreme Court in Leg-gett further states:

“... the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge ...” 363 So.2d 434, at 436.

This rule should be followed in the present case.

In the case at hand, defendant’s motion for continuance or reasonable time to procure another attorney was made after the presentation of the evidence to the jury. This is not an appropriate stage for the defendant to demand a continuance to procure another attorney. In State v. Austin, 258 La. 273, 246 So.2d 12 (1971), the Supreme Court stated:

“To permit the accused to discharge his court appointed counsel on the day of trial without any showing of incompetence and without having a privately retained attorney present to take his place, would be to permit the defendant to choose which lawyer the court must appoint to defend him. We are not aware of any basis in law for such a claim upon the State or upon members of the bar.”

In the present case, the defendant waited until all the evidence was presented to the jury and closing arguments were about to begin. In Austin, the Court found that the first day of trial was too late a stage to discharge an attorney. Clearly then, once the trial has proceeded to closing argument and all the evidence is in, the defendant has no mandatory right to a continuance to look for a new attorney. Once the trial has begun, the question of withdrawal of counsel rests entirely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973). As a result, the trial court in the present case had the discretion to allow or deny defendant a reasonable time to procure another attorney.

The record of the trial court indicates that the Judge called defendant’s counsel, Patricia Thomas, to the witness stand and questioned her about her representation of the defendant. Through this questioning, the court determined that Patricia Thomas had adequately and competently represented the defendant. The court then ordered defendant’s counsel to continue the defense of her client.

The defendant specifically argues that the defense counsel’s failure to call witness Junius Lewis to the stand should be grounds for the court to allow him a reasonable time to hire a new attorney. This is a matter of trial strategy on the part of the defense counsel. The court determined this was a reasonable strategy considering the lack of credibility of the witness and the fact he had not seen the attempted shooting.

This strategy move did not reflect negatively on the competency of defendant’s counsel as viewed by the court. As a result, it was clearly within the discretion of the court to deny defendant extra time to procure another attorney.

Consequently, this assignment of error is' without merit.

ASSIGNMENT OF ERROR NO. 2:

The defendant contends that the trial court erred in denying the motion for a new trial based on the contention that the verdict was contrary to the law and the evidence in that there was no evidence whatsoever presented of two essential elements of the offense charged, to-wit: an overt act tending directly toward the attempted murder of Officer Curtsinger and a specific intent to kill or inflict great bodily harm on Officer Curtsinger.

The crime for which defendant was convicted is attempted first degree murder, which is defined in La.R.S. 14:27 and La. R.S. 14:30 as follows:

“§ 27. Attempt
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.
§ 30. First degree murder.
First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties.”

Specifically, the defendant asserts that there was no evidence presented of two essential elements of the crime of attempted first degree murder: (1) an overt act tending directly toward the accomplishment of the crime and (2) a specific intent on the part of the defendant to kill or inflict great bodily harm.

The standard of review to be applied in appellate review of the issue of sufficiency of the evidence to support a conviction is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty. Jackson v. Vir ginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Austin, 399 So.2d 158 (La.1981).

At trial, extensive evidence was presented showing that the defendant, while refusing to be seated for booking procedures at the Abbeville Police Station, attempted to punch Officer Curtsinger. This started a scuffle between defendant and four police officers. During this scuffle the defendant pulled a revolver from the holster of an officer trying to restrain him, pointed it at Officer Curtsinger’s chest and attempted to fire the weapon.

The State presented direct testimonial evidence from the four police officers involved in the scuffle. Dalton Toups, the officer who was wearing the gun in his holster when the defendant grabbed it testified that while he and the three other officers were trying to calm down the defendant by restraining him in a sitting position on the floor, the defendant reached around behind, pulled Officer Toups’ revolver from its holster, and pointed it directly at Danny Curtsinger. Officer Toups further testified that the defendant tried to pull the trigger because his finger was on the trigger and the hammer was pulled back. At this time the weapon was no more than 15 inches from Officer Curtsinger with the muzzle pointed directly at Officer Curtsinger’s chest.

Officer Dan Curtsinger also testified that the defendant grabbed Officer Toups’ revolver and pointed it directly at his chest while attempting to pull the trigger.

Mickey Toups, who was a police officer at the time of this incident also testified that he saw the defendant holding the gun, pointing it directly at Dan Curtsinger’s chest. The defendant had his finger on the trigger and the hammer was pulled back.

In view of this extensive, direct testimonial evidence of Dalton Toups, Dan Curtsinger and Mickey Toups, it appears that when it is viewed in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant committed an overt act in an attempt to murder Dan Curtsinger, a police officer engaged in the lawful performance of his duties.

The defendant also contends that the State did not present any evidence to prove that the defendant had the specific intent to kill Officer Curtsinger.

La.R.S. 14:10(1) states:
“§ 10. Criminal intent
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.”

Specific intent is a state of mind and can be proven directly as a fact or it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Boyer, 406 So.2d 143 (La.1981); State v. Daigle, 440 So.2d 230 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 123 (La.1984).

The record of the trial court includes direct testimonial evidence that the defendant told Dan Curtsinger he was going to kill him. Curtsinger testified that the defendant said he was going to kill him.

Mickey Toups also testified that he heard the defendant threaten to kill Officer Curt-singer.

Officer Dalton Toups also testified that he had heard the defendant tell Officer Curtsinger “I’m going to kill you.”

At the time defendant was making this threat, he was pointing the revolver directly at Curtsinger and was attempting to pull the trigger when the officer grabbed the gun. In view of this direct testimonial evidence, it appears that when it is viewed in a light most favorable to the prosecution, any rational trier of fact could have found that the defendant had the specific criminal intent to murder Officer Dan Curtsinger while he was engaged in the lawful performance of his duties.

In summary, considering the evidence presented at trial in the instant case, when viewed in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that by grabbing the revolver and attempting to shoot Officer Curtsinger, the defendant not only committed an overt act tending directly toward the attempted murder of Officer Curtsinger, but also had the specific intent to kill or cause great bodily harm.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3:

The defendant contends that his personal absence at arraignment while his retained counsel entered a written plea of not guilty invalidates the entire proceedings according to the case of State v. Pope, 214 La. 1026, 39 So.2d 719 (1949). This argument is totally without merit. Article 555 of the Louisiana Code of Criminal Procedure states:

“Art. 555. Waivers
Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”

This article has been followed in several cases. In State v. Sears, 298 So.2d 814 (La.1974), the Louisiana Supreme Court stated:

“It is true every defendant has a right to be arraigned. C.Cr.P. 551. However, where a defendant enters upon trial without objecting to the defect, he is deemed to have waived his right under La.C.Cr.P. Art. 555. ... Moreover, the defendant does not contend nor show that any prejudice resulted from the entering of the plea of not guilty.”

In the instant case, on February 17,1982, the defendant’s retained counsel waived formal arraignment and entered a written plea of not guilty. The minutes further reflect that the defendant and his counsel proceeded to trial on April 27, 1983, without making any objection to defendant’s absence at the arraignment. There was testimony in the hearing on a motion for new trial that the defendant had told his retained counsel, Patricia Thomas, what he was charged with before she entered the plea of not guilty.

Applying La.C.Cr.P. Art. 555 and State v. Sears, 298 So.2d 814 (La.1974), the defendant has waived his right to object to any irregularities in the arraignment.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4:

The defendant contends that the State used peremptory challenges to systematically exclude three black persons from serving on the petit jury and claims this procedure has been used over a period of time in Verimilion Parish to deny black defendants equal protection of the laws according to Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The Louisiana Supreme Court has addressed this particular issue in State v. Francis, 403 So.2d 680 (La.1981). In Francis, the Court examined Swain v. Alabama, supra. In Swain, the United States Supreme Court held that a showing by the defense that peremptory challenges were used to exclude members of a minority in a particular case was not sufficient to establish a violation of the due process clause of the Fourteenth Amendment.

In Francis, the Court stated:
“To present a constitutional question, the defendant must show systematic exclusion of the minority by the state over a period of time through the use of peremptory challenges. The record must show with ‘[some] acceptable degree of clarity ... when, how often, and under what circumstances the prosecutor alone has been responsible for striking [the minority].’ 380 U.S. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 775.”

In the present case, the defendant has failed to demonstrate that there has been a systematic exclusion of blacks from the petit jury over a period of time. During the hearing on a motion for new trial, the only evidence defendant presented of systematic exclusion of blacks from the petit jury was the testimony of defense counsel Patricia Thomas. Thomas testified that she was involved in one other case in which blacks were peremptory challenged, but she could not recall how many. Other than the testimony of Patricia Thomas, the defense did not present any evidence of the systematic exclusion of black persons from juries in Vermilion Parish or the State of Louisiana. Consequently, the defendant fails to meet the requirements of Swain which places the burden on the defendant to show systematic exclusions of a minority from serving on juries over a period of time.

This assignment of error is without merit.

For the above and foregoing reasons the conviction and sentence of the defendant is affirmed.

AFFIRMED.

      . Although reviewing courts are obliged to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second guessing" the triers of fact. See State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983), concurring opinion at 1321, and State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion at 223, writ denied, 444 So.2d 1241 (La.1984).


author: KLEES, Judge. REDMANN, Chief Judge,

text:
    CARLIN COMMUNICATIONS, INC. v. SOUTH CENTRAL BELL TELEPHONE CO.
    No. CA-2489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1984.
    Rehearing Denied Jan. 24, 1985.

      Michael S. Fawer, Marie 0. Riccio, Fawer, Brian, Hardy & Zatzkis, New Orleans, for plaintiff-appellee Carlin Communications, Inc.
    Charles W. Lane, III, Veronica A. Cubit, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, and George W. Byrne, Jr., New Orleans, for defendant-appellant South Central Bell Telephone Company.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   KLEES, Judge.

This is an appeal of two separate orders relating to preliminary injunctions. On March 27, 1984, appellee Carlin Communications, Inc. (Carlin) sought injunctive relief in the Orleans Parish Civil District Court against the threatened termination of its Dial-It telephone service by appellant South Central Bell (SCB). Carlin feared termination because the tariff under which the Dial-It service was operated allowed SCB to discontinue a subscriber’s service any time the subscriber transmitted a message that SCB deemed “obscene or sexually explicit.” Carlin claimed that this portion of the tariff was unconstitutional. After an adversary hearing, the district court refused to issue the injunction, holding that the recorded message Carlin intended to transmit to its Dial-It service customers was patently obscene and therefore devoid of constitutional protection.

Two days later, Carlin transmitted over its service a message essentially similar to the one the court had termed obscene, and SCB immediately disconnected Carlin’s Dial-It service. Claiming that this transmission was the result of a clerical error, Carlin sought a preliminary injunction ordering SCB to reinstate its Dial-It service. This time, the district court issued the injunction, holding that the SCB tariff was unconstitutional to the extent that it would permit the telephone company to terminate a subscriber’s Dial-It service on the basis of a single tariff violation caused by clerical error. In addition to ordering Carlin’s service reinstated, however, the district court ordered that civil penalties in the amount of $20,000 per day plus $1 per message be imposed if Carlin ever again transmitted a message of the type that the court had declared obscene.

Carlin and SCB are each appealing both rulings of the lower court. SCB asserts not only that its tariff provision is constitutional, but also that the district court erred in its initial determination, made after the first hearing, that SCB’s actions pursuant to the tariff constituted “state action” for purposes of the 14th Amendment. Carlin, on the other hand, asserts that the penalties prescribed by the district court pose an unconstitutional restraint on its freedom of speech, and also that the court erred in refusing to enjoin SCB from disconnecting Carlin’s Dial-It service.

The issues presented on appeal are: (1) Whether SCB’s termination of Carlin’s Dial-It service constitutes “state action”; (2) Assuming state action, whether the tariff provision that authorizes SCB to discontinue a subscriber’s Dial-It service upon the transmission of a sexually explicit message is constitutional; and (3) Whether this tariff provision has been preempted by federal law. This court finds that SCB’s action must be considered “state action” for purposes of the 14th Amendment. Furthermore, we find that the tariff pursuant to which SCB acted is not in violation of the constitution, nor is it preempted by federal law.

FACTS

SCB is a public utility regulated by the Louisiana Public Service Commission (LPSC); the services it provides and the rates it charges within Louisiana are governed by tariffs on file with the Commission. LSA-R.S. 45:1161 et seq. Insofar as it deals in interstate and foreign communications, SCB is also a common carrier subject to the jurisdiction of the Federal Communications Commission (FCC). 47 U.S.C. § 151 et seq.

Carlin is a New York corporation engaged in the business of providing “Dial-It” telephone service to telephone company customers throughout the nation. Dial-It, a trademark of AT & T, allows an information provider such as Carlin to contract with the local telephone company for one or more access lines which, when connected to equipment located on the information provider’s premises, permit callers to receive pre-recorded messages. The caller is charged a predetermined amount for the call (e.g., 50 cents), which appears on his local phone bill; periodically, the phone company remits a specified percentage of this revenue to the Dial-It subscriber. Well-known examples of Dial-It services in-elude Time, Weather, Dow Jones stock market quotations, Dial-a-Prayer and Dial-a-Joke.

In 1983, SCB began considering offering local Dial-It service in the New Orleans area (Area Code 504), which would require amending its General Subscriber Services Tariff on file with the LPSC. About this time, SCB began having discussions with Carlin as a potential Dial-It subscriber. The evidence suggests that Carlin knew from the'inception of these discussions that South Central Bell would not permit operation of a Dial-It line similar to Carlin’s High Society Hotline in New York, which transmits sexually explicit messages. (SCB exhibit 4, Ltr. 8/11/83). On January 11, 1984, SCB submitted to the LPSC an amendment to the General Subscriber Services Tariff pertaining to Local Dial-It service, which was accepted and became effective on January 31, 1984. On February 1, 1984, Carlin sent SCB a check as advance payment for the establishment of Dial-It service and enclosed a list of programs Carlin intended to put in operation as soon as facilities became available. The programs listed, in order of priority, were (1) Info Line — 976-2727; (2) Quiz Line — 976-9467; (3) Telesports — 976—4444; (4) News Line — 976-2626; and (5) Hope Line — 976-4673.

(SCB Ex. 9, Ltr. 2/1/84). Several weeks later, SCB advised Carlin that the tariff on file with the LPSC prohibited dissemination of recorded messages containing sexually explicit material. (SCB EX. 10, Ltr. 2/22/84). On March 1st, SCB acknowledged Carlin’s order of local Dial-It service and set forth the applicable fees; SCB also enclosed a copy of the amended tariff. (SCB Exs. 11 & 12, Ltrs. 3/1/84). On or about March 27th, Carlin initiated its first Dial-It service in the New Orleans area, using telephone number 976-2727. On the same day, Carlin filed suit seeking to restrain SCB from enforcing the conditions of its tariff, which reads, in pertinent part:

The subscriber has exclusive responsibility and control over the content, quality and characteristics of speech used in the recording_ The subscriber shall exclude from the message or announcement any matter the dissemination of which is prohibited by law. Since neither the Company nor the subscriber can control access to the subscriber’s messages by the general public, including minors, no message which, in the opinion of the Company, contains material of an obscene or sexually explicit nature shall be permitted on Local Dial-It Service. The dissemination of obscene or sexually explicit messages by a subscriber shall be grounds for immediate discontinuance of subscriber’s service without advance notice, and the Company shall have no liability, in tort or contract, to anyone as a result of its action in this regard.

PROCEEDINGS IN THE DISTRICT COURT

On April 17, 1984, a hearing was held on Carlin’s request for declaratory and injunc-tive relief. Initially, the district court noted that unless Carlin intended to transmit messages unlike what it had used so far, there was “nothing to enjoin,” as the so-called mildly suggestive messages then in use were admittedly not obscene. Mr. Lawrence Abelman, a representative of Carlin, then introduced a transcript of a message being played over Carlin’s New York line and testified that Carlin intended to use this message or something similar to it in New Orleans. Mr. Elbert Balch, a SCB account executive in charge of Dial-It service marketing, later testified that if he encountered this message in the course of monitoring Carlin’s lines, he would consider it a possible violation of the tariff and would refer it to SCB management for a decision regarding further action to be taken.

At the conclusion of the hearing, the district court denied Carlin’s request for a preliminary injunction. In its Reasons for Judgment, the court found that: (1) The action of SCB constituted “state action” for purposes of the 14th Amendment; (2) The message introduced by Carlin as Exhibit A at the hearing was patently obscene and therefore devoid of constitutional protection; and (3) The issue of whether SCB’s tariff constituted an impermissible prior restraint on free speech had been obviated by the court’s finding that the message Carlin intended to use was obscene.

On May 4, 1984, two days after the district court had rendered judgment, a SCB employee dialed the Carlin number and heard a message essentially similar to the one the court had declared obscene. At 2:00 p.m. that day, after giving Carlin one hour’s notice, SCB disconnected Carlin’s Dial-It service. Carlin returned to the district court, this time seeking a preliminary injunction ordering SCB to restore the service. Counsel for Carlin claimed that the transmission of the obscene message was merely a clerical error on the jiart of a Carlin employee; that Carlin intended to continue using only the “mildly suggestive” messages unless and until the court’s decision was overturned; and that the termination of its Dial-It service due to a single transmission of an obscene message violated Carlin’s constitutional rights. In the face of this testimony, the district court ordered SCB to reinstate Carlin’s service, holding that the tariff was unconstitutional to the extent that it would permit termination of a subscriber’s service based on a single instance of tariff violation. However, in order to protect the public from further transmissions of obscene material, the court required Carlin to post a $100,000 bond, and also set penalties of $20,000 per day plus $1 per message to be imposed if Carlin ever again transmitted a message similar to the one the court had judged obscene.

LAW

I. STATE ACTION

Because private conduct is immune from the restrictions of the 14th Amendment, this court must first find “state action” before it may address Carlin’s constitutional complaints. In arguing that its termination of Carlin’s Dial-It service was not state action, SCB relies upon Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), in which the Supreme Court determined that a utility company’s termination of plaintiff’s electrical service for non-payment of bills was not state action. Jackson does stand for the proposition that every act of a heavily-regulated utility possessing a state-granted monopoly and functioning pursuant to tariffs filed with the state does not necessarily amount to state action. However, the crux of the Supreme Court’s opinion is an inquiry into the nature of the particular act complained of. The court states:

But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself....
⅜ ⅝* ⅜ ⅜ ⅜: ⅜
If we were dealing with the exercise by Metropolitan of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain, our case would be quite a different one..

419 U.S. at 351-53, 95 S.Ct. at 453-54 (Emphasis added).

In Jackson, the utility company cut off plaintiff’s electricity to serve its own private economic interest. By contrast, SCB censored Carlin’s phone messages to protect the public interest. (SCB Ex. 13, Ltr. 1/11/84). The stated purpose of the tariff’s prohibition of sexually explicit mes-sagtés is to prevent minors from gaining access to such material. The protection of minors from exposure to obscenity is ordinarily a state concern. Thus, SCB is exercising a state function. This fact provides the nexus between SCB’s action and the state that was missing in Jackson. Therefore, we hold that SCB’s termination of Carlin’s Dial-It service constitutes state action and is thus subject to the scrutiny of the 14th Amendment.

II. CONSTITUTIONALITY OF THE TARIFF

Carlin contends that the tariff provision which authorized SCB to disconnect its service is an impermissible prior restraint on its right of free speech; is vague and over-broad; and is a violation of the constitutional right of privacy. This court disagrees.

A. PRIOR RESTRAINT

It is well settled that obscenity is not protected by the First Amendment right of free speech. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). SCB disconnected Carlin’s Dial-It line only after Carlin transmitted a recorded message of the type that the district court judge had already declared to be obscene. Therefore, the doctrine of pri- or restraint, which concerns the right to an adversary hearing on the question of obscenity before material is censored, is not really at issue here. This point was made by the trial judge in his Reasons for Judgment following the initial hearing.

Nevertheless, Carlin claims that it is entitled to a prior adversary hearing on each individual message, and that it is insufficient for the court to proscribe, as the trial judge did, all messages of the same type as the one placed in evidence. Carlin relies on Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in which the Supreme Court invalidated a Maryland statute requiring submission of all motion pictures to the State Board of Censors before the films were exhibited. Freedman states that a statute or regulation involving a prior restraint will be condemned if: (1) Once the censor disapproves of the material, the speaker, rather than the censor, has the burden of going to court to prove the film is not obscene; (2) Once the censor has acted against the film, its exhibition is prohibited pending judicial review, however protracted; and (3) The statute provides no assurance of prompt judicial determination. 85 S.Ct. at 739. Carlin asserts that because the SCB tariff possesses these three characteristics, it is unconstitutional. We find this assertion to be without merit.

The instant situation differs from the Freedman case in at least two key ways. First, the Freedman court felt that the burden of proof should fall on the censor because “a censor’s business is to censor,” thereby creating a danger that the censor may be less responsive to the constitutional interest in freedom of speech. 85 S.Ct. at 738. This case, however, does not involve a censorship board. SCB is in the business of providing telephone service; censorship of these recorded messages is an incidental function. Once Carlin has transmitted a message essentially similar to one it knows was judicially determined to be obscene, there is no reason Carlin should not be required to bear the burden of going to court and proving that the second message is protected.

A second, more important distinction between this case and Freedman concerns the nature of the state interests involved. Because the Freedman court was dealing with motion pictures, it did not have to concern itself with the protection of minors from exposure to the films; minors can easily be barred from objectionable films. By contrast, SCB’s major concern in censoring these telephone messages is to prevent children from gaining access to them. The U.S. Supreme Court has recognized that First Amendment values must often yield to other more important interests of society. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981). A state’s power to shield children from exposure to obscene or sexually explicit material is more expansive than its power to regulate the same material as to adults. Miller, supra, 93 S.Ct. at 2621 n. 17; Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968). Indeed, the state’s interest in “safeguarding the physical and psychological well-being of a minor is compelling.” New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982).

Under the circumstances, the only truly effective way to prevent minors from gaining access to these obscene phone messages is to completely cut off Carlin’s Dial-It service pending judicial review of a message that SCB has found objectionable. The fact is that these recorded messages are changed each day. Moreover, Carlin admittedly has no way of knowing whether the person calling its service is a minor. Therefore, to allow Carlin to continue using an objectionable message pending judicial review, as mandated by Freedman, would not provide sufficient protection for minors.

In conclusion, we hold that the SCB tariff does not impose an impermissible prior restraint on Carlin’s freedom of speech. As a practical matter, Carlin obtained judicial review within three days; its service was terminated on Friday, May 4th, and a hearing was held on Monday, May 7th. Under the circumstances, this right to seek prompt judicial review adequately protects Carlin’s constitutional rights without inhibiting the state’s compelling interest in shielding minors from exposure to obscenity-

B. VAGUENESS AND OVERBREADTH

The challenge to the SCB tariff on the grounds of vagueness and overbreadth also must fail. A law is fatally vague and offends due process when it denies a person of ordinary intelligence a reasonable opportunity to know what action is prohibited so that he may act accordingly. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Furthermore, laws regulating business behavior are held to a lesser standard of “definiteness” than statutes imposing criminal penalties. Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).

According to Miller, supra, the permissible scope of a statute regulating obscenity is limited to works depicting or describing sexual conduct, which conduct must be “specifically defined by the applicable state law, as written or authoritatively construed.” 93 S.Ct. at 2615 (Emphasis added). Under these standards, the SCB tariff, which prohibits messages “of an obscene or sexually explicit nature,” is not impermissibly vague. The trial court judge has already construed the tariff as prohibiting messages of the same type as “Plaintiff’s Exhibit A,” introduced at the first hearing, and permitting the so-called “mildly suggestive” messages that Carlin is presumably now using in New Orleans. Considering that these recordings are changed daily and are each about one minute in length, the trial judge’s construction of the tariff is an adequate definition of what will be considered obscene. Because Carlin should now know what is prohibited, the tariff is not unconstitutionally vague.

Nor is the tariff overbroad. A regulation will be considered overbroad if it prohibits protected activities to a greater degree than is reasonably necessary to protect legitimate governmental interests. New York v. Ferber, supra, 458 U.S. at 769-72, 102 S.Ct. at 3361-63. SCB argues that the overbreadth doctrine is inapplicable here, because it does not apply to commercial speech. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 1830 n. 24, 48 L.Ed.2d 346 (1976). We are not persuaded that these recorded messages are commercial speech, which is usually limited to advertising. Nevertheless, we find that the tariff is permissible under the reasoning of F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). In that case, the Supreme Court held that it was constitutional to prohibit the broadcast of a satyric radio monologue containing certain offensive words. Although the material was not found to be obscene, the Court held that it could be prohibited nevertheless because of the ease with which children could gain access to the broadcast. 98 S.Ct. at 3041. Thus, the Court recognized that a state may suppress expressions that are suitable only for adults (i.e., not obscene) because of the potential effect these expressions could have on children.

In the instant case, the trial judge has already found that these telephone recordings are obscene; we find no manifest error in this factual determination. Carlin argues that the SCB tariff is overbroad in view of the recent decision of the federal Second Circuit in Carlin Communications, Inc. v. Federal Communications Commission, 749 F.2d 113 (2nd Cir.1984), which held that the F.C.C.’s restriction of the hours during which “dial-a-porn” services may operate was unconstitutional. However, the federal court emphasized that, for purposes of its opinion, it was treating the communications as indecent rather than obscene, since there had been no finding of obscenity. Id. at 116. The court specifically noted that the F.C.C. has a much freer hand when regulating obscene speech, which is not protected by the First Amendment. Id. at 121. The federal case is therefore not dispositive of the instant situation, in which there has been a judicial determination of obscenity. The U.S. Supreme Court has made it clear that the determination of what constitutes obscenity is a matter of local concern, to be judged according to prevailing community standards. Miller v. California, supra, 413 U.S. at 32, 93 S.Ct. at 2619. For these reasons, we hold that the SCB tariff is not overbroad.

C. RIGHT OF PRIVACY

Relying on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), Carlin asserts that the SCB tariff violates the constitutional right of privacy. In Stanley, the Supreme Court held that it was unconstitutional for a state to prosecute an individual for the mere possession of obscene literature in his home. We find appellee’s contentions in this regard to be without merit. Even if Carlin has standing to assert its customers’ rights of privacy, which is doubtful, the right of privacy must yield in this case to the state’s compelling interest in protecting minors, which was not at issue in Stanley.

III. FEDERAL PREEMPTION

Federal preemption is deemed to occur when there is a clear manifestation of congressional intent to preempt the field or when there is a direct conflict between state and federal regulations. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Applying this standard, we find no federal preemption in this ease.

The SCB Dial-It Service is clearly a local service, operating within the 504 area code, although long distance calls are not precluded. After hearing testimony on this issue, the trial judge determined, as a matter of fact, that this was an intrastate service. We find no manifest error in this determination.

In 1983, in response to a complaint filed after Carlin’s Dial-It service first went on line in New York, the Federal Communications Commission amended the Communications Act of 1934 to provide, in pertinent part:

Whoever, knowingly—
(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communications for commercial purposes to any person under eighteen years of age to any other person without that person’s consent, regardless of whether the maker of such communications placed the call; or
(B) permits any telephone facility under such person’s control to be used for an activity prohibited by sub-paragraph (A), shall be fined not more than $50,000 or imprisoned not more than six months or both.

47 U.S.C. § 223(b)(1) (Emphasis added). As a companion to this statute, the F.C.C. issued a regulation providing that a defense to prosecution under § 223(b) would be that the defendant had attempted to restrict minors’ access to its Dial-It service by operating only between the hours of 9 p.m. and 8 a.m. Eastern Standard Time. See 47 CFR § 64.201 (1984). However, the regulation was recently struck down by the U.S. Court of Appeals for the Second Circuit, which held that the F.C.C. had failed to demonstrate adequately that the same end could not be achieved more effectively by other, less restrictive means, such as screening- or blocking calls, or requiring access numbers. Carlin, supra. The court indicated that the F.C.C. would be compelled to refrain from enforcing § 223(b) against Dial-It services until it had adopted another regulatory scheme as a counterpart to the statute. Id. at 121. Thus, although § 223(b) expresses an intent to prohibit the transmission of obscene or indecent telephone communications to minors, the F.C.C. is, at the present time, prevented from enforcing that statute against operators of Dial-It services.

Nevertheless, as the language of § 223(b)(1) clearly limits the regulation to “interstate or foreign communication,” we can find no congressional intent to preempt state regulation of intrastate calls. Indeed, § 221 of the Act states that: “[N]oth-ing in this chapter shall be construed to apply, or to giye the Commission jurisdiction, with respect to charges, classifications, practices, services, facilities or regulations for or in connection with wire, mobile, or point-to-point radio telephone exchange service.... even though a portion of extreme service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by a State commission or a local governmental authority.” 47 U.S.C. § 221(b) (Emphasis added). Thus, it is clear that Congress did not intend the Act to be construed as applying to intrastate commerce unless it so states.

Furthermore, there is no conflict between state and federal regulations here. At the present time, because of the federal court decision, there is no federal regulation with which the SCB tariff could possibly conflict. The absence of such a conflict plus the fact that § 223(b) and the Act as a whole are clearly limited to interstate communications eliminate any possibility of federal preemption in this case. For these reasons, we find that the SCB tariff has not been preempted by federal law.

CONCLUSION

For the reasons stated above, we conclude that SCB’s action in terminating Carlin’s Dial-It service pursuant to its tariff was lawful. We therefore affirm the May 2, 1984 judgment of the trial court. We also affirm the May 8, 1984 judgment insofar as it orders Carlin’s service to be reinstated, but we reverse that judgment insofar as it declares the SCB tariff unconstitutional and imposes penalties on Carlin for any future transmission of obscene messages. We find these penalties to be unnecessary because we hold that should Carlin ever again transmit a message which SCB deems to be obscene, SCB is authorized to disconnect Carlin’s Dial-It service pursuant to its tariff.

AFFIRMED IN PART AND REVERSED IN PART.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

The question in this case is whether a telephone company, admittedly obliged by state law and by constitutional theory to make available to all its communication lines, must similarly make available to all its accounting computers and telephone bill collection forces (including, presumably, cutting off all telephone service for nonpayment).

This is not a state action case. It is the telephone company — not the state — that has elected, in its tariff it filed with the state public service commission, to afford the use of its accounting computers and collection forces as its contribution to joint money-making ventures with some of its customers who use telephone answering devices to transmit messages that persons are willing to pay for (such as sports results). And it is equally the telephone company — not the state — that has elected, in the same tariff, not to afford the use of its accounting computers and collection forces for, and to terminate that use (not all telephone service) in the event of dissemination of, certain categories of recorded messages as to which the telephone company does not wish to be a joint venturer. The principle of Jackson v. Metropolitan Edison Co. controls: that is not state action.

Nor is this a freedom of speech case. Carlin Communications is as free as any other telephone subscriber with a telephone answering device to answer its telephone with recorded messages. It will remain that free, even if the telephone company refuses to use its accounting computers and collection forces to collect from telephone company customers the charges that Carlin would like to collect from those who call to hear Carlin’s messages. Moreover, Carlin is free (and presumably economically able) to buy or rent its own computers to identify its millions of customers monthly and mail them bills, and it is free to cut off its own service to its customers who do not pay their bills. But Carlin has no “free speech” right to force South Central Bell to do so.

I would reverse the trial judge’s ordering of South Central Bell to restore to Carlin the use of South Central Bell’s computers and employees and the threat of cutting off all telephone service to Carlin’s customers who do not pay Carlin’s bills. Carlin had no claim to those services from South Central Bell except by its contract with South Central Bell, and that contract was lawfully terminated by South Central Bell in accordance with its terms.