author: | JAMES L. CANNELLA, Judge.

text:
    Michael JOHNSON, Sr. and Kim Johnson Individually and on Behalf of Their Minor Children Monesha Johnson, Kyi Johnson, Kendra Johnson and Monique Johnson v. LOUISIANA DOCK COMPANY, L.L.C. and Dann Ocean Towing, Inc.
    No. 03-CA-39.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Ronald A. Johnson, Robert L. Pratt, Johnson, Johnson, Barrios & Yacoubian, New Orleans, LA, for Appellant.
    Joseph F. LaHatte, Jr., Roderick Alven-dia, Roch P. Poelman, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Dann Towing, Inc., appeals from a judgment finding it liable for injuries to the Plaintiff, a longshoreman, Michael Johnson, Sr. We affirm in part, vacate in part and remand.

On August 18, 1998, the Plaintiff was working as a rigger for Louisiana Dock Co., LLC (Louisiana Dock), a tug repair facility located on the Mississippi River. As a rigger, his duties included assisting the crane operator in loading and unloading of equipment, securing and hooking the load to be lifted by the crane, signaling or flagging the crane operator as to where to place the load, and unhooking the items from the crane after the load was set down. The Plaintiff was experienced at the job. On the day of the accident, he was assisting the crane operator, Dan Och-man (Ochman), to load a heavy piece of equipment on the deck of the M/V Captain Dann, an ocean-going tug that had been docked at the facility for several weeks for repairs. The tug was moored to a permanent barge, the Lay Barge 901(901). The load was a “button,” “roller,” or “kavel,” around which lines or rope are wrapped. After the Plaintiff secured the button, it was lifted by crane from the back of a flatbed truck and started to swing toward the tug. The Plaintiff | ..¡crossed the 901 to reach the vessel to board it so that he could find out where the load was to be deposited and to unhook it. When he reached the tug, he stepped on the bulwark (solid rails that run along the sides of the vessel a few inches wide) and he also stepped on excess lines or rope that had been “flaked” along the bulwark to keep the deck passage clear. The rope rolled, he lost his balance and fell to the deck, a distance of approximately 2 to 3 feet. As a result of his fall the Plaintiff suffered a fractured ankle and fibula, injury to his right knee and psychiatric problems.

The Plaintiff subsequently received workers’ compensation from Louisiana Dock. On August 18,1999, the Plaintiff and his wife, Kim Johnson, filed suit against the Defendant under the provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b) (LHWCA). Louisiana Dock intervened to recover the compensation that it had paid to the Plaintiff. A two day judge trial was held on March 25 and 26, 2002, following which, the Defendant was found 75% at fault and the Plaintiff 25% at fault in the accident. The trial judge awarded the Plaintiff $112,500. in general damages, $35,748 in past and future medical expenses, and $119,998.50 in past and future lost wages. He awarded Kim Johnson, $3,750 for loss of consortium. The trial judge awarded interest from the date of judicial demand.

On appeal, the Defendant asserts eleven errors, contending that the trial judge erred in applying the federal negligence standard in a LHWCA case, in its fact findings, in finding it liable, in denying the Defendant’s motion for involuntary dismissal, in failing to find that the Plaintiff was a trespasser on the vessel, and in awarding prejudgment interest on damages for future lost wages and future medical expenses.

|4The Defendant argues that the Plaintiff is solely responsible for his injuries. It states that the Plaintiff knew that standing on a rope was dangerous because rope tends to roll. It also argues that the Plaintiff should have used a ladder to access the deck of the boat, pursuant to the Louisiana Dock safety policy. Third, it contends that the Plaintiff was not an invitee, and there was no need for him to board the boat at that time because it had to be moved closer to the dock in order for the crane to reach the bow (front end).

The Plaintiff testified that he knew that standing on rope was unsafe because of its tendency to roll. However, he contended that he saw a dangerous situation developing and hurried over to prevent a deckhand from potential injury. The Plaintiff testified that a deckhand was standing under the spot over which the crane suspended the load. The Plaintiff explained that this was dangerous because the brakes sometimes fail on the cranes, which would cause the load to fall. So he hurried over to get the person to move. Instead of telling the deckhand to move when he reached the boat, he told the deckhand to ask Captain Walter Jones where to deposit the button. Since he needed this information anyway, this forced the deckhand to move from the area of danger. The Plaintiff then boarded the tug by stepping from the barge on to the bulwark of the boat. The barge and the tug were almost even where he stepped, so he did not have to climb up or down. He testified that the bulwark was flat along the top and 2 to 3 inches wide. Further toward the front or bow the bulwark slanted upwards. Anywhere forward of where he boarded would have been unsafe to board because of the upward angle and because the bow also flared inward as the angle rose, leaving a gap over the water. The Plaintiff said that, although the surface was flat, it had rope lying along its length. When he stepped on the bulwark and the rope, he reached his hand across the deck to the cabin to balance himself. The distance was approximately 2 to 3 feet. Despite this precaution, the rope slid and he fell to the deck.

IfiThe Plaintiff stated that he saw rope on the deck, as well as hanging all over other parts of the bulwark, but that he boarded at that particular spot because it was a safe spot to board. He noted that forward of where he stepped, the flat surface changed to a round half pipe and was at an incline. He could not board from the stern (back) of the boat because a large piece of sheet metal on the 901 was in the way. The Plaintiff stated that he did not board at the bow because cables and lines were strung there. The Plaintiff said that the people that came from the dock to his aid got on the tug the same way he did and no one used a ladder to go from the bulwark to the deck.

The Plaintiff testified that the incident happened very fast, from the time he first saw the deckhand and the danger, to his fall. He insisted that it was his job to unload the button, and for safety reasons, deckhands were not allowed to unhook the load deposited on the tug decks. He stated that he assumed that he had permission to board the vessel because he was doing his job according to instructions from Och-man, who was the foreman in charge of the job.

Ochman and Mel Davis (Davis), the foreman, stated that Louisiana Dock employees had been working on the boat for some time, going on and off, and that they always had permission to board to perform their jobs. In addition, the Captain knew that the Louisiana Dock employees were going to move a button to the boat and he had discussed the matter with the foreman prior to the Plaintiffs attempt to board. Davis noted that the Plaintiff was following orders when he boarded the boat.

Ochman trained the riggers for Louisiana Dock and said that the Plaintiff was a good worker. He stated that Davis gave the instructions on loading the button. He agreed with the Plaintiff that deckhands were not supposed to participate in the rigging operations, according to company policy. However, he disagreed with the Plaintiff that the button was suspended over the bow when the ^accident happened. Although the witnesses agreed that the crane barge was facing the tug’s bow prior to the accident, Ochman thought that the load was hanging over his crane barge. He said that the crane could not reach the tug’s bow and he would not suspend it over the bow anyway because people were walking around on the deck. He was waiting for Captain Jones to move the boat forward when the Plaintiff boarded the tug. He did not see the accident because he was looking away at the time. After the accident, he went to the boat and saw the Plaintiff on top of a lot of rope that was snaked back and forth on the deck.

Ochman, Davis, and Ed Roach (Roach), the safety manager, testified to the Louisiana Dock safety policies. No written manual was provided, but weekly safety meetings were held. They testified that the workers are instructed not to step on rope because it can roll or slide. Roach stated that when the Louisiana Dock workers went to aid the Plaintiff, they all stood on the rope that they noticed scattered on the deck. Their actions violated the rope policy as well, but Roach explained that they were all focused on the Plaintiff and his injury. In regard to the use of ladders, the three Louisiana Dock employees testified that there is no blanket policy for using ladders. They stated that ladders are normally used while the repair work is ongoing because the workers are carrying tools and such, or when the distance to the deck from the bulwark is too high to step down. However, Ochman, Davis, and Roach indicated that the workers use their judgment depending on the circumstances. They thought that a ladder was not necessary in this situation because the step down distance from the bulwark to the deck not great, and the loading of the button was the last act Louisiana Dock would be performing for the tug, since the boat was leaving immediately afterwards to pick up its tow. Roach and Ochman also testified that company policy required only the riggers to handle loading and unloading because they are trained to do the |7job correctly. He stated there are certain ways to hang chain and that the movement of the river affects the balance of the loads.

No one witnessed the accident and no one saw where the Plaintiff actually boarded the boat. The Plaintiff claimed that he stepped on the flat surface of the bulwark and that there was rope on that surface. Captain Jones and Gonzales were skeptical because the flat part of the bulwark is painted with non-skid paint and Gonzales said that he would not have flaked the lines over the flat portion of the bulwark because the non-skid surface could abrade the rope. Captain Jones and Gonzales asserted that the lines would have been flaked on the part of the bulwark that did not have non-skid paint, which was the section with the round half pipe further toward the bow’s point. They denied that rope was scattered over the deck.

Gonzales’ testimony was contrary to the Plaintiff. He testified that he told the Plaintiff that he could not board without permission from the captain. According to Gonzales, he told the Plaintiff to stay where he was and he went to find the Captain. When he returned, he found the Plaintiff on the deck lying on top of some rope. Gonzales stated that there was no load hanging over him at the time he talked to the Plaintiff. He did not remember that the boat had just returned from sea trials, although the Louisiana Dock employees and Captain Jones so testified. He also did not know that anything was supposed to be loaded at that point and he did not see anything on the crane. Gonzales did not remember anyone from Louisiana Dock coming aboard during the eleven days that he was aboard, although the other testimony showed that they had been working on the tug. Gonzales contended that he laid the excess mooring rope on the bulwarks, as is customary on an ocean going vessel. He described the bow as the best place to board because it had a wide, flat surface bumper attached that gave access to a “second deck”, a grate, which in turn gave access to a short step to the deck. However, the distance from the bulwark to the deck in this section was ^approximately five feet and the grate or second deck could not be seen from the dock. He confirmed the Plaintiffs description of the tug’s hull, stating that the bow would have been farther away from the dock than the middle of the boat.

Captain Jones testified that the tug is 100 feet long and 27% wide and is used to both push barges in the river and to pull barges in the ocean. At the bow point, a 12 inch steel structure is attached that wraps around the bow. This is covered by a rubber fender, 14 to 16 feet wide, designed to take the impact of pushing barges. He testified that the round half pipe is welded on the bulwark 1 to 1% feet behind the “quarter bit” (the welded object used for working the lines which is located approximately}!! of the way around the hull). The round half pipe is designed to allow the lines to slide freely. Captain Jones stated that after the boat is tied up, the excess line can be coded, or it can be flaked on the deck and pushed up against the waste (bulwark). It can also be flaked on the bulwark, flipped back and forth over bulwark with loops alternating on the deck side and the outside of the hull. He stated the boat was not moving when the accident occurred. He was having trouble with an engine. He agreed with Ochman that the boom of the crane was 30 to 40 feet short of the bow. He said that the button was down on the crane barge at the time. Prior to the accident, Captain Jones had been ashore talking to the crane operator. When he boarded, Gonzales told him that someone wanted to talk to him about the crane. Captain Jones said he had already discussed the matter with the crane operator. When Gonzales went back to relay this message, he found the injured Plaintiff. Captain Jones insisted that the rope on the deck by the Plaintiff came off of the bulwark when he fell. Captain Jones claimed that he put the rope the others saw under the Plaintiff because the deck was hot from the sun. However, Davis, Ochman and Roach stated that there was a lot of rope under the Plaintiff when they saw him on the deck. Roach said that rope was scattered everywhere.

RDUTY UNDER THE LHWCA

The LHWCA, 33 U.S.C. § 905(b) provides a cause of action by a longshoreman against a vessel on which he was injured. The vessel’s liability is based on the general maritime law of negligence. The duties owed by the vessel to the longshoreman were set out in Scindia Steam, Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Under Scindia^ before turning over the ship to the stevedore, the owner has a duty to warn the longshoremen of hidden defects that would be known to the ship owner in the exercise of reasonable care and he must exercise care to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space. Second, the ship owner has a duty to avoid exposing the longshoremen to harm from hazards under the act or control of the vessel. Third, even though the owner is generally relieved of responsibility for accidents which occur once the unloading process has begun, it has a duty to intervene in the stevedoring process if it knows that a hazard exists that presents an unreasonable risk of harm to the longshoremen, and to eliminate or neutralize the hazard. Id. 101 S.Ct. at 1626. Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983).

DENIAL OF MOTION FOR INVOLUNTARY DISMISSAL

First, we find no error in the trial judge’s rejection of the Defendant’s argument that the Plaintiff should have used a ladder and in the contention that the Plaintiff was a trespasser. The Plaintiff proved by a preponderance of the evidence in his case in chief that a ladder would not have prevented this accident, or that one was necessary in this situation. In addition, the Plaintiffs witnesses testified that 1 ipthe workers had permission to board the tug. This was later supported by Captain Jones’ testimony.

Next, during presentation of the Plaintiffs case, he testified that he entered on the flat section of the tug, that the reason he did so was because it was even with the barge and appeared to be the safest way to board considering the shape of the tug, and the obstacles to the rear (the metal object on the 901) and on the bow (various cables and lines). He testified that in the rash to prevent an accident to the deckhand, he used poor judgment in stepping on a section of bulwark with rope lying on it. No one saw the Plaintiff when he jumped on the boat. The trial judge chose to believe the Plaintiffs version of the events, although he and the crane operator differed on where the crane was located. This was a credibility decision. The evidence also showed that standing or walking on a rope is unsafe because it can roll from under the person’s feet. The Louisiana Dock employees all saw a lot of rope on the deck when they arrived. They testified that the Plaintiff was lying or sitting on the rope in pain. Thus, at the end of the Plaintiffs case, he established that the Plaintiff thought that there was an emergency and was hurrying to prevent an accident, that he entered the boat where he thought it was safest and the logical place to board, and that the logical spot was covered with rope, setting up a hazardous situation to invitees. Thus, we find that the trial judge was justified in denying the motion for involuntary dismissal.

NEGLIGENCE

The Defendant’s evidence was that the lines were flaked by Gonzales, who said he pushed the lines so that they laid flat covering the slippery part of the bulwark. If the Plaintiff boarded there, as the trial judge seemed to conclude at the end of the trial,- the Plaintiff would not have seen the smooth, slippery surface, only the flattened rope. While aware of the danger of standing on rope, he would not have been aware that the danger was substantially increased by the slippery In surface. However, if the Plaintiff stepped on a flat surface, then the lines were flaked over the section with non-skid paint on it, thus creating a boarding hazard. In either event, the Defendant created a hazard in an area under its active control that contributed significantly to the accident. Unlike Scindia, the Plaintiff here was on his way to conduct his rigging activities when he was injured. He was not injured due to any act or defect created by Louisiana Dock. This case is also distinguishable because he was rushing to prevent an injury to the Defendant’s deckhand Who was not paying attention to his surroundings. Under these facts, we find that the Defendant breached a duty to the Plaintiff and that the breach was a significant cause of the accident. Thus, we find that the trial judge did not err in his factual findings, in his legal analysis, in denying the Defendant’s motion for involuntary dismissal, or in assessing 75% of the fault to the Defendant.

PREJUDGMENT INTEREST

The trial judge erred in awarding prejudgment interest on future medicals and lost wages. Generally, the courts have the discretion to award prejudgment interest in cases based on admiralty jurisdiction. Mislead v. v. Diamond M. Offshore, Inc., 95-2446, p. 14 (La.7/2/96), 676 So.2d 89, 97. In addition, the LHWCA does not prohibit the award of prejudgment interest. Guidry v. Booker Drilling Co., 901 F.2d 485 (5th Cir.1990). Thus, the trial judge did not err in awarding prejudgment interest, and the Defendant does not contest that award. However, prejudgment interest on awards for future losses are not recoverable in cases under admiralty jurisdiction. Milstead, 95-2446 at 15, 676 So.2d at 97.

The trial judge did not divide the medical expenses and lost wages into past and future damages. In Milstead, a similar circumstance occurred and the Court remanded the case solely for a division of those damages by the trial judge. Following Milstead, we will remand the matter for the trial judge to separate the l^.past and future medical expenses and lost wages. We will affirm the award of prejudgment interest on the past medical expenses and lost wages.

Accordingly, the judgment of the trial court is hereby affirmed as to liability, and damages. We affirm the award for legal interest from date of judicial demand as to the past general damages, medical expenses and past lost wages and vacate as to future medicals and lost wages. We remand the case for the trial judge to separate the past and future lost wages and medical expenses. Cost of appeal are assessed against Defendant.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

      . The intervenor, Louisiana Dock, was awarded $40,980.67 from the date of judicial demand.

      . "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.... The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.” 33 U.S.C. § 905(b).


source: Caselaw Access Project

author: I ¿THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Jean A. DILLON v. Warren DILLON.
    No. 03-CA-35.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Phyllis M. Williams, LaPlace, LA, for Defendant/Appellant.
    D. Douglas Howard, Jr., Danyelle M. Taylor, New Orleans, LA, for Plaintiff/Ap-pellee.
    Panel composed of Judges THOMAS F. DALEY, JAMES L. CANNELLA, and SUSAN M. CHEHARDY.
   I ¿THOMAS F. DALEY, Judge.

Defendant-appellant, Warren Dillon, appeals the trial court judgments denying his Exception of Jurisdiction and ordering an income assignment against his retirement benefits. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY:

The parties were married on September 25,1964 in Edgard, Louisiana and divorced on May 25, 1979 in Mobile, Alabama. At the time of divorce the parties partitioned the community property, with the exception of Mr. Dillon’s retirement plan with his employer, IBM. The divorce decree awarded Mrs. Dillon alimony. The alimony was last modified on March 10, 1986, ordering Mr. Dillon to pay alimony in the amount of $150.00 per month. Mrs. Dillon moved back to Louisiana and on July 1, 1999, she filed a petition to make the Alabama judgment executory and a petition to partition Mr. Dillon’s pension.

Mr. Dillon responded with an Exception to Venue that was granted by the trial court. This court reversed the trial court and the matter was remanded to the | ¡¡trial court for further proceedings. Dillon v. Dillon, 00-207 (La.App. 5 Cir. 6/27/00), 762 So.2d 1288. Mr. Dillon’s Writ Application to the Supreme Court was denied. Dillon v. Dillon, 2000-2280 (La.10/27/00), 772 So.2d 656. On April 5, 2002, Mr. Dillon filed an Exception of Lack of Jurisdiction stating that the Louisiana court had no jurisdiction over the issue of alimony because the Alabama judgment states that the Alabama court will retain jurisdiction over the issue of alimony. This argument was reurged at the hearing on this matter.

The trial judge denied Mr. Dillon’s Exception of Jurisdiction and rendered judgment in favor of Mrs. Dillon finding Warren Dillon in arrears in the amount of $14,100.00 and rendered a judgment making the alimony arrears of $14,100.00 exec-utory. In a separate judgment, the trial judge ordered that the Alabama judgment be made executory and that an Income Assignment Order be issued against Mr. Dillon for the payment of his current spousal support obligation of $150.00 per month pursuant to the Judgment of March 10, 1986. Mr. Dillon has timely appealed these judgments.

LAW AND DISCUSSION:

In his First Assignment of Error, appellant contends the trial court erred in denying his Exception to Jurisdiction, again claiming the trial court had no jurisdiction over the issue of alimony because the May 25, 1979 judgment states the Alabama court retained jurisdiction over the issue of alimony. In response, Mrs. Dillon points out that the 1979 judgment was modified on two occasions, most recently on March 10, 1986, thus the 1979 judgment has been superceded and is no longer binding on the issue of alimony.

Our review of the record indicates that Mrs. Dillon sought to have the March 10, 1986 Alabama judgment made executory. This judgment awarded $150.00 per month in alimony. Thus, the issue is whether the Louisiana court had authority to |4make the 1986 Alabama judgment ex-ecutory. Louisiana courts have long had the authority to make foreign judgments executory, including spousal support orders. Norvell v. Norvell, 94-0001 (La. App. 4 Cir. 1/19/95), 649 So.2d 95. Accordingly, we find this argument to be without merit.

Appellant goes on to argue that the trial court erred in exercising jurisdiction over his person when he did not have sufficient minimum contacts with Louisiana. The Exception to • Jurisdiction was filed on April 5, 2002. In this exception, appellant argued the Louisiana court had no jurisdiction over the issue of alimony because the initial Judgment of Divorce specifically states that the Alabama court would retain jurisdiction over alimony. This argument was reurged at the hearing on his exception. At no time did appellant argue that the trial court had no jurisdiction over his person.

An exception to personal jurisdiction must be filed prior to making a general appearance. International Matex Tank Terminals v. System Fuels, Inc., 398 So.2d 1029 (La.1981). Objections to personal jurisdiction are waived when the defendant makes a general appearance. Id. Mrs. Dillon filed the Amended Petition on September 12, 2000. Mr. Dillon filed a Motion to Traverse the Descriptive List on October 26, 2001. His attorney appeared at the hearing on the Motion to Traverse on November 30, 2001 and filed a Memorandum after the hearing. Clearly, Mr. Dillon made a general appearance prior to claiming the trial court had no jurisdiction over his person. Accordingly, Mr. Dillon’s arguments regarding personal jurisdiction are without merit.

In his Second Assignment of Error, appellant argues the trial court erred in ordering an income assignment against his retirement benefits. He contends that his retirement funds are not subject to garnishment or seizure as a reimbursement for past due alimony pursuant to R.S. 13:3881(D)(1). Mrs. Dillon responds that R.S. 13:3881 provides that pensions are exempt from liability for any debt except | ¡¡alimony and child support. She reasons that there was no error since the Income Assignment Order against appellant’s retirement benefits was for alimony arrear-ages.

The trial court rendered two judgments in this case, both dated April 29, 2002. Both judgments were appealed from. One judgment finds that appellant is in arrears in the amount of $14,100.00. This judgment goes on to state:

It is further ordered, adjudged and decreed that this Honorable Court will grant an income assignment order and/or garnishment of the assets of Warren Dillon in order to satisfy these arrearages.

The second judgment appealed from states in pertinent part:

It is ordered, adjudged and decreed that the judgment rendered March 10, 1986 by the Circuit Court at Mobile, Alabama in the matter entitled Jean M. Dillon v. Warren Dillon, No. DR-79-500062.06-K is recognized by this court and hereby made executory.
It is further ordered, adjudged and decreed that an Income Assignment Order shall issue herein against Warren Dillon for the payment of his current spousal support obligation pursuant to the judgment of March 10, 1986, in the amount of $160.00 per month. (Emphasis added)

We find these judgments only issued an income assignment to satisfy the current spousal support of $150.00 from the Alabama judgment that was made executory. R.S. 13:3881(D)(1) exempts pensions and retirement benefits from “all liability for any debt except alimony and child support.” Thus, the trial court did not err in ordering an Income Assignment Order on appellant’s retirement benefits for the current spousal support obligation.

The judgments rendered do not provide an avenue for plaintiff to collect the alimony in arrearages. We do not rule on the issue of whether an income assignment can be issued against Mr. Dillon’s retirement benefits to satisfy the amount in arrearag-es because that is not before us. Mrs. Dillon may execute the judgment for the amount in arrearages in the same manner any other judgment may be executed — by seizing property and assets of Mr. Dillon that are not exempt from seizure.

|fiFor the foregoing reasons, the judgment of the trial court is affirmed. This matter is remanded to the trial court for proceedings consistent with this opinion.

AFFIRMED; MATTER REMANDED.


author: I «MARION F. EDWARDS, Judge.

text:
    Jennifer M. ALIX v. E-Z SERVE CORPORATION and American Home Assurance Company.
    No. 03-CA-24.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Raymond S. Maher, Jr., New Orleans, LA, for Appellants.
    Cary J. Deaton, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   I «MARION F. EDWARDS, Judge.

In a worker’s compensation case, Appellants, E-Z Corporation and American Home Assurance Company, appeal from an award to plaintiff of medical expenses, disability benefits, penalties, and attorney’s fees. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

On August 23, 2001, Plaintiff/ Appellee, Jennifer Alix (“Alix”), was employed as a cashier by E-Z Corporation in an E-Z Serve at a Marrero location in Jefferson Parish. On that date, Alix was injured in the course and scope of her employment at E-Z Serve while transporting a cooler into a storage room. On October 10, 2001, Alix filed a disputed claim for compensation with the Office of Worker’s Compensation Administration against E-Z Corporation, who was insured by American Home Assurance Company (Herein collectively referred to as “Appellants”). On September 5, 2002, trial on this matter was held. The trial court ruled in favor of Alix, awarding the following: temporary total disability benefits from August 23, 2001 through January 7, 2002 as well as indemnity benefits, all medical expenses, and penalties for an arbitrary and capricious refusal to pay various expenses and a failure to complete the first report of the injury. The worker’s compensation judge further awarded Alix attorney’s fees.

1?Appellants timely filed this appeal.

LAW AND ANALYSIS

Appellants first assert that the trial court erred in allowing evidence of.E-Z Corporation and American Home Assurance Company’s failure to pay Alix’s medical and transportation expenses when these items were not claimed as being in dispute in Alix’s Pre-Trial Statement. Appellants argue that Alix should have been prohibited from introducing such evidence under Department of Labor, Office of Workers’ Compensation hearing rule Chapter 21, Section 2158, which provides that only issues listed in the Pre-Trial statements of the parties shall be litigated at trial.

The record shows that Alix, in her PreTrial statement filed on May 22, 2002, stated that the contested issues of fact and law consisted of lost wages, residual disability, and medical treatment. At trial, Alix testified and submitted evidence that she had incurred expenses of $183.00 for an emergency room bill, $41.43 for a prescription bill, and an undetermined monetary amount for five 130 mile trips incurred in seeking treatment. In response to Appellants’ objection at trial to the admission of the evidence, Alix responded that these items fell under the purview of “disability,” as costs that occurred over time as a result of her injury.

Although a trial judge has great discretion in deciding whether to receive or refuse testimony objected to on the grounds of failure to abide by the pre-trial order, any doubt must be resolved in favor of receiving the information. Moreover, the trial court is given express authority by La. C.C.P. art. 1551 to modify pre-trial orders to prevent “manifest injustice.” LAbsent an abuse of discretion, the decision of the trier of fact will be upheld.

After a review of the record, we find no abuse of discretion in the trial court’s determination that evidence of Alix’s expenses incurred in her medical treatment were admissible, in spite of the fact that these expenses were not specifically listed in her Pre-Trial order.

Appellants next assert that the trial court erred in determining that the evidence presented a finding that Alix was temporarily and totally disabled from August 23, 2001 through January 7, 2003.

In claiming a total disability, whether temporary or permanent, the plaintiff must prove his inability to engage in any gainful occupation, whether or not the same or similar to that customarily engaged in at the time of injury. The plaintiff may rely on medical and lay testimony. Once the trial court has made factual findings as to disability and the length thereof, those determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. In workers’ compensation matters, the technical rules of evidence are relaxed, but findings must nonetheless be based on “competent evidence.” In Chaisson v. Cajun Bag & Supply Co., the court held that “ ‘competent evidence’ is such evidence as has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon.”

In this case, Appellants stipulated that Alix was injured during the course and scope of employment with E-Z Serve Corporation. Alix testified |sher injury consisted of pain in her left shoulder and back pain, for which she initially unsuccessfully sought treatment at Charity Hospital and then sought treatment at the emergency room at West Jefferson Hospital. Alix further testified that, at the time of trial, her back still caused her pain. Alix also recounted the diagnoses provided to her by a treating orthopedic doctor, of possible soft tissue injury or disc injury. Both Alix and Appellants introduced portions of her medical records into evidence. A report from orthopedic doctor, Dr. R. Douglas Bostick, III, dated February 21, 2002, indicates an assessment of Alix’s injury as “Chronic cervical and lumbar strain.” Ultimately, a letter from Dr. Bostick dated May 1, 2002 said that Alix could return to light work duties but should not lift anything greater than 20 pounds. There was no evidence produced at trial to dispute the diagnosis of Alix’s injuries, in terms of their severity or duration.

Based on the foregoing, we do not find that the trial court committed manifest error in determining that Alix had sustained temporary total disability from August 23, 2001 through January 7, 2002.

Appellants next contend that the trial court erred in finding that Alix was entitled to indemnity benefits for two and a half weeks of lost time from her subsequent employment because of her August 23, 2001 accident. Specifically, Appellants argue that there was not sufficient proof of any disability.

At trial, Alix’s unrefuted testimony was that after she became employed with Sanderson Farms, her medical treatment required her to leave work early as well as take several weeks off. Alix estimated that the total time lost from Sanderson was approximately two and one half weeks.

Because of our previous holding that the trial court did not err in finding that Alix was disabled, we further find that the trial court did not err Lin awarding her indemnity benefits for, lost time in her subsequent employment in the instances that she sought medical treatment for her injuries.

Appellants next argue that the trial court erred in awarding $2,000.00 in penalties to Alix for their failure to pay indemnity benefits, and $2,000.00 in penalties for their failure to pay medical expenses, medication expenses, authorize a physician of choice, and for non-payment of transportation expenses. Finally, Appellants contend that the trial court erred in awarding $4,000.00 in attorney’s fees to Alex.

La.R.S. 23:1201(F) provides for a 12% penalty on compensation or medical benefits that the employer fails to timely pay, or fifty dollars per calendar day, whichever is greater, unless the right to the benefits has been “reasonably controverted.” An employer may avoid penalties if it relied on competent medical evidence in deciding not to pay for medical treatment.

In regard to attorney’s fees, La. R.S. 23:1201(F) also provides the basis for an award of attorney’s fees and penalties. This provision, however, is inapplicable if the claim is reasonably controverted. The workers’ compensation judge has great discretion in the award of attorney fees and penalties in a workers’ compensation case, and the exercise of such discretion will not be disturbed on appeal unless clearly wrong. At trial, Alix testified that after her initial injury, she attempted unsuccessfully to contact the store manager, Michael Okeke, and instead informed the assistant manager that she had been hurt. The assistant manger did not know where the accident forms were, however. The next day, Alix requested that Okeke allow her to fill out an accident form and visit a doctor for her back [Tpain. In response, Okeke told Alix to pick up boxes and finish putting away new stock. Alix ultimately obtained an accident form from the Assistant Manager and filled it out. When Alix provided the accident form to Okeke, he reportedly told her that she didn’t need to turn in an accident form since she didn’t really injure herself. Alix went to the West Jefferson Hospital emergency room a few days later, and Okeke would not give authorization to the hospital to bill E-Z Serve for the hospital visit, so Alix had to have the hospital bill her directly in order to obtain treatment.

The trial court obtained further testimony from Alix regarding an incident when she presented a medical bill and report to Okeke. Alix testified that Okeke told her that the West Jefferson medical report referring her to an orthopedic doctor was “not good enough,” and threw it into the garbage can.

Based on the evidence at trial, the court concluded that the defendants had been “arbitrary and capricious” in their refusal to pay expenses associated with Alix’s treatment, and for their failure to complete the first report of injury. After a review of the record, we cannot say that the trial court’s findings were clearly erroneous in this regard. Accordingly, we affirm the trial court’s award of penalties and attorney’s fees.

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

AFFIRMED.

      . Curry v. Johnson, 590 So.2d 1213, 1216, (La.App. 1 Cir.1991).

      . Neff v. Rose, 546 So.2d 480, 483 (La.App. 4 Cir.1989); writ denied, 551 So.2d 1322, (La.1989).

      . Kennedy v. Johnny F. Smith Trucking, 94-0618 (La.App. 1 Cir. 3/3/95), 652 So.2d 526, 529.

      . LSA-R.S. 23:1221(1).

      . Simpson v. S.S. Kresge Co., 389 So.2d 65 (La.1980).

      . Tassin v. Cigna Ins. Co., 583 So.2d 1222, 1225 (La.App. 3rd Cir.1991).

      . La. R.S. 23:1317.

      . 97-1225 (La.3/4/98), 708 So.2d 375; reh’g denied April 3, 1998.

      . Id. at 382.

      . Williams v. Hospital Service, Inc., 95-214 (La.App. 5 Cir. 9/20/95), 663 So.2d 749, 754, writ denied, 96-0160 La. 3/15/96, 669 So.2d 422, 96-0190 (La.3/15/96), 669 So.2d 418.

      . Rareshide v. Mobil Oil Corp., 97-1376, p. 14 (La.App. 4 Cir. 4/22/98), 719 So.2d 494, 506; writ denied, 1998-1595 (La.10/9/98), 726 So.2d 28.


text:
    STATE of Louisiana v. Corey JACKSON.
    No. 02-KA-1281.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Appellant.
    Corey Jackson, in Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Corey Jackson, appeals from his conviction of distribution of marijuana and his enhanced sentence, as a second felony offender, to 15 years imprisonment at hard labor, without benefit of probation or suspension of sentence. For the reasons which follow, we affirm.

On July 10, 2000, the St. John the Baptist Parish grand jury indicted the Defendant on one count of distribution of marijuana, in violation of La. R.S. 40:966(A)(1), which allegedly occurred on May 4, 2000. The Defendant was arraigned on November 13, 2000 and he pled not guilty. On March 19 and 20, 2002, the case was tried before a jury.

Detective Sergeant Troy Hidalgo, a state witness, testified that he was employed by the St. John the Baptist Parish Sheriffs Office as a narcotics investigator. He further testified that, on or about May 4, 2000, he and other officers were involved in an undercover narcotics operation targeting street level narcotics distributors in documented high crime areas of St. John the Baptist Parish. Detective Hidalgo explained that, in the undercover operation, they used undercover agents from other agencies in Louisiana who were commissioned police officers. During this operation, Agent Daniel Declouet, a narcotics agent |3with the St. Mary Parish Sheriffs Office narcotics task force, was utilized as an undercover officer.

Agent Declouet, using an unmarked vehicle that was equipped with a video and audio recording device, explained that the videotape from the transaction was used to identify the individual from whom the undercover agent purchased narcotics.

The State introduced evidence to show that, on May 4, 2000, at approximately 4:45 p.m., the Defendant sold a half-ounce bag of marijuana for $50 to undercover Agent Declouet on Jasper Street in LaPlace. The transaction was videotaped. Detective Hidalgo, a member of the surveillance team, testified that he identified the Defendant as one of the two African-American males shown in the videotape selling narcotics to Agent Declouet. Agent De-clouet identified the Defendant in court as the man who sold him the marijuana.

After Agent Declouet purchased the marijuana from the Defendant, he placed it inside an evidence bag, sealed it, marked it with a number, the date, the time of the transaction, and placed it in the glove compartment of his vehicle. At the end of the day, Agent Declouet turned over to Detective Hidalgo, the bag of marijuana along with the evidence from three other narcotics transactions that he made that day, each labeled with the date and time of purchase.

Scott Roccaforte, qualified as an expert in the field of forensic science, testified that he performed an analysis of a substance, State’s Exhibit 1, and that the green vegetable matter submitted was determined to contain marijuana.

The Defendant did not call any witnesses.

After hearing the testimony, the jury found the Defendant guilty as charged. On March 25, 2002, the Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial. The motion for new trial was denied on |4March 25, 2002, and the motion for post-verdict judgment of acquittal was denied on April 3, 2002.

The State filed a multiple offender bill of information and the Defendant denied its allegations on April 3, 2002. On May 8, 2002, the trial judge found the Defendant to be a second felony offender. On June 4, 2002 the Defendant filed an objection to the multiple bill and a motion to reopen the multiple bill hearing. On August 1, 2002, the trial judge denied the motion to reopen the multiple bill hearing. On September 5, 2002, the trial judge sentenced the Defendant to 15 years in the Department of Corrections without benefit of probation or suspension of sentence. On September 5, 2002, the Defendant filed a motion for reconsideration of sentence which was denied. He also filed a motion for appeal which was granted. On appeal, the Defendant assigns one error.

On appeal, the Defendant contends that the evidence was grossly insufficient to support the conviction of distribution of marijuana because, (1) the arresting officer only identified the Defendant from a videotape that had been previously duplicated, (2) the officers only identified the Defendant in the videotape and not the other individual, due to the complaints that the Defendant made regarding Detective Hi-dalgo’s treatment of him after his arrest, (3) neither officer could identify any distinctive features about the Defendant’s appearance that would cause them to remember him rather than the other individual in the videotape, (4) the officers identified the Defendant in court despite the Defendant wearing an eye patch in court and neither of the men in the videotape wearing an eye patch, (5) Agent Declouet placed the alleged drugs in his glove compartment and continued conducting drug buys, instead of turning the alleged drugs over to a senior officer, thus causing a break in the chain of custody, (6) the alleged drugs were commingled with several other substances obtained during the same undercover | ,soperation, and (7) the State did not satisfy the factors set forth in State v. Johnson, 00-1528 (La.App. 4th Cir.2/14/01), 780 So.2d 1140, writ denied, 00-10916 (La.2/1/02), 807 So.2d 854, in that there was no testimony that the Defendant had a history of drug dealing, there was no evidence that the drugs were packaged in such a manner as to give the inference of distribution, and there was no drug paraphernalia found on the Defendant. The Defendant also argues on these same grounds that the trial judge erred in denying his motions for new trial and post-verdict judgment of acquittal.

Under La.C.Cr.P. art. 821(B), a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 926, cert. denied, Thibodeaux v. Louisiana, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

In reviewing the sufficiency of the evidence, due process requires the reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

In applying this standard, the reviewing court will not assess credibility nor re-weigh the evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986). The trier of fact evaluates credibility and, when faced with a conflict in testimony, is free to | r,accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 28.

The Defendant first takes issue with the identification evidence. In State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, 658, reh’g denied by, clarified by, 00-674 (La.9/21/01), 796 So.2d 649, cert. denied, Neal v. Louisiana, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), reh’g denied, 535 U.S. 1075, 122 S.Ct. 1957, 152 L.Ed.2d 859 (2002), the Louisiana Supreme Court set forth the law regarding the identification of a defendant as the perpetrator:

As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App. 2nd Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

Further, this Court has held that the testimony of a single undercover officer is sufficient to convict a person charged with distribution of drugs. State v. Slocum, 01-207 (La.App. 5th Cir.6/27/01), 791 So.2d 143, 148.

In order to convict the Defendant of distribution of marijuana, La. R.S. 40:966(A)(1) requires that the State prove, beyond a reasonable doubt, that the Defendant knowingly or intentionally distributed marijuana, a Schedule I controlled dangerous substance. State v. Carter, 29, 972 (La.App. 2nd Cir.12/10/97), 704 So.2d 832, 834.

La. R.S. 40:961(14) defines “distribute,” in part, as meaning “to deliver by physical' delivery.” La. R.S. 40:961(10) defines “deliver” as meaning the “transfer of a controlled dangerous substance whether or not there exists an agency relationship.” In addition, jurisprudence has defined “deliver” as transferring 17possession or control. State v. Martin, 310 So.2d 544, 546 (La.1975); State v. Parker, 627 So.2d 210, 212 (La.App. 4th Cir.1993), writ denied, 93-2956 (La.3/11/94), 634 So.2d 403.

The Defendant claims that the evidence was insufficient to support the conviction because the arresting officer only identified the Defendant from a videotape that had been previously duplicated. However, Sergeant Hidalgo testified that he had custody of the original videotape and that he made the identification of the Defendant from that tape, which he duplicated the night before trial. This contention is without merit.

The Defendant next argues that the officers only identified the Defendant in the videotape and not the other individual, due to the complaints that the Defendant made regarding Detective Hidalgo’s treatment of him after his arrest. There is no evidence to support this contention. Detective Hi-dalgo testified that he did not know that the Defendant had reported him. Moreover, whether anyone else is identified is irrelevant to the identification of the Defendant.

The Defendant contends that the identification should be discounted because neither officer could identify any distinctive features about the Defendant’s appearance that would cause them to remember him, rather than the other individual in the videotape. We find it irrelevant whether either officer could identify distinctive features about the Defendant’s appearance. What is relevant is that both officers positively identified the Defendant in court as the individual who sold drugs to Agent Declouet. Additionally, Agent Declouet testified that he had talked to the Defendant the day before his arrest regarding the purchase of drugs. Therefore, because Agent Declouet had the opportunity to see and talk to the Defendant on two different days, the jury could have reasonably found that he had a good memory of the Defendant’s appearance. This argument is without merit.

|sThe Defendant also argues that the officers’ identification of him is suspect because they identified him in court wearing an eye patch even though neither of the men in the videotape wore an eye patch. Again, the relevant fact here is that Agent Declouet and Detective Hidalgo both identified the Defendant as the perpetrator of the offense. Although Sergeant Hidalgo admitted that the Defendant’s appearance in court was different from his appearance at the time he was arrested, in that he had a little more hair and an eye patch in court, Sergeant Hidalgo identified the Defendant in court as the individual who was shown in the videotape selling drugs to Agent Declouet. Thus, contrary to the Defendant’s argument, it seems that the officers’ ability to identify him in court despite a disguise evidences the certainty of their identification rather than its unreliability.

Based on the foregoing and our review of the record, we find that the evidence was sufficient to establish the identity of the Defendant as the individual who sold Agent Declouet marijuana on May 4, 2000. The transaction was videotaped and shown to the jury. When Sergeant Hidalgo viewed.the videotape, he identified the Defendant as the individual who sold the marijuana to Agent Declouet. Additionally, both Sergeant Hidalgo and Agent Declouet positively identified the Defendant in court. The Defendant transferred possession of the marijuana to Agent Declouet, who, in turn, gave the Defendant $50. Scott Roccaforte testified that the substance in question tested positive for the presence of marijuana.

The Defendant argues that the evidence was insufficient to support the conviction because Agent Declouet placed the • alleged drugs in his glove compartment and continued conducting drug buys, thereby breaking the chain of custody, instead of turning the alleged drugs over to a senior officer. The Defendant further contends that the evidence was insufficient, because the alleged | fldrugs had been commingled with several other substances obtained during the same undercover operation.

Agent Declouet testified that, after he purchased the marijuana.from the Defendant, he placed it inside an evidence bag, sealed it, marked it with a number, the date and time of the transaction and placed it in the glove compartment of his vehicle. Agent Declouet elaborated that he labeled the bags with the date and time of purchase so that he would know which bag went with which purchase. He testified that, in this case, he purchased the marijuana on May 4, 2000 at 4:45 p.m. and he made no other purchases at that time. Agent Declouet further testified that, at the end of the day, he turned it over to Sergeant Hidalgo, and that the evidence never left his possession. Thus, we find no merit in the Defendant’s arguments concerning the broken chain of custody of the evidence or the lack of connection of the evidence to the Defendant.

The Defendant argues that the evidence was insufficient to support the conviction, because the State did not satisfy the factors set forth in State v. Johnson, 00-1528 (La.App. 4th Cir.2/14/01), 780 So.2d 1140, writ denied, 00-10916 (La.2/1/02), 807 So.2d 854, in that there was no testimony that the Defendant had a history of drug dealing, there was no evidence that the drugs were packaged in such a manner as to give the inference of distribution, and there was no drug paraphernalia found on the Defendant. The defendant in Johnson was convicted of possession with intent to distribute after officers observed him exiting his house carrying a grocery bag which was later found to contain one pound of marijuana. Three one-pound packages of marijuana were subsequently found in his house, along with small sandwich bags each containing one ounce of marijuana.

On appeal, he contended that there was insufficient evidence to prove that he intended to distribute'the marijuana. The State contended that four pounds of Immarijuana were found, and that quantity refuted the defendant’s argument that the marijuana was for his personal use. In analyzing the case, the appellate court stated that there were five factors that were helpful in determining whether circumstantial evidence was sufficient to prove the intent to distribute a controlled dangerous substance, (1) whether the defendant ever distributed or attempted to distribute the drug, (2) whether the drug was in a form usually associated with possession for distribution to others, (3) whether the amount of drug created an inference of an intent to distribute, (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only, and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Upon review, it is clear that the Defendant has mistakenly relied on the Johnson case. Johnson is distinguishable from the instant case and, therefore, inapplicable. In Johnson, the defendant was not caught actually distributing the drugs as was the Defendant here. Thus, the fact of distribution had to be proven circumstantially from the evidence like packaging, quantity, etc. In this case, the Defendant was caught actually distributing the marijuana. Proof of distribution in this case was direct. Thus, the Johnson factors or not applicable. They only apply where actual distribution is not proven and the state rests its case on circumstantial evidence to prove the intent to distribute. This argument has no merit.

The Defendant in his pro se brief raises two related contentions regarding the suf-ficieney of the evidence which are not found in his counsel’s brief. First, the Defendant argues that the State failed to prove that he had knowledge of the drugs that the agent wanted to purchase. And, second, the Defendant contends that there was no evidence presented at trial to suggest that he knew what the agent and the other individual had discussed before the Defendant arrived. While we are not In certain what relevance the Defendant’s arguments here have, we find that both of these contentions are refuted by the evidence.

The videotape, State’s Exhibit 3, dated May 4, 2000, at approximately 16:44 hours, which was shown to the jury, shows an African-American male (Male # 1). The officer can be heard, but not seen. The following conversation then occurred: Officer: “What’s up, what’s happening?” Male # 1: “What you want?” Officer: “I want a half man. I talked to the dude yesterday and he said he had a half for me for 60.” At that point, another African-American male approaches the vehicle (Male # 2, the Defendant). Male # 1 turns to the Defendant and says: “Yeah, he got one right here for 50.” Officer: “Let me see.” Following this conversation, Male # 1 walks away and the Defendant comes up to the window. A rustling noise, presumably the exchange of drugs for money, can be heard although it cannot be seen on the tape. Agent Declouet testified that the Defendant handed him the marijuana in exchange for $50. The Defendant subsequently walks away from the vehicle.

After viewing the videotape, and hearing the evidence, it is clear that the Defendant knew that the agent and the other individual were discussing the purchase of drugs because immediately after the other individual said, “Yeah he got one right here for 50,” the Defendant approached the window of the vehicle and an exchange of marijuana for $50 took place. Thus, we find that the Defendant’s claims regarding lack of knowledge of the drugs are without merit.

Based on the foregoing, we find no error in the trial court’s rulings denying the Defendant’s motion for new trial and his. motion for post-verdict judgment of acquittal. We also find that the evidence was sufficient, viewed in the light most favorable to the prosecution, to find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This assignment of error has no merit.

TERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LA.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals no errors.

Accordingly, we affirm the Defendant’s conviction of distribution of marijuana, the finding that he is a second felony offender, and his enhanced sentence to 15 years in prison, at hard labor, without benefit of probation or suspension of sentence.

CONVICTION AND ENHANCED SENTENCE AFFIRMED.

      . Although the Defendant has filed both a counseled brief and a pro se brief, there is only one assignment of error presented. The argument in each brief is the same.


author: LSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Shermond ESTEEN.
    No. 02-KA-1241.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Frank Brindisi, Assistant District Attorneys, Gretna, LA, for Plaintiff/App elle e.
    Franz L. Zibilich, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   LSOL GOTHARD, Judge.

The defendant, Shermond Esteen, was found guilty of possession of marijuana with intent to distribute, a violation of La. R.S. 40:966 A. He was subsequently adjudicated a habitual offender and sentenced to an enhanced sentence of 33 years at hard labor, without benefit of probation or suspension of sentence. Defendant appeals from his conviction and sentence.

FACTS

Sergeant Todd Vignes, a narcotics agent with the Jefferson Parish Sheriffs Office, testified that in September 1997, an informant told him about a deputy who was trafficking in cocaine. Vignes was assigned to investigate that deputy, Carey Usian. Vignes was unable to uncover evidence that Usian was trafficking in cocaine, but he learned the deputy was violating department policy by experimenting with cocaine and marijuana. He set out to establish who was selling marijuana to Usian. He eventually marked defendant, Shermond Esteen, as a suspect.

|3On November 12, 1997, Vignes and his partner, Agent Lambert, took Usian into custody. Usian told them that defendant was his source for marijuana, and he agreed to cooperate in the investigation. Vignes and Lambert had Usian telephone defendant and attempt to purchase marijuana. Vignes listened to, and recorded, both sides of the conversation. The audio tape and written transcript of the conversation were admitted at trial over defendant’s objection.

Following Usian’s telephone call, Vignes applied for, and obtained, a warrant to search defendant’s residence at 636 Ban-nerwood Drive in Gretna. Vignes coordinated the execution of the warrant, which involved five officers. A surveillance team, which included Detective Rene Bodet, watched the house for one hour. Bodet testified he did not see anyone enter or leave the premises. At about 8:50 p.m., Vignes knocked on the front door of the house. When he did not receive a response, he knocked again, and loudly announced, “Police with a search warrant, open the door.” Again there was no response. Vignes tried the doorknob, and found it was unlocked.

Vignes opened the door and entered the house. He saw defendant, and immediately handcuffed him. The officers found that defendant’s wife and child were there. Vignes informed defendant he had a warrant to search the house for marijuana, and advised defendant of his rights. Defendant asked to see the warrant, and Vignes allowed him to review it. Defendant showed willingness to cooperate with the officers. He led Vignes into his bedroom, and motioned with his head toward a black bag that was lying on the bed. Vignes picked up the bag. Defendant then motioned toward the pillows on the bed. Vignes moved them, and found a clear plastic bag containing green vegetable matter.

Vignes opened the black bag, and found it contained a clear plastic bag with 13 “blunts,” i.e., cigar casings filled with what appeared to be marijuana. There was another plastic bag containing three blunts. There were two additional plastic |4bags, both containing a quarter of an ounce (about seven grams) of what Vignes believed was marijuana. Also inside the bag were a box of plastic sandwich bags, cigarette rolling papers, and a digital scale.

Bodet seized a personal planner/telephone book. He also found what appeared to be a partially smoked marijuana cigarette on the headboard of defendant’s bed. Bodet testified that the headboard consisted of a shelving system. The officers seized defendant’s driver’s license, a second partially smoked marijuana cigarette, and paperwork bearing defendant’s name and address.

Daniel Waguespack, a forensic scientist with the Jefferson Parish Sheriffs Office, testified that he conducted tests on evidence collected by the officers. The material inside the cigars and the loose vegetative material tested positive for marijuana.

Sergeant Bruce Harrison, a narcotics agent with the Jefferson Parish Sheriffs Office, was qualified as an expert in the packaging and distribution of narcotics. He testified that it has been a common practice, during the last three to five years, for narcotics dealers to remove the tobacco from inside cigars and replace it with marijuana. Blunts sell for more than the typical marijuana cigarette, and the remnants of the cigar tobacco help to mask the odor of the marijuana when the blunt is smoked.

Harrison testified that someone possessing marijuana for personal use would have no reason to divide it into individual bags, as the evidence in this case was packaged. A casual user would not typically have 13 blunts in his possession at one time. Plastic sandwich bags, prepared cigarettes or blunts, and a substantial amount of individually packaged marijuana are indicative of preparation for sale. The fact that a scale was seized was indicative of intent to prepare marijuana for sale in standard increments of one quarter to one-half ounce each.

| sHarrison estimated that all of the marijuana together weighed about a quarter of a pound, or 130 grams. It is not inconceivable that someone would possess that amount for personal use. Weight is not, however, the only consideration. Harrison felt that the evidence as a whole (the plastic bags, the cigars, and the scale) pointed to distribution. If all of the marijuana seized were packaged and sold to individual buyers, its worth would amount to between 400 and 500 dollars.

Ronnette Esteen, defendant’s wife, testified for the defense. She stated that when the police officers arrived at her family’s house, she heard a knock on the door. The officers entered immediately by knocking down the door. She further testified that she knows Carey Usian; that he has stayed in the guest bedroom at her house. She recognized the black bag in evidence as one Usian sometimes brought to the house. She saw Usian two days before the search, and he had the bag with him at that time. Ms. Esteen testified that the officers did not inform her they were at the house to execute a search warrant. Nor did they ever show her or defendant a copy of the warrant.

Roland Jackson testified he has known defendant as a friend for 13 to 14 years. He saw Carey Usian at defendant’s house on occasion. Usian carried a black bag with him. Mr. Jackson did not know what Usian carried in the bag. He knew the bag did not belong to defendant, but he did not give that information to police.

Delrick Urquhart testified he has known defendant since they went to high school together. He visited defendant’s house regularly. He met Carey Usian there. Urquhart recalled having seen Usian with the black bag at defendant’s house. He stated he was familiar with the furnishings in defendant’s house. He testified that the bed in the master bedroom had a black headboard, but it did not contain a shelving unit.

| (¡Ronald Franklin, defendant’s father-in-law, testified that he is a carpenter. He made repairs to his daughter’s front door. It looked as if it had been kicked in. It was leaning almost off of its hinges. Franklin did not have firsthand knowledge as to why the door was in that condition. He conceded that he had testified on an earlier occasion that only the lock and the keeper (the part that holds the lock) were damaged, and that the door’s hinge was loose.

Although charges were filed against Usian, he was at large at the time of defendant’s trial.

ALLEGATIONS OF ERROR

In his first allegation of error, defendant alleges that his counsel was ineffective, and therefore his conviction is null. He maintains that his retained trial counsel was ineffective in several respects: 1) she did not have his cooperation during the course of trial, but failed to inform the trial court of the situation until after the trial; 2) she utilized the assistance of another defense attorney during trial, against defendant’s express instructions, and without allowing defendant the opportunity to confer with that attorney; 3) she failed to call expert witnesses or provide expert testimony to demonstrate Carey Usian’s involvement in the offense; and, 4) she did not file a motion for a Daubert hearing regarding Detective Bruce Harrison’s expert testimony until the morning of trial, and failed to apply for supervisory writs from the trial court’s ruling after stating her intention to do so.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 18 of the Louisiana Constitution. When a defendant seeks reversal of a conviction based on ineffective assistance of counsel, he must satisfy both part of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel “committed errors so serious that he or [7she was not functioning as ‘counsel’ guaranteed a defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The key question must be whether counsel’s performance was reasonable considering all the circumstances.

Secondly, the defendant must show that the deficiency was so great as to prejudice the defense. This requires a showing that counsel’s errors were “so serious as to deprive the defendant of a fair trial; one with a reliable result.” Id. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judge ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983); State v. Ruffin, 02-798, p. 16 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 635.

Claims of ineffective assistance of counsel are generally relegated to post-conviction proceedings rather than direct appeal, unless the record permits definitive resolution on appeal. State v. Steele, 01-1414, p. 17 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 552.

First, defendant argues that counsel failed to perform competently at trial due to his own failure to cooperate with her in preparing a defense. Defendant’s own decision not to cooperate with his legal representatives places with him the responsibility for counsel’s inadequate preparation at trial. See, State v. Owens, 30,903, p. 10 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, 617, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Defendant next complains that counsel was deficient in allowing an attorney with whom he (defendant) had not conferred to take part in the trial. Defendant does not specify how the attorney’s involvement caused counsel’s representation to be deficient, nor does he show how he was prejudiced by the attorney’s participation in the trial. A reading of the pretrial minute entries shows that defendant was, over the course of nearly two years, represented by at least six ^different attorneys in court. The trial transcript lists four attorneys representing defendant at trial. All of those attorneys participated in some way in the trial.

Defendant argues that trial counsel was deficient in failing to pursue fingerprinting, DNA testing, or some other identification method to show that Casey Usian handled the bag in which the marijuana was found. Defendant maintains such evidence would have aided his case, as his defense was based on a claim that Usian was the one who placed the contraband in the satchel.

We note that the attorney’s decisions regarding gathering and introduction of evidence fell within the ambit of “trial strategy.” The Louisiana Supreme Court has held that if an alleged error is part of counsel’s trial strategy, it does not establish ineffective assistance of counsel. State v. Williams, 00-2116, (La.App. 4 Cir. 2/28/01), 782 So.2d 145. The Supreme Court has held that hindsight is not the proper perspective from which to judge the competency of such decisions by counsel. Opinions may differ as to the advisability of a tactic; and an attorney’s level of representation may not be determined by whether a particular strategy is successful. State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). In this case, several witnesses testified that the satchel in which the marijuana was found belonged to Usian, and that they had seen Usian with the bag, and therefore, forensic evidence connecting Usian with the bag was unnecessary.

Defendant finally contends he was denied effective assistance of counsel because she failed to properly pursue his motion for a Daubert hearing to determine Sergeant Harrison’s qualifications as an expert. In defendant’s third allegation of error, discussed infra, we find no merit to defendant’s claim that the trial court erred in failing to hold a Daubert hearing. We find defendant’s claim that counsel was ineffective to be without merit.

| sIn his third allegation of error, defendant alleges that the trial court’s refusal to conduct a Daubert hearing, prior to the testimony of Sargeant Harrison, was a substantial error of law.

The general rule for admissibility of expert testimony is contained in La. C.E. art. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Daubert, the United States Supreme Court held that Federal Rule of Evidence 702 imposes an obligation upon a trial judge to ensure that scientific testimony is relevant and reliable. The Daubert court listed several factors that a court could consider in determining the admissibility of. an expert’s testimony. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Daubert, 509 U.S. at 592-593, 113 S.Ct. at 2796. Some factors bearing on this analysis are whether: 1) a theory or technique can be or has been tested; 2) it has been subjected to peer review or has been published; 3) there is a high known or potential rate of error; 4) there are standards controlling the technique’s operation; and, 5) the theory enjoys general acceptance in the relevant scientific community. Id. In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court recognized that courts may rely on the standard enunciated in Daubert when evaluating the admissibility of scientific expert testimony pursuant to Article 702.

In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court found that a trial court may apply the Daubert factors when determining the admissibility of all expert testimony, not just scientific testimony. At the same time, the Court recognized a Imtrial court’s broad discretion in determining whether the specific factors in Daubert are reasonable measures of reliability in a particular case. The trial court’s decision to admit or exclude expert testimony is subject to the “abuse of discretion” standard. Kumho, 119 S.Ct. at 1176, 526 U.S. 137; State v. Craig, 95-2499, pp. 8-9 (La.5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997); State v. Stokes, 99-1287 at pp. 5-6, 759 So.2d at 984.

To establish defendant’s guilt in the instant case, the State was required to prove beyond a reasonable doubt that defendant knowingly and intentionally possessed the marijuana with the specific intent to distribute it. LA.-R.S. 40:966A. One method by which the State commonly seeks to prove intent to distribute is by producing expert testimony or other evidence to show that the amount of the drug found in the defendant’s possession is inconsistent with personal use. See, State v. Hearold, 603 So.2d 731, 735 (La.1992). In order to demonstrate intent in the instant case, the State offered Sergeant Harris as an expert in the packaging and distribution of narcotics, specifically marijuana.

Defendant complains that the trial judge erred in finding Sergeant Bruce Harrison to be an expert based only on a “voir dire” of the witness in the jury’s presence. Defendant argues that Daubert, supra, required the trial court to conduct a full hearing regarding Harrison’s qualifications out of the jury’s presence.

Before the court approved Harrison as an expert, he testified regarding his experience as a narcotics officer and his formal training. Harrison testified he had worked with the narcotics division of the Jefferson Parish Sheriffs Office for four years, before which time he was a New Orleans police officer for 12 years. The majority of his work with the New Orleans Police Department had to do with street level narcotics trafficking. Over the years, Harrison has participated in thousands of drug related arrests.

In Harrison’s training included an associate degree in criminal justice. He also received training in narcotics interdiction at the police academy, and attended 264 hours of additional training in seminars over the course of his career. When questioned on the predicate by defense counsel, Harrison testified that he had never been recognized as an expert by an educator in the field of narcotics. He had never been subject to peer review, from a scholarly perspective. This, however, is something not commonly associated with police work.

Defendant does not show how Harrison’s qualifications were so lacking that the trial court abused its discretion in finding him to be an expert. See, State v. Stokes, supra. We find that the trial court did not err in allowing Sargeant Harrison to testify as an expert.

In his second allegation of error, defendant alleges that the trial court erred in failing to grant his motion to suppress, thereby allowing the admission of a taped telephone conversation between Carey Usian and himself, in which they purportedly discussed the purchase of marijuana. Defendant maintains Sergeant Todd Vignes’ testimony that Carey Usian consented to the taping of the conversation constituted impermissible hearsay, as Usian was not available to testify.

The Electronic Surveillance Act, La. R.S. 15:1301, et seq., generally prohibits the interception and disclosure of wire or oral communications. However, there are exceptions to this general prohibition, such as where one of the parties to the communication consents to its interception. La. R.S. 15:1803 C(3). Defendant argues that the only evidence of Usian’s consent offered by the State was hearsay testimony given by Sergeant Vignes.

Hearsay is evidence of an unsworn, out-of-court statement made by a person other than a testifying witness and offered as proof of the statement’s content. La. C.E. art. 801C. During the motion hearing, the prosecutor asked Vignes, “Did you haask Deputy Ussein (sic) if you could listen in?” Vignes responded, “Yes.” The prosecutor then asked, “What did he say?” Vignes answered, “Yes.” Vignes further testified that he did not threaten Usian or force him to make the telephone call. Thus, Vignes’ testimony was hearsay. However, the prohibition against hearsay evidence does not apply to suppression hearings. State v. Smith, 392 So.2d 454, 458, n. 6 (La.1980); State v. James, 99-0423, p. 11 (La.App. 4 Cir. 2/16/00), 755 So.2d 995, 1002, writ denied, 00-0872 (La.3/9/01), 786 So.2d 112. Sergeant Vignes’ motion hearing testimony was sufficient to show the voluntariness of Usian’s consent. Compare State v. Cutrera, 558 So.2d 611 (La.App. 1 Cir.1990), disapproved of on other grounds, State ex rel. Marks v. Thompson, 596 So.2d 193 (La.1992). See also, State v. Vince, 99-1892 (La.App. 1 Cir. 6/25/99), 739 So.2d 308, writ denied, 99-2232 (La.1/28/00), 753 So.2d 230.

In any case, the improper admission of hearsay is subject to the harmless error rule. State v. Williams, 98-1006, p. 21 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 77, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. The proper analysis for determining harmless error is, “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In the instant case, defendant does not show how he was prejudiced by the admission of the taped telephone conversation. The exchange between Usian and defendant was so ambiguous that it was not apparent what the subject of the conversation was. Moreover, the State’s evidence, as a whole, was so overwhelming as to outweigh any prejudice that might have accrued to defendant. Accordingly, we find no merit to this allegation of error.

|13In assignment of error number four, defendant argues that his 33-year habitual offender sentence is constitutionally excessive, considering the relatively small amount of marijuana seized.

Defendant did not file a written motion to reconsider sentence as to the habitual offender sentence, nor did he make a specific oral objection as prescribed by LSA-C.Cr.P. art. 881.1. Such an omission normally precludes review of a sentence on appeal. See, State v. Ewens, 98-1096, p. 10 (La.App. 5 Cir. 8/30/99), 736 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, this Court has routinely reviewed sentences for constitutional excessiveness, even absent a defendant’s compliance with Article 881.1. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). The trial judge is given wide discretion in determining sentence, and if the record supports the sentence imposed, the Court of Appeal will not set aside a sentence for excessiveness. LSA-C.Cr.P. art. 881.4D; State v. Richmond, 98-1015, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

In the instant case, the predicate convictions alleged in the habitual offender bill of information were for an attempted armed robbery in 1991, and possession of cocaine with intent to distribute in 1994. As it was worded in 1997 when | ^defendant committed the underlying offense, LSA-R.S. 15:529.1A(l)(b)(ii) provided:

If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

On the basis of the underlying felony alone, the trial court was required to impose a life sentence. However, the court chose to deviate from the mandatory minimum, sentencing defendant to, instead, 33 years.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Lindsey, 99-3256, p. 4 (La.10/17/00), 770 So.2d 339, 342; State v. Williams, 01-1007, p. 11 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1032. However, if a trial court finds that an enhanced punishment mandated by LSA-R.S. 15:529.1 makes “no measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial court has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

At the time of sentencing, defense counsel argued that defendant had pled guilty to attempted armed robbery in 1991, not because he was guilty of the offense, but because he knew that a guilty plea would lead to his immediate release on probation. Counsel further argued that the amount of marijuana involved in the underlying case was so small that a life sentence would be grossly out of proportion to the offense. He stated that it was not the legislature’s intent, in designing the Habitual Offender Law, to punish an offender such as defendant with |1Ba life sentence. Counsel moved the court to consider a downward deviation from the mandatory minimum under the Dorthey.

The trial court stated:

The minimum possible sentence is life imprisonment, and the maximum is the same. This Court sentences you, Sher-mond E. Esteen, to serve a period of thirty-three (33) years without benefit of probation or suspension of sentence. And for the record, I’m going to deviate from the life sentence due to the age and the type of crimes.

The State objected to the court’s deviation. However, the State did not file a written motion to reconsider sentence. Nor do we find that the prosecutor’s objection at the time of sentencing was sufficient to constitute an oral motion to reconsider under the provisions of LSA-C.Cr.P. art. 881.1. The question of whether the trial court erred in deviating from the mandatory minimum sentence is, therefore, not before this Court.

We do not believe that the 33-year sentence imposed is constitutionally excessive. The term is considerably less than the mandatory minimum. Moreover, the record shows that defendant has a more extensive criminal history than is reflected in the habitual offender bill of information. In fact, defendant was apparently on probation at the time he was arrested for the instant offense. We find that the sentence imposed is supported by the record.

We have reviewed the record for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which merit our attention.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The deputy’s name is spelled "Ussein" in the trial transcript. However, the name was spelled Usian in the motion hearing transcript, and in State’s Exhibit 2, a search warrant application prepared by Sergeant Vignes.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc.. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . Defendant filed a Motion to Reconsider Sentence prior to his original sentencing. Since Article 881.1 requires that a motion to reconsider be filed within 30 days following the imposition of sentence, the motion was premature. Moreover, it was rendered moot by the fact that defendant's original sentence was subsequently vacated. The premature motion does not apply to defendant’s habitual offender sentence.

      . The applicable sentencing provisions are those in effect at the time the offense is committed. State v. Wright, 384 So.2d 399, 401 (1980).