author: |, PATRICIA RIVET MURRAY, Judge.

text:
    Melanie GALLINA, Individually, and as the Natural Tutrix of Her Minor Child, Devin Michael Gallina v. HERO LANDS CO., ABC Insurance Company and XYZ Corporation.
    No. 2003-CA-0331.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 2003.

      John E. Sudderth, John E. Sudderth, P.L.C., Harvey, LA, for Plaintiff/Appellant.
    Michael D. Fisse, Patrick E. Moore, Daigle Fisse, PLC, Covington, LA, for Defendant/Appellee, Hero Lands Co.
    Kenneth P. Carter, Joseph K. West, Endya E. Delpit, New Orleans, LA, for Defendani/Appellee, Entergy Louisiana, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY).
   |, PATRICIA RIVET MURRAY, Judge.

This is a personal injury suit arising out of a horseback riding accident. From separate judgments dismissing one defendant, Hero Lands Co., on summary judgment, and another defendant, Entergy Louisiana, Inc. (formerly Louisiana Power & Light [“LP & L”]), on a prescription exception, the plaintiffs, the Gallinas, appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2000, Devin Michael Gallina, Melanie Gallina’s minor child, was injured when the horse he was riding collided with Entergy’s utility pole support wire located on Hero Lands’ property. It is undisputed that the pole is located on the right of way that Hero Lands granted to Entergy’s predecessor, LP & L, in 1957.

According to the petition, the accident occurred when Devin Gallina’s horse “ran into an unmarked and unprotected steel wire which appears to support a utility pole that [was] situated on the property owned by the defendant, Hero Lands Co.” The petition further alleges that “[b]ecause the wire was not marked in any fashion, and because it was unprotected and/or not enclosed in visible plastic or similarjt£pe2 material, Devon [sic] Gallina did not see the wire, and did not see it in time to guide his horse away from it, to avoid running into it.”

Melanie Gallina, individually and on behalf of her minor child, Devin Gallina filed the original petition on February 13, 2001, the one-year anniversary of the accident. Named as defendants were Hero Lands and two fictitious defendants: ABC Insurance Company, Hero Lands’ unknown liability insurer; and XYZ Corporation (“XYZ”), the unknown owner and maintainer of the utility pole. The petition alleged that the sole cause of Devin Galli-na’s injuries was “the fact that the steel wire was not marked in any fashion, being unprotected and/or not enclosed or wrapped in visible plastic or similar-type material.” The petition asserted that Hero Lands and XYZ were jointly and solidarily liable for failing to provide protective measures — i. a, either mark or enclose or wrap in visible plastic or similar-type material the steel wire attached to the utility pole.

On June 26, 2001, the Gallinas filed an amending and supplemental petition substituting LP & L (now Entergy) in place of XYZ. Based on the fact that it was not joined within the one-year tort prescriptive period, Entergy responded by asserting a peremptory exception of prescription.

Hero Lands responded by filing a motion for summary judgment, asserting it is not the owner of the utility pole support wire; rather, Entergy placed the pole and wire upon the right of way. In support of its motion, Hero Lands enumerated the following four undisputed facts:

(1) The minor plaintiff was riding horseback at the time of the alleged injury;
|3(2) The land upon which the minor plaintiff was riding was open and undeveloped;
(3) The utility pole and support wire described in the petition were not placed on the premises by the defendant, Hero.
(4) The utility pole and support wire described in the petition were located upon a right of way granted by Hero to Louisiana Power and Light in 1957.

Hero Lands also offered an affidavit by one of its corporate representatives, Allen Hero. Mr. Hero attested that Hero Lands is not the owner of the steel wire described in the petition, but rather LP & L is the owner and enjoys a right of way through the land. He further attested that LP & L placed the steel wire on the right of way and still owns it and the pole to which it is attached. Still further, he attested that the right of way permit obligates LP & L to pay damage caused by its construction and maintenance of the steel wire and the pole. Hero Lands offered a certified copy of the right of way agreement in support of its motion. .

Opposing the motion, the Gallinas offered an affidavit of Melanie Gallina. She attested that the utility pole in question was supported by “an exposed wire, silver in color, approximately one inch in diameter and difficult to observe and see with the naked eye without the usual bright protective covering attached.” Photographs of the area and the pole and attached steel wire were attached to her affidavit, and she attested they accurately reflected the area and scene of the accident.

Following a hearing, the trial court granted Hero Lands’ summary judgment motion and sustained Entergy’s prescription exception. The trial court denied the Gallinas’ motion for new trial. This appeal followed.

LHERO LANDS’ LIABILITY

We deal first with the issue of Hero Lands’ liability because it affects the outcome of the prescription issue. As noted, the trial court granted summary judgment dismissing the Gallinas’ claims against Hero Lands. It is well-settled that we review a trial court’s decision granting summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. When the party seeking summary judgment is the defendant, La. C.C.P. art. 966(C)(2) does not require that the mover negate all the essential elements of the opponent-plaintiffs claim; rather, a defendant can simply establish the absence of factual support for one or more elements. Baker v. Murphy Oil USA, Inc., 2001-1299, p. 4 (La.App. 4 Cir. 4/10/02), 816 So.2d 329, 331 (citing Moody v. City of New Orleans, 99-0708 (La.App. 4 Cir. 9/13/00), 769 So.2d 670, 671). It follows then that once Hero Lands negated a necessary element of the Gallinas’ claim, the burden shifted to the Gallinas to produce sufficient factual support to establish that they will be able to prevail on their eviden-tiary burden of proof at trial.

The Gallinas argue that the trial court erred in finding no material issues of fact as to whether Hero Lands, as landowner and grantor of a right of way, was liable for Devin Gallina’s injuries under a negligence or strict liability theory, citing La. C.C. arts. 2316 and 2317.1. Under both theories, the plaintiff is | ^required to prove three elements: (1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiffs injuries; and (3) the thing presented an unreasonable risk of harm. Baker, 2001-1299 at p. 5, 816 So.2d at 332.

It is undisputed that the accident occurred on the portion of Hero Lands’ property that is subject to Entergy’s right of way. Although there is a presumption that an owner has custody or garde of its property, this presumption is rebuttable. One way to rebut the presumption is by establishing a contractual undertaking by another to maintain and to control the property. When an owner relies on a right of way agreement to rebut the presumption, “the courts look to determine which party, if any, has actual control over the property.” Id. Indeed, the courts have recognized that a servitude holder does not have custody or garde absent either a right of dominion or some contractual responsibility for the surface of the servitude. Hartford Accident & Indemnity Co. v. South Central Bell Telephone Co., 497 So.2d 1034, 1036 (La.App. 3 Cir.1986).

The courts also have recognized the reality that garde, which is a broader concept than ownership, may be shared; multiple parties may have garde of the same thing. Dupree v. City of New Orleans, 99-3651, p. 7 (La.8/31/00), 765 So.2d 1002, 1009. To determine whether garde is shared, the courts look to the parties’ actions and relationships to the thing causing injury. Id. The oft-quoted test for determining custody or garde is two-fold: (1) whether the person bears such a relationship as to have the right of direction or control over the thing, and (2) what, if any, kind of benefit the person derives from the thing.” Id. (collecting cases).

In Baker, supra, we applied these principles to determine whether a landowner had any tort liability for an injury that occurred when the plaintiff fell in | R& ditch on the landowner’s property. The ditch was constructed and maintained by the Department of Transportation and Development (“DOTD”) on a right of way on the landowner’s property. Affirming a summary judgment in favor of' the landowner, we found that: (1) the landowner neither had an ownership interest in the ditch, nor any garde, care or control of it; (2) the landowner had no authority to change, redesign, or relocate the ditch; (3) that simply because the landowner may have derived some benefit from the ditch for some runoff from its plant was of no moment; and (4) that the only corrective action required was to place a warning sign for pedestrians and that it was solely DOTD’s responsibility to do so. As to the unreasonable risk of harm issue, we reasoned that “[t]he social advantages and public utility of the creation of this drainage canal when compared with the protection of pedestrians from falling into drainage ditches is nonsensical.” Baker, 2001-1299 at p. 10, 816 So.2d at 334. We thus held that, as a matter of law, the landowner could not be responsible for the damages caused by a defect on DOTD’s right of way and that the landowner “simply had no duty to this pedestrian to protect her from this type of injury.” Baker, 2001-1299 at p. 10, 816 So.2d at 335 (emphasis supplied).

Applying the reasoning in Baker to the facts of this case, the trial court found that Hero Lands, albeit owner of the property, lacked garde of the utility pole support wire, reasoning that “there was no evidence that Hero Lands had any right of direction or control over the power poles placed by Entergy within their right of way” or that it “derived any benefit from them, other than the benefit derived in common with every user of electricity within Entergy’s service area.” As to the unreasonable risk of harm issue, the trial court found that the social advantages and public utility of power poles and support wires outweighs the risk [7of harm to the public, “especially when the harm complained of is from the support wires as a hazard rather than the risk of electrocution.” It further found that “[t]he social utility of the maintenance of power transmission lines and power poles speaks to finding no liability against Entergy, much less the land owner who’s [sic] property is burdened by a right of way for the placement of those poles.” Still further, it concluded that it could not find any duty on the part of Hero Lands to the Gallinas to protect them from “this overt and obvious public utility, nor a breach of any supposed duty because of the overt nature of those power poles.”

Although the Gallinas concede that the trial court correctly relied upon the legal analysis in Baker, supra, they contend that it incorrectly found that there were no material issues of fact as to the three factors enumerated in Baker. Tailoring those factors to the facts of this case, the Gallinas claim that there are material issues of fact as to: (1) Hero Lands’ right of direction and control over the poles Enter-gy placed within its right of way, (2) Hero Lands’ benefit derived from the right of way and placement of poles on its property, and (3) the unreasonable risk of harm issue.

The focal point of this case at the summary judgment stage is whether Hero Lands had the right to direct or control Entergy’s poles located on the right of way. As noted, it is uncontested that Hero Lands owns the land where the accident occurred and that in 1957 it granted a right of way to the area in question to Entergy. The Gallinas note that a right of way is a predial servitude and that La. C.C. art. 730 mandates that doubts as to the extent of a predial servitude be resolved in favor of the servient estate. It follows, they contend, that any doubts about custody or garde of things on the right of way should be resolved in favor of Hero Lands having preserved custody or garde in them. They contend that | ^summary judgment was inappropriately granted and cite in support Leblanc v. Trappey, 2002-1103 (La.App. 3 Cir. 2/5/03), 838 So.2d 860, writs denied, 2003-0651, 2003-0684 (La.5/2/03), 842 So.2d 1107, 1109, which reversed a summary judgment in favor of a landowner based, in part, on a finding of ambiguity in a right of way agreement.

Leblanc was a personal injury suit by a plaintiff-motorist for damages caused by a tree branch located on DOTD’s right of way on the defendant-landowner’s property. The court found a disputed issue of material fact regarding whether the defendant or the DOTD or both had garde of the tree. The court noted that the defendant’s ownership of the land created a presumption of garde of the tree located on that land; however, the presumption was rebuttable by proof that the defendant lacked supervision or control of the tree. In resolving the issue, the court found the contractual right of way agreement controlling as to DOTD’s rights to the servitude. Characterizing the contract as ambiguous on the question of whether the defendant and the DOTD shared garde, the court noted that although the DOTD had the right to remove the tree, it was unclear from the contractual language as to whether it had the exclusive right to do so. The court still further noted that the defendant was confused as to whether he had the right to remove the tree. The court also relied upon La. C.C. art. 730, which provides that doubts as to the extent of a predial servitude are to be resolved in favor of the servient estate; translated, the court found that doubts as to garde of a thing on the right of way should be resolved in favor of the landowner “preserving his garde of them.” 2002-1103 at p. 4, 838 So.2d at 863. The court thus found the disputed issue of material of fact regarding garde precluded summary judgment.

|¡)As in Leblanc, the Gallinas argue that summary judgment was improperly granted because there is at least a disputed issue of material fact as to Hero Lands’ garde over the area where Entergy’s poles are located and Devin Gallina was injured. Stated otherwise, they argue that the right of way agreement does not clearly and unambiguously establish Hero Lands’ intent to extinguish all of its rights to the area in question. To the contrary, they cite two provisions of that agreement that evidence Hero Lands’ intent to maintain some degree of garde over the area.

First, they cite the provision reserving to Hero Lands the right to use the area, stipulating that “said line and Right of Way shall never be fenced by the Grantee [Entergy] and that the Grantor [Hero Lands] shall have full use of said Right of Way and the right to cultivate and otherwise use said Right of Way ...” This language, they argue, establishes Hero Lands had a right of control over the area where Entergy’s poles were located.

Second, they cite the provision providing for relocation of the right of way in the event it is necessary for construction of a railroad line in the curve; it provides that “Grantee [Entergy] hereby agrees to relocate its facilities in curves, if such reloca-tions are necessary, for construction of a railroad line in this area.” They read this language as giving Hero Lands the right to force Entergy to relocate the poles in certain areas if Hero Lands deems it necessary.

Taken together, the Gallinas contend that these two provisions reserve to Hero Lands the right to both use the land in question and to control the placement and possible relocation of the poles in the right of way.

| ^Countering, Hero Lands and Entergy contend that the trial court correctly concluded, based on Baker and the terms of the 1957 right of way agreement, that Hero Lands had no right of direction or control over the utility pole support wire. They argue that Leblanc is distinguishable both factually and legally. However, they acknowledge that the Leblanc case is instructive insofar as it directs the court to the language of the right of way agreement in analyzing the issue of control or garde. Finally, Entergy stresses, a finding of garde or control on the part of Hero Lands over Entergy’s electric utility pole and its appurtenances would not only be a misinterpretation of the right of way agreement, but also would have far reaching ramifications. Particularly, all Entergy customers who executed such agreements for purposes of facilitating transmission of electricity to their neighborhoods and businesses would be subject to liability exposure whenever En-tergy’s electrical facilities malfunction or cause damages to people or property.

As Leblanc instructs, we begin our analysis of this issue by turning to the language of the 1957 right of way agreement; it provides that LP & L and its successor, Entergy, are granted the following:

[T]he right, privilege and easement forever to construct, operate and maintain a transmission line, consisting of a single line of poles with such wires, cables and other appurtenances thereto as may be necessary or convenient, for the transmission of electric energy and/or communications, together with a perpetual Right of Way with ten (10) feet in width of the center line of transmission line as constructed as the center thereof, and the right to open, clear and maintain said Right of Way and to keep same clear of underbrush, trees and other obstructions which in the judgment of [En-tergy] might interfere with or constitute a hazard to the operation of said transmission line and with the free right of ingress and egress to and from and upon said Right of Way for the purpose of constructing, maintaining, repairing, replacing, operating or removing at will said transmission line and | n appurtenances thereto upon, over and across the following [described property].

The agreement further provides that:

The Grantee [Entergy] shall also have the right and privilege forever to patrol, alter, inspect, improve, repair, and remove such poles, lines, wires, cables, attachments, equipment and appurtenances, including the right to increase or decrease the number of wires, poles or structures and all other rights and privileges necessary or convenient for the full use and enjoyment of the Right of Way herein granted for the purposes herein described, including the right of ingress and egress to and from said Right of Way over adjoining lands of the Grantor [Hero Lands].

The agreement also contains an indemnification provision, which provides that En-tergy “agrees to pay any other damages, not included in the above settlement, which may be inflicted by it in the construction and maintenance of said lines, provided an itemized claim thereof shall be presented by the Grantor [Hero Lands] in writing to the office of the Grantee [Entergy] at Gretna, Louisiana, within thirty days after the damage is done.”

We find persuasive Hero Lands’ and Entergy’s argument that the above language unambiguously provides that Enter-gy has the exclusive right to control and maintain its electrical poles and the attachments thereto located on the right of way. We further find that neither of the provisions the Gallinas cite as establishing Hero Lands’ retention of control support their position. The provision reserving to Hero Lands the right to use the area ends with the following language: “except for the purposes for which the same is herein conveyed to the Grantee [Entergy].” The purpose of the right of way was to permit the construction and maintenance of electrical utility poles and attachments thereto on the property. The latter language reserves to Entergy the exclusive right to direct and to control such activities on the | 12right of way. Clearly, the right of control over the poles, albeit on property Hero Lands owned, belongs exclusively to Entergy. Likewise, we find the unexer-cised railroad provision inapposite. This case, as Hero Lands points out, is not about the placement of the poles, but rather the maintenance of a particular pole.

We also find the Galliana’s reliance on the Leblanc case misplaced. Unlike in Leblanc, as noted above, we find no ambiguity in the 1957 right of way agreement regarding Entergy’s exclusive right to maintain and control its electrical poles and attachments thereto located on the right of way. An inherent distinction exists in the nature of the thing at issue in Leblanc — a tree — as opposed to the thing at issue in this case — electrical utility poles and guy wires. This distinction brings into play the issue raised by Entergy, and expressed by the trial court at the summary judgment hearing, regarding the ramifications that would result if liability were extended to all similarly situated utility customers who exercise these types of right of way agreements.

Like in Baker, in which we found the landowner had no ownership interest in the DOTD’s ditch, we find Hero Lands had no ownership interest in Entergy’s utility pole support wire. Also like in Baker, in which we found the landowner lacked the authority to change, redesign, or relocate the DOTD’s ditch, we find Hero Lands lacked the authority to alter the utility pole support wire. As noted above, although the right of way agreement included a provision regarding relocating the right of way in the event it is necessary to construct a railroad line in this area, that narrow provision does not grant Hero Lands any other right to change, redesign, or relocate Entergy’s utility pole support wire.

113The only corrective measure that the Gallinas claim should have been taken was, according to the petition, either to mark or to enclose or to wrap in visible plastic or similar-type material the steel wire attached to the utility pole. Pursuant to the right of way agreement, it is clear that Entergy is the only entity to have any responsibility for designing and maintaining the poles. Thus, Entergy is the only one that could have taken these corrective measures.

Addressing a similar issue, we recently affirmed a judgment against Entergy as the sole custodian of a light standard that fell in a hurricane and injured the plaintiff. Joseph v. Entergy, 2000-2213 (La.App. 4 Cir. 2/13/02), 811 So.2d 54, writ denied, 2002-0744 (La.5/10/02), 815 So.2d 846. In that case, we rejected Entergy’s argument that the trial court erred in dismissing its cross-claim against the landowner, the City of New Orleans. We found that under the terms of the contractual agreements between the City and Entergy it was clear that “Entergy, the only provider of electricity to the city, was the only entity to have any responsibility for the repair and maintenance of the light standards.” Joseph, 2000-2213 at p. 4, 811 So.2d at 58. By analogy, we find Entergy was the only entity to have responsibility for the utility pole and guide wire.

For these reasons, we conclude that the trial court did not err in granting summary judgment in favor of Hero Lands.

PRESCRIPTION

Tort actions are governed by a one-year liberative prescription period, which commences to run from the day injury is sustained. La. C.C. art. 3492. Prescription statutes are construed strictly against prescription. Lima v. Schmidt, 595 So.2d 624, 629 (La.1992). The defendant has the burden of proving prescription except when the petition on its face reveals that the claim isj^prescribed. In this case, Entergy was not added as a defendant until over a year after the accident. As a result, the petition is prescribed on its face, and the burden shifted to the Gallinas to establish that prescription was suspended, interrupted, or renounced.

The Gallinas assert two theories in support of their argument that their claim against Entergy is not prescribed. First, they argue, as alleged in their petition, that Entergy and Hero Lands are joint tortfeasors and that suit against Hero Lands interrupted prescription as to Entergy. La. C.C. art. 2324(C) provides that suit against one joint tortfeasor interrupts prescription against all joint tortfeasors. Yet, “where no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another tortfeasor, who is not timely sued, since no joint or solidary obligation exists.” Morris v. Westside Transit Line, 2002-1029, pp. 6-7 (La.App. 5 Cir. 2/25/03), 841 So.2d 920, 925, writ denied, 2003-0852 (La.5/16/03), 843 So.2d 1132. Such is the case here. Although Hero Lands was timely sued, it has been absolved of liability. Prescription thus was not interrupted as to Entergy since no joint or solidary obligation exists.

The Gallinas’ other argument is based on the relation back concept codified in La. C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or oecur-rence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original petition.

liRLa. C.C.P. art. 1153. They argue that the amended petition substituting LP & L (Entergy) for XYZ related back to the original petition.

The classic relation-back example is when, as in this case, a plaintiff adds a new defendant; such an amendment will relate back only if the following criteria are satisfied:

(1) the new claim arises out of the same transaction or occurrence set forth in the original pleading;
(2) the new or substituted defendant received such notice of the institution of the action that he would not be prejudiced in maintaining a defense;
(3) the new or substituted defendant knew or should have known that but for a mistake concerning the identity of the proper party defendant, the original action would have been brought against him; and
(4) the substitute defendant is not a wholly new or unrelated defendant.

Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(k)(1996). (citing Ray v. Alexandria Mall, Through St. Paul Property and Liability Ins., 434 So.2d 1083 (La.1983)).

Finding the Gallinas’ reliance on Article 1153 misplaced, the trial court reasoned that the second and third Alexandria Mall criteria, enumerated above, were not satisfied because there was no indication in the record that Entergy was made aware of the original suit or that its exclusion from the original petition was merely an identification mistake. Rather, the court found that naming XYZ in lieu of Entergy as the entity responsible for the power pole support line was “merely an error of omission without excuse.” Indeed, the court commented that this was especially true given “Entergy is commonly known to be the electrical provider for the entire area encompassed by this judicial district and is obviously responsible |1fifor electric transmission lines and power poles.” We find no error in the trial court’s conclusion that the Gallinas’ amended petition substituting LP & L (Entergy) for XYZ did not relate back.

For these reasons, we thus find Gallinas’ argument that the trial court erred in sustaining Entergy’s peremptory exception of prescription unpersuasive.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Although the caption of the petition spells the minor child's name ''Devin/' the body of the petition spells it "Devon.” For consistency sake, we use the spelling in the caption, "Devin” throughout this opinion.

      . Alternatively, Hero Lands asserted that the Recreational Use Immunity statutes, La. R.S. 9:2791 and 9:2795, applied; however, the trial court rejected that argument. Although Hero Lands argues this issue in opposition to the Gallinas' appeal, we find it unnecessary to reach it.

      . As the Gallinas note, the potential theories of Hero Lands' tort liability are negligence under La. C.C. art. 2316, which provides that "[e]veiy person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or by his want of skill,” and strict liability under La. C.C. art. 2317.1, which provides that:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
      La. C.C. art. 2317.1. The latter article is actually a form of negligence because it requires proof that the defendant have knowledge of the defect.

      . The Gallinas further argue that the second prong of the test for determining garde was satisfied because Hero Lands derived benefits from the right of way; namely, it was paid for the right of way, it obtained access to electrical power from the right of way, and it improved its property. Still further, the Galli-nas argue that Hero Lands failed to present any evidence showing that there were no issues of material fact as to the remaining element of La. C.C. arts. 2317.1 or 2316 liability, i.e., the unreasonable risk of harm factor.

      . As noted above, the provision reserving to Hero Lands the right to use the area stipulated that "said line and Right of Way shall never be fenced by the Grantee [Entergy] and that the Grantor [Hero Lands] shall have full use of said Right of Way and the right to cultivate and otherwise use said Right of Way..."

      . Nor can the Gallinas rely on the naming of XYZ, a fictitious defendant, in the original petition. "Prescription is not interrupted as to an actual defendant when only a fictitious defendant is named in a petition, unless prescription is interrupted by some other means.” Hill v. Shell Oil Co., 99-1322, p. 4 (La.App. 5 Cir. 4/25/00), 760 So.2d 511, 512-13; see also Thomas v. Doe, 542 So.2d 740, 741 (La.App. 4 Cir.1989)(citing Bankston v. B & H Air Tools, Inc., 486 So.2d 199, 200 (La.App. 1 Cir. 1986)).


source: Caselaw Access Project

author: JjBAGNERIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mary L. TOUPS, a/k/a Mary Billiot.
    No. 2000-KA-1944.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Eddie J. Jordan, Jr., District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Williams Boshea & Ehle, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).
   JjBAGNERIS, Judge.

This case is before us on remand from the Supreme Court. Specifically, the Supreme Court granted a rehearing in part for the sole purpose of remanding the case to this court to consider the other issues assigned as error in defendant’s original appeal. The essential facts and procedural history, as set forth in this court’s previously published opinion, are as follows.

STATEMENT OF THE CASE

Defendant Mary L. Toups, aka Mary Billiot (“the defendant”), was charged by bill of information on December 7, 1999, with possession of cocaine, a violation of La. R.S. 40:967(C). The defendant pled not guilty at her December 10, 1999 arraignment. The trial court denied the defendant’s motion to suppress the evidence on December 22, 1999. At trial on February 9, 2000, a six-member jury, found the defendant guilty as charged. On March 1, 2000, the trial court denied the defendant’s motion for new trial and/or post-verdict judgment of acquittal. The defendant waived all legal delays and was sentenced to four years at hard labor, with credit for time served. On May 8, 2000, after being advised of her rights and waiving them, the defendant admitted a prior conviction and was adjudicated a second-felony habitual offender. After the defendant waived all |2Iegal delays, the trial court vacated her original sentence and resentenced her to four years at hard labor, with credit for time served. The defendant’s motion for appeal was granted on that same date.

FACTS

New Orleans Police Officer Dennis Bush testified that on the evening of October 18, 1999, he and five other officers executed a search warrant at a residence located at 633 N. Scott Street. They were in search of a male known as “Stan.” After receiving no response at the front door, Officer Bush entered the “shotgun” residence. Officer Bush testified that the defendant and Stanley Williams (“Williams”) were found seated on a sofa in the front living room, facing each other. In another room, police found an elderly male connected to some type of respirator. He was the only other person found in the residence. Two pieces of crack cocaine, three clear glass crack pipes and a razor blade were observed on a coffee table that was positioned directly in front of the sofa on which the defendant and Williams were sitting. Officer Bush identified the crack cocaine and the crack pipes. Officer Bush admitted on cross-examination that he had no knowledge of the defendant, and that Williams had been residing there for a period of months. He further acknowledged that even though he arrested the defendant for possession of the contraband, he had not seen her smoking out of one of the pipes. He admitted stating at an earlier hearing that he did not have any evidence to “connect” the defendant to this contraband. Officer Bush then conceded that he did not arrest the defendant for possession of eighteen other pieces of crack cocaine because he did not believe she was “connected” to them. On redirect examination, Officer Bush testified that he observed the residence for ^approximately one-half hour before executing the search warrant, and he had not seen the defendant enter during that time.

New Orleans Police Detective Jeff Keat-ing observed the defendant and Stanley Williams seated on a sofa when he entered the residence. He confirmed that three crack pipes and two rocks of crack cocaine were seized from the coffee table. Detective Keating said he also seized a plastic container containing sixteen pieces of crack cocaine that was next to Williams, although it was not in “plain view.” Three hundred and four dollars was also seized from the same area.

Corey Hall, employed by the New Orleans Police Department Crime Lab, was qualified by stipulation as an expert in the analysis of controlled dangerous substances, specifically cocaine. He tested two pieces of a rock-like substance and three glass tubes related to the defendant’s case, and he said that all were positive for cocaine. He also stated that seventeen pieces of rock-like substance in a plastic container tested positive for cocaine, as did a metal tube. Mr. Hall acknowledged on cross examination that it did not appear from a document presented to him by defense counsel that any of the items had been submitted for fingerprint identification.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, the defendant claims that the evidence is insufficient to support her conviction.

This court set forth the well-settled standard for reviewing convictions for 14sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

The defendant was convicted of possession of cocaine, a violation of La. R.S. 40:967, which makes it unlawful for any person to knowingly or intentionally possess a controlled dangerous substance. To convict for possession of a controlled dangerous substance, the State must prove that the defendant knowingly possessed it. State v. Handy, 2000-0051, p. 4 (La.App. 4 Cir. 1/24/01), 779 So.2d 103, 105; State v. Lewis, 98-2575, p. 3 (La.App. 4 Cir. 3/1/00), 755 So.2d 1025, 1027. Guilty knowledge is an essential element of the offense of possession of a controlled dangerous substance. State v. Ricard, 98-2278, p. 7, 99-0424 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397, writ denied, 2000-0855 (La.12/18/00), 775 So.2d 1078. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support conviction. State v. Robinson, 99-2236, p. 5 (La.App. 4 Cir. 11/29/00), 772 So.2d 966, 970. “A person may be deemed to be in joint possession of a drug which is in the physical possession of a companion if he willfully and knowingly shares with the other the right to control it.” State v. Booth, 98-2065, p. 5 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, 742. However, mere presence in an area where drugs are found is insufficient to establish constructive possession. State v. Walker, 99-1957, p. 3 (La.App. 4 Cir. 5/17/00), 764 So.2d 1130, 1134. Factors to be considered in determining whether a defendant exercised dominion and control over drugs are: the defendant’s knowledge that illegal drugs were present in the area; the defendant’s relationship with the person in actual possession; the defendant’s access to the area where the drugs were found; evidence of recent drug use; the defendant’s proximity to the drugs; and evidence that the area was being frequented by drug users. State v. Holmes, 99-0898 (La.App. 4 Cir. 6/27/00), 791 So.2d 669; State v. Mitchell, 97-2774, p. 12, 98-1128, 98-1129 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 328.

The defendant cites State v. Bell, 566 So.2d 959 (La.1990), where police approached a vehicle to request that the occupants, the driver and his passenger, turn down music blaring from the radio. One officer noticed a distinctively wrapped package, containing what was later determined to be cocaine, among |fisome cassette tapes in a plastic console between the front seats. Both men were convicted of attempted possession of cocaine, which convictions were affirmed by this court. There had been no evidence presented that the passenger had any other drugs in his possession or on his person, that he appeared under the influence of narcotics, or that he had possession of any drug paraphernalia. The court also noted that the vehicle was parked only two doors from the driver’s residence. The Louisiana Supreme Court found that, based on the passenger’s mere presence in the car close to the sealed package, “even assuming he was aware of the contents,” a rational trier of fact could not have concluded that the passenger exercised dominion and control over the package, or that he willfully and knowingly shared the right to control it with the driver.

In State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990), an individual named Steele threw down drugs at the sight of police, and ran into his apartment. Police followed, and saw the defendant Jackson standing at homemade bar on which were displayed a glass pipe with cocaine residue, another pipe, a mirror with trace amounts of cocaine on it, a razor blade with traces of cocaine on it, test tubes, glasses, and a bag containing a material used to cut or dilute cocaine. This court held that because there was no indication that the residue-containing pipe was warm, that the defendant’s fingerprints were on any of the items, that the defendant [her blood] tested positive for the presence of cocaine, or that the defendant was anything more than a guest in the apartment, the evidence was insufficient to establish that the defendant exercised dominion and control over the objects which had cocaine residue in or on them.

In State v. Harris, 585 So.2d 649 (La.App. 4 Cir.1991), police executing a search warrant at an apartment rented by the defendant’s brother found the |7defendant and another individual seated at a kitchen table on top of which were a plastic bag of cocaine, a cigarette pack containing fifty-two marijuana cigarettes, two plates with cocaine residue on them, a scale, some cash, and several other items which an expert testified were used to free-base cocaine. The defendant’s brother was standing at the kitchen sink free-basing cocaine. This court found that the evidence was sufficient to support a finding that the defendant possessed the cocaine and marijuana.

In State v. Kingsmill, 514 So.2d 599 (La.App. 4 Cir.1987), police stopped a vehicle containing four men, and the front seat passenger stepped out and dropped a marijuana cigarette. A large plastic bag containing marijuana was found on the front floorboard near the passenger seat. All four men were arrested for possession of marijuana. During a subsequent search of the vehicle, an open cardboard box was found in the middle of the rear seat, containing a scale and some other drug paraphernalia, as well as a plastic bag with two smaller bags of cocaine inside. The four men were then arrested for possession of cocaine. Police testified that one defendant informed them that all four had pooled their money to purchase the marijuana and cocaine. This court found that the evidence was sufficient to support a finding that the two defendants appealing their convictions for possession of cocaine, the front seat passenger and one rear seat passenger, had exerted dominion and control over the cocaine.

In the instant case, it is undisputed that the target of the narcotics investigation was Stanley Williams, the known resident of the premises. Williams was the suspected drug dealer, and seventeen pieces of crack cocaine were found in a plastic container next to him. All of the evidence points to Williams having dominion and control over not only those seventeen pieces of cocaine in the plastic | ¡¡container, but also the two pieces and the three crack pipes on the coffee table. There was no evidence to suggest that the defendant lived in the residence. There was no evidence as to her relationship with Williams. While the two pieces of crack cocaine and three crack pipes were on the coffee table directly in front of the sofa on which the defendant and Williams were sitting, and the defendant had been inside of the residence for at least thirty minutes before police entered, there was no direct evidence that anyone in the residence had been smoking crack cocaine. There was no evidence of smoke, an unusual odor, or warm crack pipes. Nor was there evidence that any means of combusting crack cocaine was on the coffee table, such as matches or a cigarette lighter. There was no evidence that the defendant purchased one or both of the two rocks found on the coffee table, thus gaining dominion and control over one or both, and then she decided to linger and socialize with Williams. Considering the evidence adduced at trial, one can only speculate as to what the defendant was doing in the residence. She could have been a non-drug using member of a neighborhood church proselytizing defendant or an unrepentant crack addict preparing to prostitute herself in exchange for a rock of crack cocaine. While any rational trier of fact could have found that the defendant had knowledge of the cocaine and crack pipes on the coffee table, there was no evidence from which any rational trier of fact could have concluded beyond a reasonable doubt that the contraband was subject to the defendant’s dominion and control at the point when police entered. Nor is there any evidence from which it could be concluded beyond a reasonable doubt that the defendant specifically intended to gain dominion and control over any cocaine or cocaine-tainted contraband and did or omitted to do an act toward the accomplishing of that object so as to constitute the crime of attempted possession of cocaine.

| flThere is merit to this assignment of error. Consequently, the defendant’s conviction and sentence are hereby vacated.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, argued in conjunction with Assignment of Error Number One, defendant asserts that the trial court erred in denying her motion for new trial, as the evidence was insufficient to support the conviction.

La.C.Cr.P. art. 851, providing the grounds for new trial, does not contain a ground that the evidence was insufficient to support the conviction. Rather, ground (1) provides that the court, on motion of the defendant, shall grant a new trial whenever “[t]he verdict is contrary to the law and the evidence.” In State v. Snyder, 98-1078, p. 37, n. 21 (La.4/14/99), 750 So.2d 832, 859, n. 21, the court stated:

The denial of 1 a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject to review on appeal. State v. Skelton, 340 So.2d 256, 259 (La.1976) (“[W]e have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review.”) (citations omitted); State v. Bartley, 329 So.2d 431, 433 (La.1976) (“It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary to the law and the evidence presents nothing for appellate review.”) (citations omitted).

As the denial of a motion for new trial on the ground that the verdict was contrary to the law and evidence presents nothing for appellate review, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBERS THREE AND FOUR

In these assignments of error, defendant claims that the trial court erred in overruling defense counsel’s objections to parts of the prosecutor’s rebuttal 110argument, and in denying defense counsel’s motion for mistrial based on those improper arguments.

The prosecutor commented on Stanley Williams’ role in the case, inferring from the evidence that he was a distributor of cocaine, and distributed cocaine to defendant. Defendant argues that in making this argument the prosecutor violated La.C.Cr.P. art. 770(2)’s prohibition against referring to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Defendant suggests that the prosecutor painted a scenario of defendant being involved in drug distribution, as opposed to drug possession. There is no merit to this argument. The prosecutor was merely attempting to paint a scenario in which defendant gained dominion and control over all or part of the cocaine on the coffee table, by inferring from the evidence that Stanley Williams had distributed it to her.

Defendant also argues that the prosecutor improperly appealed to community sentiment by stating to the jury:

.You know, maybe you want to cut her a break. Maybe you want to just cut her a break. I ask that [sic] don’t cut her a break by finding her not guilty. You’d be doing a disservice to the community.

The trial court sustained defense counsel’s objection to this plea, but denied the motion for mistrial. The State’s argument shall not appeal to prejudice, and its rebuttal shall be confined to answering the argument of the defendant. La.C.Cr.P. art. 774. There is no indication that the above comment was in answer to the argument of defense counsel. The Louisiana Supreme Court has repeatedly held that prosecutors may not turn closing arguments “into a plebiscite on crime.” State v. Castleberry, 98-1388, p. 42 (La.4/13/99), 758 So.2d 749, 776, cert. denied, Castleberry v. Louisiana, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999), quoting State v. Eaton, 524 So.2d 1194 (La.1988). Upon motion of a defendant, a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. La.C.Cr.P. art. 775. “Mistrial is a drastic remedy, and is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial.” State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183, cert. denied, Wessinger v. Louisiana, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999). “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” Id. Further, “[e]ven where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence.” State v. Snyder, 98-1078, p. 18 (La.4/14/99), 750 So.2d 832, 846; Ricard, 98-2278 at p. 5, 751 So.2d at 396.

It cannot be said that the trial court abused its discretion in implicitly determining that the prosecutor’s plea to the jury did not make it impossible for defendant to obtain a fair trial, and thus, that a mistrial was not warranted. Accordingly, we find no merit to these assignments of error.

CONCLUSION

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

REVERSED; CONVICTION AND SENTENCE VACATED


author: LCANNIZZARO, Judge.

text:
    STATE of Louisiana v. Marvin DAVIS.
    No. 2002-KA-2061.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Eddie J. Jordan, Jr. District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

      Dwight Doskey, New Orleans, LA, for Defendant/Appellant, Marvin Davis.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   LCANNIZZARO, Judge.

STATEMENT OF THE CASE

The defendant, Marvin Davis, was charged in a bill of information with possession of cocaine in violation of La. R.S. 40:967 and with possession of marijuana, after having been previously convicted of possession of marijuana (“possession of marijuana, second offense”), in violation of La. R.S. 40:966. The defendant pled not guilty to these charges. A few weeks later the court held a hearing on a motion to suppress the evidence seized in connection with the defendant’s arrest. The motion was denied. The defendant was subsequently tried before the court in a bench trial and was found guilty as charged. At a sentencing hearing, the defendant was sentenced to forty months with credit for time served but was then charged under the Habitual Offender Law, La. R.S. 15:529.1. The defendant pled guilty to the habitual offender charge. The court then vacated the original sentence, adjudicated the defendant as a third felony offender, and again sentenced him to forty months with credit for time served. It is unclear from the record whether the defendant was sentenced to forty months on' both of the possession offenses of which he was convicted or whether he was sentenced on only one of the offenses.

[¡¿Prior to his sentencing, the defendant filed both a motion for a new trial and a motion for a post verdict judgment of acquittal. The motion for a new trial was denied several months after the defendant was sentenced. There is nothing in the record, however, to reflect that the court ever ruled on the other motion.

STATEMENT OF THE FACTS

At the defendant’s trial New Orleans Police Department (“NOPD”) Officer Herman Cade testified that he was conducting surveillance from an unmarked police car in the lower Ninth Ward of New Orleans. Officer Cade observed the defendant park his white van in a park on Lizardi Street. Officer Cade said that he then saw the defendant meet a black male in the park, where Officer Cade observed the two men exchange “two things”, one of which appeared to be money. Officer Cade testified that what transpired appeared to him to be a drug transaction.

Officer Cade testified that he then observed the defendant conduct another transaction that also appeared to be a drug transaction. Officer Cade said that the defendant was in his van when a red car with a female driver pulled in front of the van. The defendant exited the van, went to the red car, returned to the van, and then went back to the red car. The defendant returned to his van a second time and drove away. The female driver of the red car also drove away. Officer Cade pursued the driver of the van and made several attempts to get him to stop by activating the siren on his unmarked police car, but the driver of the van would not stop. Officer Cade then radioed for assistance.

|oNOPD Officer Kenneth Quetant testified at trial that he and his partner, NOPD Officer Mark Wilson, responded to Officer Cade’s call for assistance. Officers Que-tant and Wilson stopped the defendant and ordered him to exit his van. As the defendant exited his van, Officer Cade cautioned Officer Quetant to “watch his [the defendant’s] hands, watch his hands,” because Officer Cade had seen that the defendant’s hand was clenched into a fist. Officer Quetant saw the defendant drop a white napkin from his hand as he got out of the van, and Officer Cade retrieved the napkin and a white, rock-like substance that he saw inside the napkin when it fell on the ground. The defendant was arrested and handcuffed. When Officer Quetant was in the process of securing the defendant’s van after the arrest, Officer Quetant looked into the van from the open door on the driver’s side and noticed a “hand-rolled cigarette containing a green vegetable matter” in an ashtray. Believing it to be marijuana, the officer seized the cigarette.

NOPD Officer Joseph Tafaro testified at the trial that he tested both the rock-like substance that was discarded by the defendant and the cigarette that was recovered from the defendant’s van. The rock-like substance tested positive for cocaine, and the cigarette tested positive for marijuana.

The defendant testified at trial and admitted that he had prior convictions for possession of cocaine and marijuana and for being a felon in possession of a firearm. However, he denied being guilty of the charges for which he was then being tried. The defendant testified that the female driving the red car that Officer Cade saw was his girlfriend and that the only thing Officer Cade witnessed was the defendant giving her a kiss. The defendant also testified that his van did not have an ashtray. The defendant further claimed that Officer Cade was “out to get me for |4the woman he want [sic].” The defendant testified that the woman to whom he referred was his ex-wife.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the court erred in denying his motion to suppress the evidence. It is uncontested that the evidence was seized without a warrant. The defendant contends that the police officers had no right to stop him and that the contraband that was used as evidence against him at trial was obtained illegally in violation of his constitutional rights.

Investigatory Stop

The first issue that must be considered is whether the officers who stopped the defendant had reasonable suspicion to conduct an investigatory stop. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. 1868. According to Terry, such an investigatory stop is not an unlawful “seizure” and, therefore, does not violate the prohibition against unreasonable searches and seizures established by the Fourth Amendment to the United States Constitution. U.S. Const. amend. IV.

In Louisiana there is statutory authorization for investigatory stops on less than the probable cause required for an arrest. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an | soffense and may demand of him his name, address, and an explanation of his actions.”

In State v. Dank, 99-0390 (La.App. 4 Cir. 5/24/2000), 764 So.2d 148, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case.... Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. In assessing the reasonableness of an investigatory stop .... [t]he totality of the circumstances must be considered in determining whether reasonable suspicion exists. The detaining officers must have knowledge of specific, articu-lable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered....

99-0390, pp. 4-5; 764 So.2d at 155 (citations omitted).

In the instant case Officer Cade testified at trial that he observed the defendant conduct what appeared to Officer Cade to be two drug transactions. After the defendant drove away from the scene of the second transaction, Officer Cade pursued the defendant’s van and signaled the defendant to stop. The defendant ignored Officer Cade, who then radioed for assistance. Officer Cade had witnessed what reasonably appeared to him, based on his past experience, training, and common sense, to be criminal activity by the defendant. Therefore, under the Terry and the Dank cases, as well as La.C.Cr.P. art. 215.1(A), we find that the police officers had probable cause to conduct an investigatory stop of the defendant’s van.

| ^Warrantless Seizure of Evidence and the Plain View Exception

Once reasonable suspicion to conduct an investigatory stop has been established, it is necessary to determine whether the warrantless seizure of the cocaine and the marijuana made by the police officers was authorized under an exception to the requirement that a search warrant must be obtained prior to seizing evidence. In State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330, the Louisiana Supreme Court discussed the subject of warrantless searches and seizures as follows:

It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement.

Id., p. 6, 842 So.2d at 335.

An exception to the requirement that a warrant must be obtained before evidence can be seized is the plain view exception. In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), the United States Supreme Court stated that “[i]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” 390 U.S. at 236, 88 S.Ct. 992, citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

More recently, in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the United State Supreme Court discussed the judicial development of the plain view exception and stated:

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving |7at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the war-rantless seizure. First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.” ... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

Id. at 136-37, 110 S.Ct. 2301.

This Court, in State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205, discussed the plain view exception as follows:

In order for an object to be lawfully seized pursuant to the plain view exception to the Fourth Amendment, (1) there must be a prior justification for the intrusion into a protected area; (2) in the course of which the evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Hernandez, 410 So.2d 1381, 1383 (La.1982); State v. Tate, 623 So.2d 908, 917 (La.App. 4 Cir.), writ denied, 629 So.2d 1126 and 1140 (La.1993). In Tate, this court further noted: In Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Court held that evidence found in plain view need not have been found inadvertently in order to fall within this exception to the warrant requirement, although in most cases evidence seized pursuant to this exception will have been discovered inadvertently. Tate at 917.

Id., p. 10, 822 So.2d at 211, quoting State v. Smith, 96-2161 (La.App. 4 Cir.6/3/98), 715 So.2d 547.

In the instant case when the defendant exited his van, Officer Cade observed that he had something in his fist and alerted Officer Quetant to this fact. When the defendant discarded the object he was holding in his fist, the napkin and a rock-like object that had been wrapped in the napkin fell on the ground. At this point both the napkin and the object were in plain view. When Officer Quetant was securing the van after the defendant had been arrested for the possession of cocaine, which |sis what the object that had been wrapped in the napkin appeared to be, the marijuana cigarette was in plain view in the van’s ashtray. Officer Quetant was in the area of the van pursuant to a valid investigatory stop, the contraband that was seized was in plain view of Officer Quetant, and its incriminating nature was readily apparent. Therefore, we find that the seizure of the evidence introduced at the defendant’s trial was lawfully seized pursuant to the plain view exception to the requirement of obtaining a warrant to seize evidence. The court correctly denied the defendant’s motion to suppress the evidence.

ASSIGNMENT OF ERROR NUMBER 2

Defects in the Habitual Offender Proceeding

The defendant has raised as one of his two assignments of error several alleged errors patent in his sentence as a habitual offender. First, he alleges that he was adjudicated a habitual offender on each of the two counts of possession of which he was convicted, although the convictions arose from a single criminal episode. Second, the defendant alleges that he never pled guilty to the charge of being a habitual offender. Third, the defendant alleges that before the judge adjudicated him as a habitual offender, the judge failed to advise him of his constitutional right to remain silent.

Adjudication as Habitual Offender on Two Counts from Single Criminal Episode

The defendant argues that the State did not seek to have him adjudicated as a habitual offender on only one of the two counts of possession of which he was convicted in this case. Rather, he argues that the State sought to use both counts of the conviction to impose a sentence under the Habitual Offender Law.

In State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), the Louisiana Supreme Court held that “[mjultiple convictions obtained the same day for offenses arising out of one criminal episode should be considered as one conviction for purposes of applying the habitual offender law in sentencing.” Id. at 1109. In State v. Ward, 94-0490 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, this Court discussed the evolution of the rule articulated in Porter and stated that “[ujnder Porter, the new general rule is that the trial court can multiple bill convictions rendered on the same day.” Id., p. 12, 573 So.2d at 568 (emphasis in original). In Ward, however, this Court also stated that under Porter there is an exclusion from this general rule where more than one conviction is rendered on the same day and the convictions arise out of the same criminal act, episode, or event. Id.

There is another issue that must be addressed with respect to a conviction of the offense of possession of marijuana, second offense. La. R.S. 40:966(E)(1) provides that the penalty for a conviction of a first time offense of possession of marijuana shall be a fine not to exceed five hundred dollars or imprisonment in the parish jail for not more than six months or both. La. R.S. 40:967(E)(2) provides that the penalty for a conviction of a second offense of possession of marijuana shall be a fíne not to exceed two thousand dollars or imprisonment for not more than five years with or without hard labor or both. Because possession of marijuana, second offense is a crime for which an offender may be sentenced to imprisonment at hard labor, it is a felony. La. R.S. 14:2. A first time offense of possession of marijuana is a misdemeanor, however, because it cannot be punished by imprisonment at hard labor. Because what would be a misdemeanor as a first offense is elevated to the status of a felony in the case of a second offense, a |inconviction for possession of marijuana, second offense is not subject to being further enhanced under the Habitual Offender Law. Possession of marijuana, second offense, is already an enhanced offense. See generally State v. Anders, 2000-0910 (La.App. 4 Cir. 1/31/01), 778 So.2d 1227; State v. Hymes, 513 So.2d 371 (La.App. 4th Cir.1987).

In the instant case, the defendant was convicted on the same day on two counts: possession of cocaine and possession of marijuana, second offense. Both convictions arose out of the same criminal episode. Therefore, only one of these convictions can be used to enhance the defendant’s sentence in the habitual offender proceeding. Additionally, because possession of marijuana, second offense is already an enhanced offense, only the conviction of possession of cocaine can be used as an instant offense under the Habitual Offender Law in this case.

The State charged the defendant as a fourth felony offender, based on a multiple bill of information listing as predicate offenses a 1987 burglary conviction, a 1989 conviction for distribution of cocaine, a 1995 conviction for possession of cocaine, and the two current convictions considered as a single offense. The court found that the State failed to prove the defendant’s identity in connection with the 1987 burglary conviction, and the defendant was adjudicated as a third felony offender.

It is clear from the record that both of the current convictions were not used as two, separate offenses in the habitual offender proceeding. Therefore, the defendant’s contention that each of the current convictions was used as an instant offense and, therefore, created an error patent is without merit, because only one sentence was imposed as to only one count and not both counts.

InGuilty Plea and Right to Remain Silent

The defendant argues that his adjudication as a habitual offender is defective, because he was not advised of his right to remain silent and of his right to a formal hearing on the multiple bill of information charging him as a habitual offender. La. R.S. 15:529.1(D) provides that when such a bill of information is filed, the court rendering the conviction to be enhanced “shall inform him [the defendant] of the allegation contained in the information and of his right to be tried as to the truth thereof according to law....” In State v. Johnson, 432 So.2d 815 (La.1983), the Louisiana Supreme Court found that the phrase “if he acknowledges or confesses in open court, after being duly cautioned as to his rights” contained in La. R.S. 15:529.1(D) recognizes that the defendant has a right to remain silent at habitual offender hearings. The Supreme Court further found that La. R.S. 15:529.1(D) “implicitly provides that the defendant should be advised, by the court, of his statutory right to remain silent” and that the acknowledgment of the defendant’s prior felony conviction was invalid, because he was not advised of that right. 432 So.2d at 817.

This Court applied the tenets of the Johnson case in State v. McGee, 98-2116, 98-2124 (La.App. 4 Cir. 2/23/00), 757 So.2d 50. In the McGee case this Court held that if a defendant pleads guilty, acknowledges guilt, or confesses in a proceeding on a multiple bill of information, “the trial court must first duly caution him as to his rights.” Id., p. 17, 757 So.2d at 61. See also State v. Martin, 427 So.2d 1182 (La.1983).

In the instant case there is nothing in the record to indicate that the defendant was advised of his rights prior to the court’s acceptance of the defendant’s guilty 11 ¿plea in the hearing where he was adjudicated a habitual offender. Therefore, this creates an error patent in this case.

ERRORS PATENT

In addition to the errors patent discussed above in connection with the defendant’s second assignment of error, we have noted another error patent in the instant proceedings This error patent relates to the sentencing of the defendant.

La.C.Cr.P. art. 873 provides as follows:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

La.C.Cr.P. art. 853 provides, in relevant part, as follows:

A motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.

La.C.Cr.P. art. 821(A) similarly provides that “[a] motion for post verdict judgment of acquittal must be made and disposed of before sentence.”

In the instant case, the record indicates that the defendant’s motion for a new trial was denied months after, rather than at least twenty-four hours before, his sentencing. Additionally, the record before us does not reflect that the motion for post verdict judgment of acquittal has ever been considered. Therefore, the requirements of La.C.Cr.P. arts. 821(A), 853, and 873 were not met.

In State v. Augustine, 555 So.2d 1331 (La.1990), superseded, in part, by statute as stated in State v. Martin, 93-1915 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, the Louisiana Supreme Court considered the mandatory delays specified in La.C.Cr.P. art. 873 that must be observed before a sentence can be imposed. The Supreme Court stated that “[a] sentence illegally imposed ... is null, and constitutes no valid premise for continued incarceration.” 555 So.2d at 1334. Therefore, although the Court upheld the defendant’s conviction, his sentence was vacated, and the case was remanded to the court for resen-tencing.

In State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, the Supreme Court again considered the mandatory delays specified in La.C.Cr.P. art. 873 and distinguished that case from the Augustine case. In Seals the Court stated as follows:

The mandatory nature of the sentence of death distinguishes this case from the [sic] State v. Augustine, 555 So.2d 1331 (La.1990), where there was to be a decision by the trial judge on the term of years to be imposed. Delay or no delay, the sentence the judge was required to impose would have been the same. Thus, no prejudice could possibly have resulted from the failure of the court to comply with the delay.... Absent a showing that prejudice resulted from the failure to afford the statutory delay, reversal of the prematurely imposed sentence is not required.

Id., p. 17, 684 So.2d at 380.

This Court has also considered the mandatory delays in sentencing. Most recently, in State v. Foster, 2002-0910 (La.App. 4 Cir. 12/11/02), 834 So.2d 1188, this Court recognized that there are exceptions to the requirement of mandatory delays in cases where the failure to observe the delays is considered harmless error. In Foster, however, there was no indication that the defendant waived the statutory delays. Additionally, the defendant was appealing the excessiveness of his sentence. Therefore, this Court found that the mandatory twenty-four hour delay established by La. C.Cr.P. art. 873 delays had to be observed, and the case was 114remanded to the trial court so that the defendant could be resen-tenced. Where the sentence to be imposed is mandatory and not within the trial court’s discretion, this Court has held that the failure to observe the mandatory delays in sentencing is harmless error. State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078.

In the instant case the defendant was sentenced prior to a disposition being made on-the defendant’s motion for a new trial and his motion for a post verdict judgment of acquittal. This case, therefore, is distinguishable from the cases discussed above. The delay period for sentencing was never triggered, so it could not be waived. Only after the court has denied, if appropriate, both of the motions can the defendant be properly sentenced. The motion for a new trial was denied several months after the defendant was sentenced, but the motion for a post verdict judgment of acquittal is still outstanding. Therefore, this case is remanded to the court for the court to consider the defendant’s motion for a post verdict judgment of acquittal and, if denied, for a sentencing hearing to be held not earlier than twenty-four hours after a final disposition of that motion has been made, unless the delays are expressly waived.

We also note that the defendant was originally sentenced to forty months with credit for time served. The record does not indicate whether the defendant was sentenced for both possession of marijuana, second offense and possession of cocaine or for only one of the offenses. When and if the defendant is resentenced, the record should clearly reflect that the defendant is being sentenced for both offenses. The court must indicate for each count for which the defendant was convicted the specific sentence that was imposed for that count.

I ^CONCLUSION

Based on the foregoing we affirm the defendant’s conviction of possession of cocaine and his conviction of possession of marijuana, second offense. The defendant’s sentence is hereby vacated, and this case is remanded to the court for a disposition of the motion for a post verdict judgment of acquittal. If the motion is denied, a sentencing hearing shall be held no earlier than twenty-four hours after the final disposition of the motion. Then the defendant must be sentenced on both of the counts of which he was convicted. He must be sentenced as a first offender on the conviction of possession of marijuana, second offense. The possession of cocaine conviction may be used as the instant offense if a new hearing to adjudicate the defendant as a habitual offender is held. At any such hearing the defendant must be advised that he has the right to a formal hearing or trial, and he must also be advised of his constitutional rights, particularly that he has the right to remain silent at such a hearing.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED.

      . He was conducting surveillance, because there had been complaints that postal carriers had been robbed in the area.

      . From what can be gleaned from the record, the defendant seems to be basing his defense on the idea that Officer Cade was trying to frame the defendant on criminal charges, because of a relationship between Officer Cade and the defendant’s ex-wife.