author: JgFITZSIMMONS, J.

text:
    STATE of Louisiana v. Randall CORBETT.
    No. 2003 KA 1994.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Honorable Doug Moreau, District Attorney By Darwin C. Miller, Assistant District Attorney, Baton Rouge, Counsel for Appellant State of Louisiana.
    Francis Rougeou, Jr., Jennifer Pate, Baton Rouge, Counsel for Defendant/Appel-lee Randall Corbett.
    Before: FOIL, FITZSIMMONS and GAIDRY, JJ.
   JgFITZSIMMONS, J.

Randall Corbett and Heather Smith have been indicted with second degree murder of Marsha A. Fisher, a violation of La. R.S. 14:30.1(A)(3), and with possession with intent to distribute a Schedule I controlled dangerous substance, 3,4-methylen-edioxymethamphetamine (MDMA/Ecsta-sy), a violation of La. R.S. 40:966(A)(1). See La. R.S. 40:964, Schedule I, (C)(23). The statutory basis for the second degree murder prosecution is La. R.S. 14:30.1(A)(3), which applies to the killing of a human being “[wjhen the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I or II of the Uniform Controlled Dangerous Substances Law which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.” (Footnote omitted) Fisher died after ingesting ecstasy tablets purchased by Smith with money provided by Corbett. The state filed a motion to sever the co-defendants for trial. The trial court granted the motion.

Corbett filed a motion to quash in which he argued the state failed to charge an offense punishable under a valid statute. Although the allegations of the motion focus on the charge of second degree murder, the motion sought dismissal of the entire indictment. Corbett maintained the applicable portion of the second degree murder statute was designed to punish the actual distributor of the drugs: in this case, the man who sold the ecstasy to Smith. Corbett alleged that because he only provided funds for Smith to purchase the drugs, the prosecution against him should be quashed.

The trial court determined Corbett was a “purchaser,” not a distributor, and it granted Corbett’s motion to quash. Later, the court clarified its ruling, explaining that the conduct described in the state’s responses to the request for a bill of particulars was not punishable by either the second degree murder statute, La. R.S. 14:30.1(A)(3), or the possession with intent to distribute statute, La. R.S. 1 ,S40:966(A)(1). The court released Corbett from his bail responsibility. In this appeal, the state seeks review of the ruling granting the motion to quash.

At a separate proceeding, Heather Smith adopted Corbett’s motion to quash, and she argued the charges against her should also be quashed because she was merely an intermediary between the seller and the people who used the drugs. The trial court denied Smith’s adoption of Cor-bett’s motion. The court noted that Cor-bett provided the money for the drugs, but Smith actually provided Fisher with the drugs. In a writ application (2003 KW 1556), Smith has sought review of that ruling.

La. Const, art. I, § 13 requires the state to inform the accused in a criminal prosecution of the nature and cause of the accusation. The indictment should be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” La.Code Crim. P. art. 464. The state may provide information concerning the nature of the offense in the indictment alone, or in its responses to a defense request for a bill of particulars. See La.Code Crim. P. art. 484. The purpose of the bill of particulars is to inform the accused more fully of the nature and scope of the charge against him so he will be able to defend himself properly and to avoid any possibility of being charged again with the same criminal conduct. State v. DeJesus, 1994-0261 (La.9/16/94), 642 So.2d 854, 855 (per curiam).

A motion to quash may be based on the grounds that “[t]he indictment fails to charge an offense which is punishable under a valid statute” or that a bill of particulars has shown a ground for quashing the indictment under La.Code Crim. P. art. 485. La.Code Crim. P. art. 532(1) & (5). If it appears from the bill of particulars furnished under article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the | indictment, “the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured.” La.Code Crim. P. art. 485. The court may also order an indictment quashed if it appears that the conduct alleged against the defendant does not provide a legál basis for the offense charged. “The state may not ‘base an indictment for a serious offense ... upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation.’ ” State v. DeJesus, 642 So.2d at 855 (quoting State v. Legendre, 362 So.2d 570, 571 (La.1978)).

A motion to quash asserts pretrial pleas: pleas that do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters. The question of factual guilt or innocence is not before the court. State v. Byrd, 1996-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411, cert. denied, Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998). The trial court, in considering a motion to quash the indictment, must construe those facts set out in the bill of particulars to be true and determine whether or not, if proved, they constitute the crime charged. State v. Odom, 2002-2698, p. 7 (La.App. 1st Cir.6/27/03), 861 So.2d 187, 192, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. While evidence may be adduced, such may not include a defense on the merits. State v. Byrd, 1996-2302 at pp. 18-19, 708 So.2d at 411. A trial court’s ruling on a motion to quash is reviewed for abuse of discretion. State v. Odom, 2002-2698 at p. 6, 861 So.2d at 191.

In a motion for bill of particulars, Cor-bett asked the state to describe the manner in which Corbett distributed or dispensed a controlled dangerous substance to the victim. In response, the state defined the law on principals and alleged IsCorbett distributed the substance by delivering it to the victim, “whether by physical delivery, administering, or subterfuge.”

The state also referred to “offense” reports and the taped statements of Corbett, Smith, and T.J. Wilson. According to the police reports, by the time officers with the Baton Rouge Police Department were notified at 7:49 a.m. on August 25, 2001, Marsha Fisher had been dead for some time. Corbett was at the residence when the police arrived. He was obviously under the influence of a narcotic. Corbett told an officer that he and Fisher had taken ecstasy on the previous evening. At some point, Fisher told Corbett she was feeling badly. She then went to bed. Corbett claimed he fell asleep on the couch and was awakened when Heather Smith and T.J. Wilson knocked on the door at about 7:30 a.m. Corbett said he then discovered Fisher dead in the back bedroom. In his initial statement, Corbett denied any knowledge of where Fisher purchased the ecstasy. Corbett told the officers that, before the police arrived, Smith had removed the narcotics and paraphernalia that had been in the residence.

Corbett also gave a taped statement to the police, and that statement was different from his initial statement. He said Fisher had been smoking crystal methamphetamine throughout the day. He admitted cashing his paycheck and providing money for Smith to buy the ecstasy; after Smith and Wilson returned with the ecstasy, he and Fisher began doing ecstasy. After taking the ecstasy, Corbett noticed that various people came and went from the apartment. He ^remembered three men coming to the apartment and one of them going into the bedroom alone with Fisher. After a period of time, Corbett went into the bedroom to check on Fisher. He found Fisher on her back and the man staring at her. Corbett could tell Fisher was heavily under the influence of ecstasy. In an attempt to revive her, he put her in the shower. When this had no effect, he put her in the bed. She was “rolling hard,” experiencing the side effects of taking ecstasy. After a period of time, she stopped moving and Corbett thought she was asleep. He thought she would wake up fine, but some time later he felt her body turn cold. He rolled her over and could tell she was dead. He said he did not know what to do and was too scared to call for medical assistance. Smith and Wilson were not present when Fisher died. Although they returned to the residence after she died, they left before emergency personnel arrived.

Heather Smith gave a statement to the police in which she said Fisher was her best friend. Smith and Fisher often used drugs together, smoking crystal methamphetamine and marijuana on an almost daily basis. The two also ate and snorted crystal methamphetamine. Smith said Fisher also took pain pills and downers, such as Somas and Valium. Smith said she and Fisher had wanted to do ecstasy on the afternoon of August 24, and Smith had met a man who would sell her some tablets. Corbett gave Smith $255 to buy 15 tablets of ecstasy, and Smith called the man to make arrangements. Smith and T.J. Wilson then met the man at an arranged location to make the purchase, and they returned to Fisher’s residence with the ecstasy. Smith said she and Wilson each took a pill. Smith gave the remainder to Fisher and Corbett. Smith and Wilson then left the residence and spent the night elsewhere. When they returned at 7:30 a.m., they discovered that Fisher was dead. In the state’s response to the bill of particulars, the state quotes from a portion of Smith’s statement. When asked if she remembered how many pills she or Fisher took, Smith replied, ‘Well, I know Randall [Corbett] told me she |7he [sic] gave her two pills, now I wasn’t there to see it. I took probably four or five.”

T.J. Wilson also gave a statement to the police. He said that initially Fisher gave him and Heather Smith a check for $255 to use for the drug purchase, but he and Smith were unable to cash that check. Corbett then left to cash a check. When Corbett returned, he gave Smith money to use for the purchase. Wilson told the police that when he and Smith returned to the residence with the ecstasy they remained for about 15 minutes. During that time, Corbett and Fisher consumed some ecstasy tablets. According to Wilson’s account, Smith notified him at 3:30 a.m. that Fisher was dead. He and Smith had difficulty convincing Corbett to call the authorities. In the state’s response to the bill of particulars, the state quotes from a portion of Wilson’s statement. According to Wilson, when he and Smith returned to Fisher’s residence with the ecstasy, Corbett attempted to wake up Fisher so that she could take the ecstasy.

A relative of Fisher told police that Fisher had been taking numerous types of drugs for a long period of time: Fisher smoked crystal methamphetamine on an almost daily basis, and took ecstasy, Za-nax, Zanabar, Somas, and GHB (known as the “date rape drug”).

To determine if the trial court’s ruling on the motion to quash was correct, this court must determine if the conduct alleged against Corbett, in the state’s responses to the bill of particulars, provides a legal basis for the charged offenses. The pertinent portion of the second degree murder statute is as follows:

A. Second degree murder is the killing of a human being:

❖ * :fs
(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I or II of the Uniform Controlled Dangerous Substances Law which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.

|sLa. R.S. 14:30.1 (as amended by 1987 La. Acts No. 465, § 1) (footnote omitted). However, there is no statutory definition for “distributes” or “dispenses” in title 14.

In an attempt to provide definitions, Corbett, at one of the hearings held on the motion to quash, introduced minutes of a Senate Judiciary Committee meeting. During the meeting, one of the senators described Senate Bill 191 of 1987 as providing that, if a person “sells” a drug that results in the death of the buyer, the “seller” could be charged with second degree murder. In discussing the addition of subsections (A)(3) and (A)(4) to the second degree murder statute, Professor Cheney Joseph said, “The statute covers both the ‘street dealer’ who distributes directly to the ‘consumer’ [an apparent reference to La. R.S. 14:30.1(A)(3) ], as well as the ‘wholesaler’ who transmits the drugs to a ‘street dealer’ [an apparent reference to La. R.S. 14:30.1(A)(4) ] who distributes them to the ‘consumer’ who takes the drugs and dies as a ‘direct cause’ of the ingestion.” Cheney C. Joseph, Jr., Criminal Procedure, Developments in the Law, 1986-1987, 48 La. L.Rev. 257, 284 (1987). See also Cheney C. Joseph, Jr. & P. Raymond Lamonica, Criminal Jury Instructions § 10.30.1(A)(3),(4) in 17 Louisiana Civil Law Treatise (2003).

Under La. R.S. 40:966(A)(1), it is unlawful for any person to knowingly or intentionally possess MDMA, a Schedule I controlled dangerous substance, with the intent to distribute. For purposes of the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961 to 40:995, “distribute” is defined as “to deliver a controlled dangerous substance whether by physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to the lawful order of a practitioner.” La. R.S. 40:961(14). “Dispense” is defined as “to deliver a controlled dangerous substance to the ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding 1 (¡necessary to prepare the substance for such delivery.” La. R.S. 40:961(13). “Deliver” and “delivery” are defined as “the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” La. R.S. 40:961(10).

The case law has defined “deliver” as transferring possession or control. The transfer of possession or control, i.e., distribution, is not limited to an actual physical transfer between the culpable parties, but may be accomplished by the imposition of a third party. State v. Parker, 536 So.2d 459, 463 (La.App. 1st Cir.1988), writ denied, 584 So.2d 670 (La.1991).

A defendant may be guilty as a principal in the crime of distribution if he aids and abets in the distribution or directly or indirectly counsels or procures another to distribute a controlled dangerous substance. See La. R.S. 14:24. Although “[i]t is not necessary to ‘sell’ contraband to aid and abet its distribution,” a “distributor” must do more than merely receive the controlled substance as a user. State v. Celestine, 1995-1393, p. 3 (La.1/26/96), 671 So.2d 896, 897 (per curiam)(and cases cited therein).

The facts provided by the state in the bill of particulars do not support the essential element of distribution for the second degree murder charge, or the possession with intent to distribute charge. Although Corbett provided the money, the facts show that Fisher was a joint participant in the transaction. A person may be in joint possession of a drug if he willfully and knowingly shares with another the right to control the drug. State v. Hamil ton, 2002-1344, p. 11 (La.App. 1st Cir.2/14/03), 845 So.2d 383, 392. Corbett, Smith, Fisher, and Wilson jointly purchased and jointly used the ecstasy tablets. These allegations do not support a finding that Corbett’s actions went beyond those of a mere purchaser and |10consumer. Corbett did not sell, intend to sell, share in the proceeds of the sale, make any profit, or provide any assistance to the unidentified street dealer who sold the tablets to Smith for use by the group.

Accordingly, we find no error in the court’s ruling and the granting of Corbett’s motion to quash is affirmed.

GRANT OF MOTION TO QUASH AFFIRMED.

GAIDRY, J., concurs.

      . The taped statement of Corbett was introduced as an exhibit at a hearing held on Corbett's motion to suppress, and it was included in the appeal record. The taped statements of Smith and Wilson were not included in the appeal record. Those statements are summarized in the police reports, and the state quoted portions of those statements in the state’s response to the bill of particulars. Neither side has objected to the absence of those statements in the appeal record. We further notice that, at the initial hearing held on the motion to quash, the state asked the court to consider testimony introduced at the hearing held on Corbett's motion to suppress and the state's motion to sever. No testimony was introduced at the motion to sever, but testimony was introduced at the motion to suppress hearing. In any event, these transcripts are not pertinent for consideration of a motion to quash, wherein the court is limited to reviewing the indictment and the answers to the bill of particulars.

      . In its appeal, the state argues that the trial court erred by making factual findings in its consideration of the motion to quash. Rather than making any factual findings, the trial court accepted as true the information provided by the state in its answer, and supplemental answer, to Corbett's motion for a bill of particulars.


source: Caselaw Access Project

author: | ,GAIDRY, J.

license: Public Domain

text:
    Donald PETERS v. Jenny HARMSEN & LWCC.
    No. 2003 CA 1296.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Ted Williams, Baton Rouge, Counsel for Claimant/Appellant Donald Peters.
    Terrel A. Thomas, Baton Rouge, Counsel for Defendants/Appellees Jenny Harm-sen and Louisiana Workers’ Compensation Corporation.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | ,GAIDRY, J.

The claimant-appellant, Donald Peters, appeals an adverse judgment of the Office of Workers Compensation Administration, District 6, dismissing his claim for workers’ compensation benefits instituted against his employer, Jenny Harmsen, and her workers’ compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 30, 2001, Mr. Peters was employed as a laborer by Jenny Harmsen, performing work at the Dixieland Ranch in Folsom, Louisiana. He claims that he was injured as the result of the collapse of a makeshift wooden ramp as he was pushing a wheelbarrow loaded with wet sawdust and horse manure up the ramp. He reported the alleged accident that morning to Ms. Harmsen, and she observed the broken ramp and the wheelbarrow lying next to it. He sought treatment that day at the emergency room of St. Tammany Parish Hospital, providing a history of the reported accident and complaining of head pain and pain of the left side and low back. He was treated and released, being advised to seek followup care with his regular physician.

The defendants contend that Mr. Peters was a seasonal worker, and that he was advised shortly before the accident date that he would no longer be employed after November 30, 2001, a circumstance which they contend lends suspicion to the credibility of the alleged accident. Mr. Peters, on the bother hand, contends that it was only after reporting the accident at issue and seeking information relating to processing his medical bills for payment that he was advised that his employment was terminated.

The medical picture is necessarily complicated by the fact that Mr. Peters was the unfortunate victim of a mugging on December 13, 2001, less than two weeks after the reported accident and before he sought further treatment. In that incident, he suffered a serious injury to his left eye, including a detached retina, as well as trauma to the chest and a laceration of the left parietal area of the scalp.

Mr. Peters filed his claim for compensation benefits on January 11, 2002. Ms. Harmsen and LWCC filed their answer on May 15, 2002, denying that Mr. Peters sustained an accident and injury during the course and scope of his employment. In their subsequent pretrial statement, the defendants conceded the occurrence of the accident, but denied that any claimed disability was caused by the accident, as opposed to the intervening mugging. Shortly prior to the trial of the claim, LWCC tendered payment of one week of temporary total disability benefits to Mr. Peters.

The trial was conducted on January 8, 2003. At the conclusion of the trial, the workers’ compensation judge (WCJ) ruled that Mr. Peters failed to prove that an on-the-job accident occurred. The WCJ further found that even if an accident had occurred, he did not prove a causal relationship between the claimed accident and his subsequent medical problems. In her signed judgment, the WCJ stated her factual conclusion that Mr. Peters “did not meet his burden of proof to show that he sustained ... an accident and injury within the course and scope of his employment” and dismissed his claim with prejudice. From that judgment, Mr. Peters instituted the present appeal.

| ¿ANALYSIS

In a.workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Pertuis v. Architectural Fabrications, Inc., 01-2684, p. 6 (La.App. 1st Cir.12/20/02), 836 So.2d 450, 453, writ denied, 03-0231 (La.4/4/03), 840 So.2d 1216. The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the WCJ’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a WCJ’s factual finding only if, after reviewing the record in its entirety, it determines the WCJ’s finding was clearly wrong. Dressel v. Topeka Transfer & Storage, 02-0779, pp. 4-5 (La.App. 1st Cir.3/28/03), 844 So.2d 288, 291; Mitchell v. Terrebonne Parish School Board, 02-1021, pp. 3-4 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 532-33, writ denied, 03-2275 (La.11/26/03), 860 So.2d 1135. If the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 01-2812, p. 6 (La.App. 1st Cir 2/30/02),5 839 So.2d 82, 89, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219.

For purposes of workers’ compensation, an “accident” is statutorily defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). An “injury” is defined as including “only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom,” as opposed to other forms of disease from other causes. La. R.S. 23:1021(7)(a).

A workers’ compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is afforded great weight. Id. In Bruno, the Louisiana Supreme Court stated that a worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Therefore, if the worker testifies that he suffered an accident, a court must then look to see if the Bruno elements are satisfied. Coats v. American Tel. & Tel. Co., 95-2670, p. 5 (La.10/25/96), 681 So.2d 1243, 1245.

[fiAs correctly observed by Mr. Peters, the defendants did not seriously challenge the occurrence of the accident itself in their pleadings and pretrial statement. After review of the record and the evidence, we conclude the WCJ was clearly wrong in determining that no “accident” occurred. But this does not end our inquiry.

The WCJ based her factual conclusion that no accident occurred on her factual finding that the preponderance of the evidence did not establish a connection between Mr. Peters’s medical conditions and the claimed “accident.” That factual finding was in turn based upon her assessment of Mr. Peters’s credibility relating to his complaints and treatment, weighed in light of its inconsistency with other evidence and testimony. Strictly speaking, this may have been “putting the cart before the horse.” Certainly, the WCJ as trier of fact arrived at her factual conclusions after considering all of the evidence, and the issues relating to the accident itself and the etiology of Mr. Peters’s subsequent complaints were intertwined. Applying the Bruno standard to the evidence relating to the incident itself, we conclude that the factual questions raised regarding the weight and position of the wheelbarrow as described by Mr. Peters and the exact mechanism of his fall do not raise “serious doubt” as to his version of the incident. The acknowledged fact of his immediate verbal report of the incident to Ms. Harm-sen, the condition of the ramp and position of the wheelbarrow observed by her, and the accident description recorded in the hospital records of that date constitute sufficient corroborative circumstances entitling his testimony relating to the occurrence of the incident itself to great weight. But we also conclude that the WCJ’s error on this issue was harmless error, as explained below.

|7The trial court’s finding regarding causation is a factual finding and must be reviewed under the manifest error standard. Robling v. Allstate Insurance Company, 97-0582, p. 4 (La.App. 1st Cir.4/8/98), 711 So.2d 780, 783. The WCJ took express notice of a number of inconsistencies in Mr. Peters’s testimony and the evidence relating to his medical history, conditions and treatment. Mr. Peters testified that he last used a cane some ten years prior to the trial, a fact contradicted by the testimony of his treating physician, Dr. Casama, who testified that he was using a cane when seen on November 5, 2001, complaining of a left arm injury. Additionally, the WCJ obviously gave considerable weight to the testimony of Mr. Ray Willie, a disinterested witness who testified he saw Mr. Peters, whom he knew to be Ms. Harmsen’s employee, using crutches some time before the accident, a fact specifically denied by Mr. Peters.

Of significance to the causation issue was the fact that Dr. Casama did not first see Mr. Peters with regard to his alleged work-related injuries until January 7, 2002, or three weeks after the mugging. Dr. Casama admitted that if Mr. Peters did not complain of neck pain prior to the mugging, and complained of it soon after the mugging, the mugging was likely the cause of that complaint. He further testified that although Mr. Peters’s complaints of low back pain and radicular leg pain were consistent with trauma from the reported accident, they were also consistent with pre-existing degenerative arthritis and prior hip injuries and surgery. Mr. Peters’s treating chiropractor, Dr. Mroski, expressed the same opinion regarding the cause of the neck pain, assuming that complaint was not documented until after the mugging. Like Dr. Casama, Dr. Mroski did not have the benefit of first examining Mr. Peters for his claimed work-related injuries until weeks after |Rthe mugging, and Dr. Mroski did not review any records relating to the injuries from the mugging.

Both doctors’ opinions on the relationship of Mr. Peters’s complaints to the accident at issue were based largely on the history provided by Mr. Peters. The credibility of the plaintiff is especially significant when a physician must relate a medical condition to an accident when it is the plaintiff who provides a physician with a history of his symptoms. Mart v. Hill, 496 So.2d 1149, 1152 (La.App. 4th Cir.1986), reversed on other grounds, 505 So.2d 1120 (La.1987). Similarly, a claimant’s lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Bass v. Allstate Insurance Company, 32,652, p. 14 (La.App. 2nd Cir.1/26/00), 750 So.2d 460, 467. Thus, in many cases the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. See Cheatum v. Wackenhut Corporation, 346 So.2d 888, 890 (La.App. 4th Cir.1977). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony. Lirette v. State Farm Insurance Company, 563 So.2d 850, 853 (La.1990).

The trial evidence, taken in toto, admits of two opposing views on the issue of causation. As the WCJ’s finding on the issue of causation was based upon her determination of witness credibility, it is entitled to great deference. See Rosell, 549 So.2d at 844. Although we may have reached a different result if we were determining this issue as trier of fact, we cannot find that the WCJ’s determination regarding this issue was manifestly erroneous. See Stobart, 617 So.2d at 882.

That the WCJ may have couched the primary rationale for her judgment in terms of the absence of an accident does not taint the validity of 13her judgment. A trial court’s reasons for judgment, while defining and elucidating a case, form no part of the official judgment it signs and from which appeals are taken. Northshore Regional Medical Center v. Parish of St. Tammany, 96-0717, p. 7 (La.App. 1st Cir.12/20/96), 685 So.2d 614, 617. Regardless of the trier of fact’s reasons, if a judgment is correct, it should be affirmed. Bergeron v. Watkins, 98-0717, p. 5 (La.App. 1st Cir.3/2/99), 731 So.2d 399, 402. The WCJ’s judgment is based upon the stated factual finding that Mr. Peters failed to prove “an accident and injury within the course and scope of his employment.” (Our emphasis.) We accordingly affirm the WCJ’s judgment.

DECREE

The judgment of the Office of Workers’ Compensation Administration, District 6, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Donald Peters.

AFFIRMED.

      . The identity of Mr. Peters’s actual employer is somewhat clouded. He evidently believed he was actually employed by Jake Morreale, for whom Ms. Harmsen worked. His claim for workers' compensation originally named Mr. Morreale as employer. Nevertheless, it appears that Mr. Peters was employed by Ms. Harmsen, who in turn was a contractor engaged by Mr. Morreale, as principal and primary contractor. It is undisputed that LWCC provided workers' compensation coverage to Ms. Harmsen as employer at the time of the reported accident.


author: LGUIDRY, J.

text:
    Dianna JAMES v. AUTOZONE, INC., and Liberty Mutual Insurance Company.
    No. 2003 CA 1255.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Joseph F. Durio, E. Eric Guirard, Baton Rouge, Counsel for Plaintiff/Appellant Dianna James.
    David R. Rabalais, Lafayette, Counsel for Defendants/Appellees AutoZone, Inc. and Liberty Mutual Insurance Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   LGUIDRY, J.

In this action arising from a slip in an AutoZone store, plaintiff, Dianna James, appeals the trial court’s judgment in favor of the defendants, AutoZone, Inc. and Liberty Mutual Insurance Company (collectively “AutoZone”), dismissing her claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 15, 2000, Ms. James and her daughter went to an AutoZone store in Franklin, Louisiana, to purchase antifreeze. In making her way to the section of the store where the antifreeze was located, Ms. James slipped in brake fluid, which had been spilled on the floor shortly before Ms. James’ arrival. However, Ms. James did not actually fall, as she was able to catch herself with her daughter’s assistance. Ms. James then continued shopping for the antifreeze and proceeded to the check-out area, where she purchased the antifreeze and reported her slip to AutoZone employees. At that time, however, Ms. James did not indicate that she was hurt as a result of the slip.

Thereafter, Ms. James filed a petition for damages against AutoZone, claiming that she suffered injuries as a result of slipping in its Franklin store. A jury trial was held; at the close of trial, the jury rendered a verdict in favor of AutoZone, and the trial court signed a judgment pursuant to that verdict, dismissing Ms. James’ claims. Ms. James now appeals from that judgment, asserting that the trial court erred in finding that AutoZone exercised reasonable care and in failing to award her any damages.

DISCUSSION

Standard of Review

The determination of whether AutoZone exercised reasonable care is a factual determination, which is subject to the manifest error standard of appellate review. As such, a court of appeal may not set aside a trial court’s or jury’s finding | sunless it is clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). When there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844.

Ms. James, however, argues that our review should be de novo, because the jury verdict was erroneous, inconsistent, and confusing. In particular, Ms. James contends that the jury was confused by the jury verdict form and that this confusion, which she alleges is evidenced by the notes sent to the court during deliberations and a final note sent with the final jury verdict, resulted in an erroneous jury verdict. It is well settled that misleading or confusing interrogatories may constitute reversible error. However, the manifest error standard of appellate review may not be ignored unless the proposed jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1153 (La.App. 3rd Cir.1991).

In the instant case, prior to submission to the jury, it was discovered that question number two on the jury verdict form and the instructions that followed did not make sense as written. The question and instructions read:

Did AutoZone exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition after learning of the unreasonable risk presented by the oil spill?
|4(If your answer to Question 2 is ‘Yes,” go to Question 3. If your answer to Question 2 is “No,” stop here, do not answer any other questions, sign this form and return to the courtroom.)

Therefore, in order to have the form make sense, the court, with approval of the parties, inserted by hand the words “fail to” into question number two.

Once the case was submitted to the jury, there were several exchanges between the jury and the court regarding the case. At one point, the jury sent a note to the court asking why the words “fail to” had been written on the form. The court responded to the jury’s question by sending a note back indicating that the words were inserted to correct a typographical error in the form and also indicated it was sending in a corrected verdict form. The corrected form merely retyped question number two so that the words “fail to” . actually appeared in the question. A short time following this exchange, the jury returned the verdict, finding that AutoZone did not fail to exercise reasonable care.

From our reading of the record, any confusion presented by the yerdict form was dispelled by the subsequent exchanges between the court and the jury. As indicated above, the court clearly explained the reason for the changes to the verdict form and even sent in a corrected verdict form for the jury to review. Further, the record shows that the jury answered question number two on both the original verdict form with the handwritten notation and the corrected verdict form in the negative.

However, Ms. James argues that despite these efforts, the jury was still confused, as evidenced by a note that was sent to the court along with the final jury verdict. In this note, the jury stated:

We do not feel legally AutoZone is responsible for the cause of her condition, but we do feel more could have been done in a more timely manner by Auto-Zone and that Ms. James should be awarded the $19,367.00 suggested by the defense.

Is We find, however, that this note does not form part of the jury verdict itself, but rather is surplus language. The verdict form as marked responded to the issues presented before the jury. The extraneous remarks contained in the note were not essential to ■ a determination of the issues presented, because once a finding was made on reasonable care, it was not necessary for the jury to come to a conclusion on causation or damages. See O’Quinn v. Kansas City Southern Railroad, 442 So.2d 1317, 1319 (La.App. 3rd Cir.1983). Therefore, from our review of the record, we do not find confusion of the jury or any inadequacy of the jury interrogatory that would warrant ignoring the manifest error standard of review.

La. R.S. 9:2800.6

The law governing negligence claims brought against merchants, which results from accidents caused by a condition existing on or in the merchant’s premises, is La. R.S. 9:2800.6, which provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on the merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1)The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or 1 fiverbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

On appeal, Ms. James contends that the jury erred in determining that AutoZone exercised reasonable care. Merchants are required to exercise reasonable care to protect those who enter the establishment, to keep the premises safe from unreasonable risk of harm, and to warn persons of known dangers. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Harrison v. Horseshoe Entertainment, 36,294 (La.App. 2nd Cir.8/14/02), 823 So.2d 1124, 1128.

In the instant case, the jury was presented with the testimony of two AutoZone employees, as well as the testimony of Ms. James. The store employees testified that a group of teenagers caused a display of brake fluid to fall just prior to Ms. James entering the store. The employees also testified that prior to Ms. James’ arrival, they had started to pick up the bottles from the floor, discovered some liquid on the floor, marked off the general area with two or three warning cones, and wiped the wet area with paper towels. The employees explained that at the time Ms. James entered the store, most of the bottles had been scooped up into a pile to enable them to rebuild the display, and store employees were in the area finishing their efforts to pick up and clean the spill. Additionally, while Ms. James was in the store, a store employee was retrieving a mop and bucket, so as to thoroughly clean the area of the spill.

Ms. James, however, testified that when she entered the store, she did not see any warning cones or a mop. However, Ms. James testified that she was in a hurry and walking quickly through the store. Ms. James stated that she did not even know her daughter was behind her until she slipped and reached out, looking for something to grab.

|7Based on our review of the record and the conflicting versions as to what Auto-Zone had done or was doing to clean up and warn customers of the spill, we are unable to say that the jury was manifestly erroneous in determining that AutoZone did not fail to exercise reasonable care in its efforts. Because we find no error in the jury’s finding regarding reasonable care, we pretermit Ms. James’ assignment of error regarding the trial court’s failure to award damages.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed, and all costs of this appeal are to be borne by the appellant, Dianna James.

AFFIRMED.

      . In the instant case, Ms. James did not actually fall; she slipped and caught herself. This court, however, has applied La. R.S. 9:2800.6 to actions where the claimant never actually falls, but merely slips. See Tantillo v. Wal-Mart Stores, Inc., 96-0401 (La.App. 1st Cir.6/25/99), 739 So.2d 304.


author: JjFOIL, J.

text:
    OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER, et al. v. E. R., Individually and on Behalf of R. B.
    No. 2008 CA 1185.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.

      Douglas K. Williams, Baton Rouge, for Appellee Plaintiff Our Lady of the Lake Hospital, Inc. d/b/a Our Lady of the Lake Regional Medical Center.
    Robert B. Evans, New Orleans, for Appellants Defendants E.R. and R. B.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   JjFOIL, J.

This appeal challenges the action of a trial judge in granting injunctive relief to a health care provider to prohibit a mother from publicly discussing alleged mistreatment her minor daughter received in a substance abuse program. We reverse.

BACKGROUND

On February 7, 2003, E.R., through her attorney, sent a letter to the Tau Center, where her minor daughter received treatment for substance abuse, outlining instances of alleged negligence and misconduct on the part of the Tau Center and its employee regarding her daughter’s treatment. The letter threatened that a lawsuit would be filed in the event a settlement could not be reached, and informed the Tau Center that a copy of the lawsuit would be provided to the press. On April 3, 2003, Our Lady of the Lake Hospital (OLOL), which operates the Tau Center, filed this petition seeking to restrain E.R. from making any disclosures of information related to her minor daughter’s treatment at the Tau Center. In the petition, OLOL sought a temporary restraining order (TRO) and injunctive relief, insisting that disclosure to the news media or other individual entity by E.R. of any information related to her daughter’s treatment, including the identification of her daughter as a former patient of the Tau Center, would violate state and federal confidentiality laws.

The trial judge issued a temporary TRO prohibiting E.R. and her daughter, or agent, from making any disclosures to the media or any other person of information related to R.B.’s treatment at the Tau Center, except as expressly provided by state and federal law. E.R., individually and on behalf of her minor daughter, filed a motion to dissolve the temporary restraining order and sought an award of costs associated with the wrongful issuance of the TRO.

One hearing was held on both the request for injunctive relief and the claim that the TRO was wrongfully issued. .At the hearing, the parties 13stipulated that the Tau Center and OLOL received federal funding through programs such as Medicaid, Medicare and CHAMPUS. ; They further stipulated that R.B. participated in an outpatient program through the Tau Center for substance abuse, specifically, drug and alcohol treatment, and that her mother, to some extent, was involved in and did participate in the program. The parties also revealed that a petition had been filed by E.R. with the Patient’s Compensation Fund, and OLOL alternatively sought a gag order and a sealing of the record relating to that action.

After hearing arguments advanced by counsel, the trial court agreed with OLOL’s argument that R.B. was entitled to be treated under the law as an adult patient with the right to consent to the disclosure of her medical records. The judge found that the TRO had been properly issued because there w;as no evidence of any written consent to the disclosure. He went on to state, however, that even if there was consent to the disclosure, federal law protected not only the patient but also the treatment facility, and thus authorized a court to define the types of disclosures allowed and to fashion appropriate relief to allow disclosure under certain circumstances.

Thereafter, the trial court granted the preliminary injunction prohibiting E.R., her daughter or their agent from making any disclosures to any media or other person of any information related to R.B.’s treatment at the Tau Center, including her identification as a former patient there. The judgment further enjoined any party or person from publishing, distributing, discussing any facts of the case, documents or pleadings, or making any reference to the complaint filed with the PCF except as expressly allowed under federal law. E.R., her daughter and their agent were ordered to assert any claims they may have against the Tau Center and OLOL under seal. The order allowed discovery only under seal and only under the circumstances set forth in the order.

This appeal, taken by E.R., followed.

| DISCUSSION

In this appeal, appellant assigns seven errors. In these assignments, she claims that the trial court erred in (1) treating R.B. as an adult; (2) finding the Tau Center is a federally assisted program to which the Federal Patient Confidentiality law applies; (3) improperly interpreting federal law tó find that a health care provider may restrict a patient from disclosing information regarding treatment or mistreatment she may have received; (4) fashioning overly broad injunctive relief that fails to consider the patient’s constitutional right to free speech; and (5) failing to consider the public interest, which mandates that appellant and her daughter be allowed to discuss mistreatment at the Tau Center. She further asserts in assignments of error numbers 6 and 7 that OLOL and Tau Center have no right of action to obtain a TRO or preliminary injunction, and urges that the trial court improperly denied the motion to dissolve the TRO and award costs and attorney fees. Because we agree with the arguments advanced by appellant in assignments of error numbers 3, 6 and 7, we pretermit discussion of all other issues raised in this appeal.

In granting the injunction, the trial court found'that federal law authorized a treatment facility to obtain injunctive relief to prohibit a mother from publicly disclosing information regarding the treatment her minor daughter received at the facility without the written consent of her daughter and a court order limiting the disclosure. In so doing, the trial court relied on the federal Patient Confidentiality Law, 42 U.S.C.A. § 290dd-2(a), which provides as follows:

Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection(e) of this section, be confidential and be disclosed only for the purposes and under the | ¡¡circumstances expressly authorized under subsection (b) of this section.

The federal law provides four ways confidential patient information may be disclosed: (1) medical emergencies; (2) research; (3) pursuant to a court order authorized after a showing of good cause therefore; and (4) written consent. It also provides that any person who violates any provision of the law or any regulation issued pursuant to the law shall be fined in accordance with Title 18. 42 U.S.C.A. § 290dd-2(f).

The trial court found that the federal limitation on disclosing information gave a health care provider a cause of action to restrain a mother of a patient and the patient herself from speaking publicly regarding the treatment the patient received while she was a minor at the facility, even if both the mother and daughter consented to the release of the medical records. We find this to be an erroneous interpretation of the Patient Confidentiality Law.

The purpose of 42 U.S.C.A. § 290dd-2 is to encourage patients to seek treatment for substance abuse without fear that by so doing, their privacy will be compromised. Ellison v. Cocke County, Tennessee, 63 F.3d 467, 470-471 (6th Cir.1995). In Ellison, the federal court stressed however, there is no indication that the confidentiality provision was intended to be enforced by aggrieved private parties; the purpose of the provision was not to create private rights as much as it was to create public penalties in order to deter disclosure. Thus, federal courts have refused to find a federal private right of action for a violation of Section 290dd-2’s confidentiality provisions, finding that Congress intended that the statute be enforced through the imposition of criminal penalties. Id.

The Patient Confidentiality Law clearly provides a health care provider with a defense to public disclosure of confidential patient information, and makes it a crime for the program to disseminate confidential patient information in violation of its provisions and regulations. However, in this Incase, we are asked to construe the law to grant the health care provider a private cause of action to restrain a mother from making public statements regarding alleged mistreatment her daughter received at the facility. We see nothing in the federal law that would authorize a substance abuse treatment facility to effectuate a prior restraint on speech by a person aggrieved by the treatment rendered by the facility. Any violation of the federal law would be subject to a fine, not a prior restraint injunction.

Accordingly, we find that the trial court lacked authority to issue the preliminary injunction. Under La. Code Civ. P. art. 3608, appellant is entitled to seek an award for damages and attorney fees incurred to defend against the issuance of the injunction. We remand to the trial court to determine whether damages and attorney fees are to be awarded, and if so, for the determination of the proper amount. See Denta-Max v. Maxicare Louisiana, Inc., 952-2128, p. 6 (La.App. 4 Cir. 3/14/96), 671 So.2d 995, 998.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed in its entirety. The matter is remanded to the trial court to conduct further proceedings consistent with this opinion. All costs of this appeal are assessed to appellee.

REVERSED AND REMANDED WITH ORDER.

GAIDRY, J., concurs.


author: i ¡McDonald, j.

text:
    Pam Rabalais GORDON v. ST. TAMMANY PARISH SCHOOL BOARD.
    No. 2003 CA 1035.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Tammy Nick, Tom W. Thornhill, Slidell, Counsel for Plamtiff/Appellant Pam Raba-lais Gordon.
    Harry Pastuszek, Jr., Mandeville, Counsel for Defendant/ Appellee St. Tammany Parish School Board.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   i ¡McDonald, j.

Pam Rabalais, the plaintiff, was working as a volunteer with the Whispering Forest Elementary School Parent Teacher Association (PTA) on the morning of February 27, 1997. While working in the rain to unload prizes for the school Fun Fest from her husband’s truck, she slipped and hit her head on the curb. Rabalais had worked as a substitute teacher for the St. Tammany Parish School Board prior to her accident. Rabalais filed a disputed claim for compensation with the Office of Workers’ Compensation, asserting that she was an employee of the St. Tammany Parish School Board (School Board). The School Board answered the claim, asserting that Rabalais was not an employee of the School Board at the time of her accident and denying that her injury occurred in the course and scope of any employment with the School Board. Thereafter, the School Board filed a motion for judgment on the pleadings, an exception of no cause of action, and a motion for sanctions, which were all denied by the workers’ compensation judge.

The parties made the following stipulations: 1) that in February, 1997, Rabalais had substituted for the School Board, but she was not acting as a substitute teacher on February 27, 1997; 2) Rabalais was vice-president of the Whispering Forest Elementary School PTA on February 27, 1997; 3) Rabalais had worked as a substitute at Whispering Forest Elementary School on the day before the alleged incident; and 4) Rabalais arrived at the school in her husband’s truck, which contained prizes for the school Fun Fest.

IsThe parties went to trial solely on the issue of whether the alleged incident of February 27, 1997 arose out of and in the course of some type of employment with the School Board.

After trial, the workers’ compensation judge took the matter under advisement. Thereafter, the workers’ compensation judge ruled in favor of the School Board, dismissing Rabalais’ workers’ compensation claim with prejudice. The workers’ compensation judge found that Rabalais was acting in her capacity as a PTA volunteer on February 27, 1997, and not as an employee of the School Board. She is appealing that decision.

The sole issue for review is whether the incident of February 27, 1997 arose out of and in the course of some type of employment with the School Board. After a thorough review of the record and relevant jurisprudence, we find that the workers’ compensation judge’s decision was correct, and we affirm the decision at the appellant’s costs. This opinion is rendered in compliance with the Uniform Rules— Courts of Appeal, Rule 2-16.1.B. Costs are assessed against Rabalais.

AFFIRMED.

      . Rabalais also filed a tort suit against the School Board. However, any alleged tort claim Rabalais may have against the school board is not before us in these proceedings.


author: DOWNING, J.

text:
    INDUSTRIAL BABBITT BEARINGS and Bridgefield Casualty Insurance Company v. Gary P. LESSARD.
    No. 2003 CA 0904.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Matthew W. Tierney, Baton Rouge, Counsel for Plaintiffs/Appellants Industrial Babbitt Bearings & Bridgefield Casualty Ins. Co.

      Denise A. Vinet, Baton Rouge, Counsel for Defendant/Appellee, Gary P. Lessard.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   DOWNING, J.

In this workers’ compensation dispute, the claimant, Gary P. Lessard, alleged that he injured his lower back while in the scope of his employment as a welder for the Industrial Babbitt Bearings Company. The employer filed a disputed claim form, alleging Lessard was in violation of La. R.S. 23:1208 by willfully making false statements in order to obtain benefits. The workers’ compensation judge (WCJ) rendered judgment in favor of Lessard and the employer appealed. The only issue on appeal is whether the WCJ erred in finding that Lessard did not violate La. R.S. 23:1208. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous. Stobart v. State, Through Dept. of Transp. And Dev., 617 So.2d 880, 882 (La.1993). After a thorough review of the record and exhibits, we conclude that the record does not demonstrate that the fact finder’s decision was manifestly erroneous. Thus, in accordance with Uniform Court of Appeal Rules 2-16.2A(8), the decision of the WCJ is affirmed at the employer/appellant’s costs.

AFFIRMED.


author: 1,PER CURIAM.

text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004 KW 0129.
    Court of Appeal of Louisiana, First Circuit.
    April 6, 2004.

      Clive A. Stafford Smith, Attorney at Law, Counsel for Relator, ■ Derrick Todd Lee.
    Doug Moreau, District Attorney, John W. Sinquefield & Dana J. Cummings, Assistant District Attorneys, Counsel for Respondent, State of Louisiana.
    Before: WHIPPLE, KUHN and McDonald, jj.
   1,PER CURIAM.

Defendant, Derrick Todd Lee, seeks review of the trial court’s refusal to issue a ruling on his motion requesting funding for expert expenses. For the following reasons, we grant the writ and remand to the trial court for reconsideration.

The state has indicted defendant with first degree murder and is seeking the death penalty. The court appointed the Office of the Public Defender to represent defendant. Defendant filed a “Touchet motion to proceed in camera and ex parte on privileged matters.” In State v. Touchet, 1993-2839 (La.9/6/94), 642 So.2d 1213, the Louisiana Supreme Court established a procedure for trial courts to follow when faced with requests by indigent defendants for funds to pay experts. Defendant alleged in the- motion that he needed the services of various experts, laboratories and investigators beyond those on staff with the 19th Judicial District Court Indigent Defender Board, and that the Indigent Defender Board did not have sufficient money to fund the needs of this case. The motion indicated that, if the trial court approved the expenditure of certain funds, defendant would reapply to the Louisiana Indigent Defense Assistance Board (LI-DAB) for additional funds. The motion also said defendant was entitled to make his showing in an ex parte and in camera manner because the issues “may involve privileged matters.”

When the trial court considered the motion, it held a portion of the hearing ex parte. Although the court initially said it would consider the defendant’s motion during the ex parte hearing, the court actually made no determination under Touchet regarding defendant’s request for funding for experts. The court also said | ¡¡it was not going to issue an order instructing defendant to present a request for funding to LIDAB.

Part of the state’s obligation in providing effective assistance of counsel to an indigent defendant is to provide the indigent defendant’s attorney with the “basic tools of an adequate defense,” at no cost to the indigent defendant. State v. Jones, 1997-2593 (La.3/4/98), 707 So.2d 975, 977; Touchet, 642 So.2d at 1215; State v. Jeff, 1999-1876 (La.App. 1st Cir.12/28/99), 761 So.2d 574, 577 (per curiam). See also Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The Louisiana legislature is constitutionally . obligated to “provide for a uniform system for securing and compensating qualified counsel for indigents.” La. Const, art. I, § 13. Even if the legislature fails to comply with this constitutional command, an individual defendant cannot force legislative action. State v. Peart, 621 So.2d 780, 786 (La.1993).

In response to this constitutional mandate, the legislature established Louisiana’s indigent defender system. Indigent Defender Boards oversee indigent defense operations in each judicial district, and each board is funded locally. La. R.S. 15:144 & 15:146; Peart, 621 So.2d at 783. See also La. R.S. 15:147(A)(1)(d), 15:148 & 15:571.11(L).

Pursuant to an emergency interim rule in 1994 (Rule 31), the Supreme Court formed the Louisiana Indigent Defender Board (LIDB). More recently, as a successor to LIDB, the legislature established the Louisiana Indigent Defense Assistance Board (LIDAB) in the office of the governor. La. R.S. 15:151 (added |4in 1997). See. 1997 La. Acts No. 1361, § 3. LIDAB is authorized to provide supplemental funds, when appropriated by the legislature, to judicial district indigent defender boards for the purpose of complying with the requirements of the Louisiana and U.S. Constitutions regarding the right to counsel for indigent defendants in criminal cases. La. R.S. 15:151.2(A).

Under the standards set out by the Louisiana Supreme Court in Touchet, for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution’s case or to support a critical element of the defense. If the trial court finds the indigent defendant is able to meet this. standard, it is to authorize the hiring of the expert at the expense of the state. 642 So.2d at 1216.

The Supreme Court has adopted procedures governing requests by indigent defendants for funds to pay experts:

To recapitulate our holding in this case, an indigent defendant may file a motion for expert funding ex parte. Notice of the filing of the motion should be given to the state, which may file an opposition to the hearing being held ex parte and/or to the request for funding. The trial court should first determine, in camera, either on the face of the allegations of the motion or upon taking evidence at an ex parte hearing, whether the defendant would be prejudiced by a disclosure of his defense at a contradictory hearing. If so, then the hearing on expert funding should continue ex parte. If not, then the hearing should be held contradictorily with the District Attorney. If either side seeks appellate review of a ruling as to the ex parte nature of the hearing, the motion and other proceedings to this point should remain under seal until the appellate review is completed, and thereafter if the ruling is in favor of an ex parte hearing.
At the hearing on expert funding, whether ex parte or contradictory, the defendant must first show a need for the funding. The defendant must show with a reasonable degree of specificity what type of expert is needed and for what purpose. In other words, the | ¡^indigent defendant requesting governmental funding for the securing of expert assistance must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution’s or defense’s theory of the case. If the defendant meets this burden, then the court is to order that the funds be provided by the state. If the defendant fails to meet this burden, and the proceedings were held ex parte, both the written reasons for denial and the record of the proceedings are to remain under seal during the pendency of the defendant’s prosecution, including appellate review.

Touchet, 642 So.2d at 1221-22 (footnote omitted).

The state argues that the ex parte hearing required by Touchet is no longer required because the establishment of LI-DAB legislatively repealed Touchet. According to the state, Touchet would apply only if the trial court had a source of funds in the judicial branch for funding the experts. Because that source of funds is now in the executive branch (with LI-DAB), the state believes Touchet is no longer relevant and the trial court (as part of the judicial branch) has no authority to order LIDAB (as part of the executive branch) to provide funding for experts. Because the trial court has no authority to order LIDAB to provide any funds, the state believes “nothing can come of [an ex parte hearing]” in the trial court, so one should not be held.

We have found no authority to support the state’s argument that Touchet does not apply. Well after the establishment of LIDAB, the Supreme Court has continued to follow the procedures of Touchet.

In State v. Frank, 1999-0553 (La.1/17/01), 803 So.2d 1, 9, the Supreme Court noted that the specific issue of what showing an indigent needs to make in order to obtain state-funded expert assistance was addressed in detail in Touchet. The court also said: “The court has made clear that an indigent defendant is entitled to present a trial court with evidence of his or her need for state-funded expert assistance at a hearing on the matter.” Frank, 803 So.2d at 10 (citing Touchet, 642 So.2d at 1221). After finding error in the trial court’s determination | fithat the defendant was not indigent, the Supreme Court further determined that, “because both this court and the [U.S.] Supreme Court have repeatedly stressed that a capital defendant has the right to introduce virtually any evidence in mitigation during the penalty phase of a capital trial, we find the trial court committed error in not allowing the indigent defendant the opportunity to make a showing under Touchet as to her need for state-funded assistance for the purpose of presenting any such mitigating evidence.” Frank, 803 So.2d at 11. The courts of appeal also have continued to follow the procedures set out in Touchet. See State v. Williamson, 35,122 (La.App.2d Cir.1/23/02), 805 So.2d 1235, 1241-42, writ denied, 2002-0707 (La.2/7/03), 836 So.2d 94; Jeff, 761 So.2d at 577-78.

Before the trial court, the state argued that defendant’s remedy is to file an administrative claim against LIDAB. However, the statutory provisions applicable to LIDAB (La. R.S. 15:151 — 15:151.3) have limited effect and are intended to facilitate the providing of legal services and related expenses only to the extent required by the state and federal constitutions and specific statutory provisions affording the right to counsel. “No provision of R.S. 15:151 through 151.3 or rule adopted pursuant thereto creates or shall be construed to confer substantive or procedural rights in favor of any person accused of any offense.” La. R.S. 15:151.4.

Accordingly, this matter is remanded for the trial court to comply with the requirements of Touchet and to determine, in camera, either on the face of the allegations of defendant’s motion or upon taking evidence at an ex parte hearing, whether defendant would be prejudiced by a disclosure of his defense at a contradictory hearing. If so, then the hearing on defendant’s request for expert funding should continue ex parte. If not, then the hearing should be held contradictorily with the District Attorney. We note that defendant’s motion was not filed ex parte, and it currently contains no allegations that would justify the 17holding of an ex parte hearing. Before any portion of the hearing held on defendant’s request for funds is held ex parte, defendant must first show, either by supplementing the allegations of his motion or by presenting evidence at an ex parte hearing, that he would be prejudiced by a disclosure of his defense. Prejudice is not presumed, and ex parte treatment is the exception, not the rule. In order to deviate from the general rule of open and contradictory hearings, there must be a showing of good cause. Touchet, 642 So.2d at 1220.

At the hearing on expert funding, whether ex parte or contradictory, defendant must show a need for the funding by establishing with a reasonable degree of specificity what type of expert is needed and for what purpose. He must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution’s or defense’s theory of the case. Touchet, 642 So.2d at 1221. If defendant meets this burden, then the trial court should set an amount. We note that defendant does not have a constitutional right to the “unrestricted exercise of all the measures money can buy in defense of the charges against him.” See State v. Phillips, 343 So.2d 1047, 1054 (La.1977). Just as an indigent defendant is not entitled to the appointment of a particular attorney, see State v. Wille, 595 So.2d 1149, 1154 (La.1992), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992), even if defendant establishes a need for the assistance of state-funded experts he is not entitled to the experts of his choice. See Ake v. Oklahoma, 470 U.S. at 83, 105 S.Ct. at 1096 (“This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.”).

Whether or not defendant is entitled to state-funded experts (because the assistance is required to answer a serious issue or question raised by the prosecution’s or defense’s theory of the case) is separate from the issue of the source of those funds. Only after defendant has established his need for assistance |Rby a particular type of expert and the trial court has determined the amount of funding required is it necessary for the trial court to resolve any issues that might arise regarding the source of the funds. The Court in Frank did not address the source of funds other than to state that, if the trial court on remand determined the defendant met the standards provided in Touchet, it should “order that state funds be procured so that the defendant may hire the requested expert to assist her defense at the sentencing hearing.” 803 So.2d at 11. The Supreme Court gave no indication from where those funds should be “procured” or what the remedy would be if the trial court could not procure the necessary funds. Although trial courts at one time had the authority to order the local government to defray necessary expenses surrounding indigent defense, amendments to La. R.S. 15:304 and 15:571.11 relieve parish governments and the criminal court funds of responsibility for the payment of certain indigent defense costs. See Touchet, 642 So.2d at 1221 n. 4. See also State v. Craig, 1993-2515 (La.5/23/94), 637 So.2d 437. Since those amendments, the Supreme Court has not addressed the precise source of funds or governmental entities responsible when the state has an obligation to furnish funds for indigent defense. In Touchet, the Supreme Court noted the legislature’s funding for LIDB (the predecessor to LI-DAB) and said “it remains to be seen” if the funds provided to LIDB would be adequate to provide for indigent defense. Touchet, 642 So.2d at 1222 n. 4.

If the trial court determines defendant is entitled to funds for expert expenses, payment of those expenses should first come from the public defender’s office, either from its existing budget or from any additional funding provided by LIDAB. See Craig, 637 So.2d at 448. If defendant proves the services and funds of the public defender’s office are insufficient to cover the expenses, the trial court will then need to determine if funds are available from any other sources. See State v. Wigley, 624 So.2d 425, 429 (La.1993). The trial court no longer has ^statutory authority to require the local government to fund the defense, and the trial court has no statutory authority to order LIDAB to change the way it allots funds to the various indigent defense systems or to order LIDAB to spend funds on this particular case.

Accordingly, this writ application is GRANTED and the matter is remanded for further proceedings as expressed herein.

      . We find no merit in the state’s argument that the instant writ application is moot because of a supplement defendant filed in a writ application with the Supreme Court. State v. Lee, 2003-3064 (La.2/6/04), 865 So.2d 743. Defendant noted in the supplement that this court had not issued a ruling in the .instant writ application, and he made it clear he was providing the supplement in an effort to update the Supreme Court on the current status of the funding requests, not. in any effort to by-pass review by this court.

      . Senate Resolution No. 112 and House Resolution" No. 151 of the 2003 regular legislative session recognized the 40th anniversary of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and rededicated the state to the promise of equal justice for all, regardless of income, in accordance with the American Bar Association's "Ten Principles of a Public Defense Delivery System,” by creating the Louisiana Task Force on Indigent Defense Services. The resolutions provide that the task force should study the system in Louisiana of providing legal representation to indigent persons who are charged with violations of criminal laws and make an initial report of its findings and recommendations for change in legislation to the legislature no later than March 1, 2004.


author: J^MCCLENDON, J. L CARTER, C.J., | FITZSIMMONS, Judge,

text:
    STATE of Louisiana v. Darrell R. SMITH, Jr.
    No. 2003 KA 1153.
    Court of Appeal of Louisiana, First Circuit.
    April 7, 2004.

      Charles Grey, Creighton B. Abadie, Assistant District Attorneys, Baton Rouge, Counsel for Plaintiff/Appellee State of Louisiana.
    James E. Boren, Baton Rouge, Counsel for Defendant/Appellant Darrell R. Smith, Jr.
    Before: CARTER, FOIL, WHIPPLE, PARRO, FITZSIMMONS, KUHN, GUIDRY, PETTIGREW, GAIDRY, MCDONALD, and McCLENDON, JJ.

      . The Hon. Robert D. Downing, J., recused.

   J^MCCLENDON, J.

We consider this matter en banc to determine whether a motion for reconsideration of an initial sentence preserves appellate review of a new sentence when the initial sentence is modified or vacated and a new sentence imposed.

The defendant, Darrell R. Smith, Jr., was charged by bill of information with possession with intent to distribute diazep-am, in violation of LSA-R.S. 40:969 A(l). Defendant initially pled not guilty, but was later allowed to withdraw his plea and enter a plea of guilty. After defendant’s plea was accepted, he was convicted and sentenced to ten years imprisonment at hard labor. Thereafter, on September 4, 2002, defendant filed a timely motion to reconsider his sentence on the ground that it was excessive insofar as he was not given credit for time spent in a drug rehabilitation program pending trial. An amended motion to reconsider sentence was filed on January 16, 2003, alleging that the sentence imposed was unconstitutionally excessive. Therein, defendant suggested that his sentence be reduced to five years at hard labor with credit for time spent in a drug rehabilitation program. Following an evidentiary hearing, a new trial judge assigned to the case granted the motion in part on February 14, 2003, and resentenced defendant to serve seven years imprisonment at hard labor |swith credit for time served, and to pay a fine of $5,000.00.

On appeal, defendant relies on a single assignment of error, arguing that his new sentence is excessive. For the following reasons, we affirm his conviction and sentence.

FACTS

Because defendant pled guilty to possession with intent to distribute diazepam, the facts of the offense were not fully developed at a trial on the merits. However, at defendant’s Boykin hearing, defendant stipulated that he was guilty of possession with intent to distribute diazepam and that, if the State went to trial, the State would be prepared to prove the facts contained in the police report, the allegations reflected in statements of co-defendants, and the results of a laboratory report provided to defense counsel. Those materials indicated that on May 8, 2000, officers acting on information provided by a confidential informant stopped Trenton Kidder and found narcotics in his vehicle. Kidder informed them that he had obtained the drugs from Shannon Truitt, who told him that she, in turn, obtained them through defendant. Defendant had been arrested in Texas in April 2000 for bringing drugs into the country from Mexico. He was in a drug-rehabilitation facility in Houston, Texas. While in Texas, defendant had drugs stored with his mother, who was allegedly distributing them for defendant. Truitt told Kidder that defendant’s mother was the immediate source of the drugs she was providing to him. Truitt was located, questioned, and found in possession of a large quantity of drugs. Truitt advised officers that she had been in telephone contact with defendant and had been contacted by defendant’s mother who asked Truitt to come to her |4place of employment to get drugs to sell for defendant. From defendant’s mother, she obtained hundreds of doses of diazepam and other illegal drugs. Truitt also told officers that defendant had been a manufacturer of GHB and that she believed more illegal drugs were at his mother’s residence.

Armed with this information, officers obtained a warrant to search the residence and place of employment of defendant’s mother. In a black bag that defendant’s mother admitted was hers, police found hundreds of doses of illegal drugs. At the residence, police found two jugs of GHB, twenty-two vials of nubain, twenty-one vials of liquid steroids, syringes, and a safe containing records of drug activities. Defendant’s mother advised the police that her son trafficked in drugs and that the drugs at the residence and her place of business belonged to him. Defendant was finally arrested in June 2000 for the instant offense. It appears that while he was in a drug rehabilitation treatment program in Texas, he arranged for his mother to give drugs that he had stored at his home in Louisiana to his girlfriend.

At his sentencing hearings, defendant admitted that he used drugs and sold drugs to support his addiction to nubain. He also admitted making trips to Mexico at least four or five times to obtain drugs for himself and others. At the time of his resentencing in February 2003, he was twenty-three years old. Defendant admitted that he had hundreds of dosages of drugs stored at his home. He testified that he started using drugs at age fifteen and dealt drugs for a nine-month period from 1999 through May 2000. According to the trial judge, the records in other proceedings against defendant, as well as the information contained in the pre-sen-tence investigation report, demonstrated that defendant was a “major player,” a manufacturer, and a distributor of drugs for profit. He was not a street-level addict selling to support his own habit. At the time of initial sentencing, the trial judge | ^further indicated that defendant had gotten a very favorable plea agreement, in that the district attorney had agreed to dismiss other counts for possession with intent to distribute nubain and testosterone, for which defendant could have received substantial additional prison terms. The court reviewed the considerations set forth in LSA-C.Cr.P. art. 894.1 and found that defendant was in need of correctional treatment in a custodial environment, that there was a danger that he would commit additional crimes if not incarcerated, and that his actions had negatively affected others in the community. After taking defendant’s prior offenses and the pre-sentence investigation report into consideration, the trial judge sentenced defendant to ten years imprisonment at hard labor.

Defendant timely requested reconsideration of his sentence and subsequently amended his motion for reconsideration. After reviewing the record and taking additional testimony into consideration, the new trial judge to which this case had been assigned resentenced defendant to seven years imprisonment at hard labor and imposed a fine of $5,000.00. Defendant now appeals to this court, seeking a second downward revision of the sentence imposed on him.

ANALYSIS

Defendant argues on appeal that his new sentence is unconstitutionally excessive. We note that defendant filed a timely motion to reconsider his initial sentence. That motion was limited to an argument that defendant should receive credit for twenty-six months spent in a rehabilitation program. After the expiration of the thirty-day period for filing a motion to reconsider sentence established in LSA-C.Cr.P. art. 881.1 A(l), defendant filed an amended motion to reconsider his sentence, arguing for the first time that the sentence was unconstitutionally excessive. | fiFollowing an evidentiary hearing, the trial judge reduced defendant’s term of incarceration from ten years to seven years imprisonment at hard labor and added a fine of $5,000.00, whereas no fine had previously been imposed. The record does not re-fleet either an oral or written motion to reconsider the new sentence imposed on February 14, 2003. Defendant made no comment when his new sentence was imposed that could be interpreted as an objection to the new sentence.

One purpose of the motion to reconsider is to allow the defendant to raise any errors that may have occurred in sentencing while the trial judge still has the jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059, 1059-60 (La.1993) (per curiam). Louisiana Code of Criminal Procedure article 881.1 uses the term “re-sentence” making it clear that when relief is granted, the result is imposition of a new sentence. Since a new sentence is imposed when relief is granted, the language of Article 881.1 requires that a 17renewed motion for reconsideration be filed, specifying the grounds for objection to the new sentence. See LSA-C.Cr.P. art. 881.2(A)(1).

The trial judge in this case indicated that he was resentencing defendant. He advised defendant that he had thirty days to file a motion for reconsideration of the new sentence. No such action was taken. Under the clear language of LSA-C.Cr.P. art. 881.1, failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. We cannot assume that defendant’s objections to the initial sentence are equally applicable to the sentence imposed on February 14, 2003. The considerations that require giving the trial judge an opportunity to reconsider an original sentence apply equally when a trial judge has imposed a new and different sentence in response to an initial defense motion for reconsideration, particularly where, as here, a different trial judge has imposed the new sentence.

In our view, defendant was required to file a new motion for reconsideration of sentence in the trial court in order to preserve appellate review of the new sentence. Accordingly, in this case the defendant is procedurally barred from having his challenge to the new sentence reviewed by this court on appeal. State v. Felder, 2000-2887, p. 10 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173; State v. Duncan, 94-1563, p. 2 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).

Insofar as the second sentence is concerned, we note that the trial judge did not vacate the original sentence before sentencing defendant on the second occasion. As it is apparent from the court’s actions that it intended to vacate the original sentence, out of an abundance of caution, we vacate the first sentence. See State v. Thomas, 95-2348, pp. 6-7 (La.App. 1 Cir. 12/20/96), 686 So.2d 145, 149, writ denied, 97-0192 (La.3/14/97), 690 So.2d 36.

DECREE

For these reasons, we affirm the conviction of defendant, Darrell R. Smith, Jr. The original sentence is vacated, and his sentence of seven years at hard labor with a fine of $5,000.00, imposed on February 14, 2003, is affirmed.

CONVICTION AFFIRMED; ORIGINAL SENTENCE VACATED; SENTENCE OF FEBRUARY 14, 2003 AFFIRMED.

CARTER, J., concurs with reasons.

WHIPPLE, J., concurs for reasons assigned by C.J. CARTER.

FITZSIMMONS, J., concurs in the result and assigns reasons.

FOIL, J., concurs in the result.

GUIDRY, J., concurs in the result only for the reasons assigned by C.J. CARTER.

L CARTER, C.J.,

concurring in the result only.

I respectfully submit that the majority errs in deciding that a defendant who has been convicted and sentenced, who has timely filed a motion to reconsider sentence in full compliance with Louisiana Code of Criminal Procedure article 881.1, and who has been denied the full relief requested at the district court level, must file yet another motion to reconsider sentence to preserve the issue of the exces-siveness of his sentence for appellate review. Article 881.1 was designed to give the trial judge an opportunity to review the appropriateness of the sentence imposed. To require a defendant who has been granted only part of the relief requested to file yet another motion for reconsideration before seeking the appellate review to which he is constitutionally entitled is, in my view, a waste of judicial resources and an inefficient use of judicial time.

Moreover, the majority’s hyper-technical interpretation of article 881.1 does nothing to materially further the salutary goals that article was intended to accomplish. I consider defendant’s motions for reconsideration of his original [¡.sentence to have adequately preserved the matter for appellate review. For that reason, I would review defendant’s sentence for excessiveness.

The trial court has wide, although not unbridled, discretion in the imposition of a sentence within statutory limits. See State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or is nothing more than the needless imposition of pain and suffering. The determination turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Waguespack, 589 So.2d 1079, 1086 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209 (La.1992).

A sentence may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. Id. A sentence imposed within the statutory limits will not be set aside as excessive in the absence of a manifest abuse of discretion. Sepulvado, 367 So.2d at 767; State v. Latiolais, 563 So.2d 469, 473 (La.App. 1 Cir.1990).

In this case, the trial court conducted a sentencing hearing pursuant' to defendant’s motion to reconsider his original sentence. At the hearing, defendant and other witnesses testified. Defendant, while admitting his crime, expressed remorse and indicated that he had turned his life around during a twenty-six-month drug-rehabilitation program. A representative of the program confirmed that defendant had made notable progress. The court also heard from the probation officer who prepared the pre-sentence investigation report. The report, as originally filed, recommended probation. However, the officer indicated that if he had been in possession of all relevant facts at the time he wrote his report, he |3would have recommended a term of imprisonment to be determined by the trial judge, rather than probation.

Defendant’s conviction of possession with the intent to distribute diazepam exposed him to a sentence of up to ten years at hard labor and a fine of up to $15,000. LSA-R.S. 40:969 B(2). He was originally sentenced to serve ten years at hard labor. In his amended motion to reconsider the original sentence, defense counsel recommended imposition of a sentence of five years of imprisonment instead of the original ten-year sentence imposed. He also recommended that defendant be given credit for the twenty-six months spent in a rehabilitation program. The new trial judge granted the motion in part, substantially reducing the term of imprisonment to seven years at hard labor. The term of imprisonment and the accompanying $5,000 fine imposed were both well within statutory limits.

Defendant also had the benefit of the state’s dismissal of additional charges that would have exposed him to an even longer period of incarceration. Defendant admitted to the distribution of additional illegal substances. And although defendant was reportedly making good progress in a drug-rehabilitation program, he committed this drug-related offense while enrolled in a drug-rehabilitation program. In view of the conduct defendant admitted during his sentencing hearings, the new sentence imposed does not shock the conscience. Nor do I consider it to be grossly out of proportion to the offense or an abuse of the vast sentencing discretion accorded to the trial judge. Thus, my review of the record satisfies me that the new sentence imposed is not constitutionally excessive. Accordingly, I would not disturb defendant’s sentence on appeal.

I agree with the majority that, because it is apparent from the trial court’s actions that it intended to vacate the original sentence, this court should vacate the first sentence out of an abundance of caution. See State v. Thomas, 95-2348 (La.App.4 1 Cir. 12/20/96), 686 So.2d 145, 149, writ denied, 97-0192 (La.3/14/97), 690 So.2d 36.

For the foregoing reasons, I concur in the result reached by the majority.

FITZSIMMONS, J., concurs in the Result and Assigns Reasons.

| FITZSIMMONS, Judge,

concurring, with reasons.

Under the particular facts here, the sentence is neither constitutionally invalid nor abusively excessive. Therefore, I respectfully concur in the result.

However, I do not agree that a second motion for consideration is required to preserve for review the defendant’s exces-siveness claim. Notwithstanding any requirement for successive motions, I have long believed that the appellate court has a constitutional duty, if not a statutory one, to review a claim that the sentence should shock our conscience and violates the constitutional prohibition against the “needless infliction of pain and suffering.” State v. Taves, 03-0518, pp. 4-5 (La.12/3/03), 861 So.2d 144, 147-48. If the defendant makes such an argument on appeal, the only inquiry would be whether the sentence is so excessive that it is constitutionally infirm, not merely whether the trial court abused its discretion in imposing an excessive sentence. If the sentence is not found to be constitutionally infirm, the inquiry ends and the sentence stands.

      . Defendant's name is spelled in various ways throughout the record. The caption on the bill of information shows defendant's name as Darryl Smith, although the individual counts in the bill list his name as Darrell Smith. We have adopted for use in this opinion the spelling used on the front sheet of the record, which corresponds to the name, as shown on defendant’s most recent criminal commitment sheet.

      . Darrell Smith, Trenton Kidder, and Shannon Truitt were jointly charged in the same bill of information with eleven counts of possession and/or possession with intent to distribute various controlled dangerous substances. On January 30, 2002, the State orally amended the bill of information to add Darrell Smith to count one of the bill of information for possession with intent to distribute diazepam. At the same time, the State dismissed counts X and XI. The remaining counts affected only Trenton Kidder and Shannon Truitt. Proceedings pursuant to those counts are not before us for review.

      . The State applied for writs to this Court, arguing that the original sentence should not have been reduced. We denied the State's application in an unpublished action. State v. Smith, 2003-0456 (La.App. 1 Cir. 4/17/03). On May 16, 2003, the State applied for a supervisory writ to the Louisiana Supreme Court, which was denied. State v. Smith, 2003-1377 (La. 1/30/04), 865 So.2d 72.

      . We have been unable to locate any authority on the question of whether a timely motion to reconsider sentence may properly be amended to assert a new ground for reconsideration after the statutory thirty-day period has elapsed. Compare Annotation, Amendment, After Expiration of Time for Filing Motion for New Trial in Criminal Case, of Motion Made in Due Time, 69 A.L.R. 3rd 933 (1976), and cases cited therein. Arguably, the filing of an amended motion for reconsideration of sentence only brings an additional argument before the trial judge, who would be empowered to grant any relief he deemed appropriate and consistent with law, regardless of the grounds raised in the motion. See, e.g., State v. Thomas, 95-2348, p. 2 (La.App. 1 Cir. 12/20/96), 686 So.2d 145, 146, writ denied, 97-0192 (La.3/14/97), 690 So.2d 36, where the relief granted was different from that requested. Failure to cite a particular ground, however, may affect the scope of appellate review. In this case, the only new ground asserted was that the sentence imposed was unconstitutionally excessive. Had defendant urged no specific ground whatsoever in his initial written motion for reconsideration, we would have reviewed the sentence for a bare claim of unconstitutional excessiveness. Thus, it does not appear that the amendment in this case had any prohibited effect or enlarged what otherwise would have been the scope of appellate review. We do not address the effectiveness, for the purpose of preserving appellate review, of an amendment to a motion for reconsideration filed after the thirty-day statutory period that raises for the first time a ground other than constitutional excessiveness and where no relief is granted in the trial court.

      . A new sentence imposed under this provision of the code is distinguishable from a change or amendment made to a sentence pursuant to LSA-C.Cr.P. art. 881.

      . We note that former paragraphs B to D were redesignated as paragraphs C to E by 2003 La. Acts, No. 167, § 1.

      . See and compare State v. Chisolm, 99-1055, pp. 9-10 (La.App. 4 Cir. 9/27/00), 771 So.2d 205, 212, writs denied, 2000-2965 and 2000-3077 (La.9/28/01), 798 So.2d 106 and 798 So.2d 108; State v. Lewis, 98-2575, pp. 5-6 (La.App. 4 Cir. 3/1/00), 755 So.2d 1025, 1028; State v, Franklin, 94-409, pp. 13-14 (La.App. 5 Cir. 12/14/94), 648 So.2d 962, 968-969, writ denied, 95-0143 (La.5/19/95), 654 So.2d 1354. In these cases, it was found that a motion for reconsideration of an initial sentence imposed did not preserve appellate review when the initial sentence was vacated and a new sentence imposed pursuant to the Habitual Offender Law. See also State v. Young, 94-2256, p. 5 (La.App. 1 Cir. 12/15/95), 665 So.2d 175, 177, aff'd on other grounds, 96-0195 (La. 10/15/96), 680 So.2d 1171. There, defendant filed a motion to reconsider his sentence, which was denied. We vacated the sentence on appeal due to a patent sentencing error and remanded the matter to the trial court for resentencing. Defendant appealed the new sentence as excessive. The State objected that no new motion for reconsideration had been filed. We did not rely on the filing of the initial motion for reconsideration as a basis for appellate review. Rather, we found that the defendant orally renewed his objection at the resentencing hearing on remand, thereby making an oral motion for reconsideration sufficient to preserve appellate review.