author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Wayne BROWN.
    No. 2010-KA-0852.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 26, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

^STATEMENT OF THE CASE

Defendant Wayne Brown was charged by bill of information with second degree robbery, a violation of La. R.S. 14:64.4. He pleaded not guilty at his arraignment. Subsequently a twelve-person jury found him guilty of second degree battery. Initially defendant was sentenced to five years at hard labor but later was adjudicated a third-felony habitual offender. The trial court vacated the original sentence, sentenced defendant to five years at hard labor, and granted defendant’s motion for appeal.

TESTIMONY

New Orleans Police Department Senior Dispatcher Stephanie Brisco identified an audiotape and paper incident recall of a 911 call of the incident.

New Orleans Police Officer Stephanie Caldwell testified that she and her partner, Officer Jeremy Smith, responded to a call at 3103 Cleveland Street. The call was a general complaint with screaming heard in the background. Officer Caldwell observed that the victim’s face was “just completely brutalized, beaten,” describing the swelling as “the size of a grapefruit.” Officer Caldwell identified | ^photographs of the injured victim, as she appeared to the officer at the time of the incident. The injuries appeared to be a laceration to the victim’s left ear that was bleeding and considerable swelling on the right side of the victim’s head in the temple area. The victim was transported to the hospital after Officer Caldwell took her statement. Officer Caldwell testified defendant was not on the scene. She confirmed on cross examination that the police report categorized the offense as a second degree battery and said it appeared to be a domestic abuse case. On redirect the witness stated her report reflected a theft as well as a second degree battery because the victim reported that the defendant had grabbed her cell phone as he left.

New Orleans Police Officer Jeremy Smith testified that the victim had severe trauma to both sides of her head. Officer Smith identified the photos of the victim and said they accurately reflected her injuries. Office Smith conceded that when he wrote the application for an arrest warrant he listed simple battery as the charge, but crossed that out and wrote in second degree battery. The investigation showed that the incident arose because defendant wanted to resume a relationship with the victim, and that there were five or six people inside of the residence when the incident occurred. To the best of Officer Smith’s knowledge, the incident occurred outside. He confirmed on cross examination that no blunt object or weapon was used. On redirect the officer confirmed that everyone present was in hysterics. The victim was crying and sort of hysterical; the officers calmed her down before taking her statement. Officer Smith believed the victim’s sister drove her to the hospital; she did not go with an EMS unit.

IsAnnette Martin, the victim, testified that defendant beat her on the date in question. He punched her with his fists, and when she was on the ground he kicked her with his feet. He was cursing her, calling her “bit — ” and things like that. He also threw a hair dryer on her head. The hair dryer was the type that one sits underneath. She tried to run to the front door, but defendant grabbed her and dragged her back. The victim denied the beating occurred outside. She said she missed two weeks of work because her face was so injured — she had stitches, a knot on her head, and her eyes had purple and green bruising. Ms. Martin claimed to have had memory problems since getting hit in the head with the hair dryer. She was alone during the beating, but her sister returned afterward with the victim’s children. The victim stated that she had ended her relationship with defendant in February 2007, but he did not want to leave her alone and kept harassing her.

Ms. Martin denied passing out from the beating. She conceded that she and defendant were dating and that he kept a few of his clothes at the house. The victim confirmed that it seemed like defendant was in her residence about twenty or thirty minutes, and that during that time her sister telephoned her two or three times. When she answered her phone in front of defendant he told her that she better not say anything. She testified that she was scared.

Katie Carter, an investigator for the Orleans Parish Public Defender’s Office, testified that she took a statement from the victim. Carter’s testimony pertained to defendant’s alleged taking of the victim’s cell phone and her statement to Carter regarding that allegation.

\ .ERRORS PATENT

A review of the record reveals no patent errors.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant argues that the evidence is insufficient to support his conviction for second degree battery.

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

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

98-0011 at pp. 18-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

La. R.S. 14:34.1 defines second degree battery as

A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury; however, this provision shall not apply to a medical provider who has obtained the consent of a patient.
B. For purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

In a prosecution for second degree battery, the State must prove: (1) the defendant committed a battery; (2) without the victim’s consent; and (3) the victim suffered serious bodily injury. State v. Helou, 2002-2302, p. 5 (La.10/23/03), 857 So.2d 1024, 1027-1028; State v. Hernandez, 96-0115, pp. 4-5 (La.App. 4 Cir. 12/18/96), 686 So.2d 92, 95.

Defendant’s argument on insufficiency of the evidence for second degree battery is directed to the issue of the evidence on the element of “serious bodily injury.”

16In Hernandez, supra, the defendant struck his wife and two daughters repeatedly with an electrical cord. He was convicted on two counts of simple battery and one count of second-degree battery. This court affirmed the conviction, for second degree battery. That victim testified that the extension cord struck her in the face, cutting her. The defendant then struck her on the back. The injuries burned. She was also cut on the finger when she used her hand to shield her face. The skin on her finger peeled all the way back. One of the investigating detectives described this victim as having the most injuries: a cut to her nose; one to her shoulder; and one to her finger. He described one of her injuries as a laceration to the corner of the right eye and nose area. Another officer described one of the injuries as an elongated laceration in which the skin was broken on her upper left shoulder blade.

There was no indication in Hernandez that expert medical testimony or medical records were introduced and/or relied upon by the trial court/jury in reaching its verdict or by this court in finding that the evidence was sufficient to establish that the defendant had the specific intent to inflict serious bodily injury on his fourteen-year-old daughter.

In State v. Accardo, 466 So.2d 549 (La. App. 5 Cir.1985), the appellate court found the evidence sufficient to establish that the defendant inflicted “serious bodily injury” on the victim after he struck her in the head with either his fist or a blackjack. The court found that, although the victim did not testify that the blow caused her “extreme pain,” she said it caused her pain and swelling to her head. The victim had asked her assailant to get her some ice, but all he could offer was a cold beer which she applied to reduce the swelling. No expert medical testimony 17or medical evidence was considered by the appellate court when assessing the sufficiency of the evidence.

Defendant cites Helou, supra, where the Louisiana Supreme Court reversed the defendant’s conviction for second degree battery. The defendant spat at the victim and his wife. The victim swung at the defendant in a self-defense gesture, and the defendant punched the victim in the nose with his fist. The defendant’s two companions then jumped on the victim and beat him until bystanders yelled that the police were on the way. The victim sustained a bloody nose and he bled heavily. He initially refused treatment but ultimately was transported to the hospital in an ambulance for treatment of his bloody nose. In reversing the defendant’s conviction for second degree battery and entering a responsive verdict for simple battery, the Louisiana Supreme Court stated:

After a careful review of LSA-R.S. 14:34.1 and the related jurisprudence, we find that in the case sub judice, the State failed to offer any evidence of “extreme physical pain” by way of testimony from the fact witnesses. Nor do we have testimony from medical witnesses or medical records, which would prove this factor. Rather, the evidence presented, dealt solely with the amount of blood the victim lost. The record demonstrates that at trial the State’s direct examination of its witnesses completely avoided the subject of pain. We cannot infer that the loss of blood is tantamount to “extreme physical pain.” We also cannot infer that a punch in the nose, without more evidence, is sufficient to support a conviction of second degree battery.
In summary, there is no testimony that the victim lost consciousness at any time despite the victim’s “confusion” as to whether his wife rode with him in the ambulance to the hospital. There is no evidence of severe injury. In fact, the victim initially declined medical help; he required only a brief visit to the emergency room; thereafter, he sought no further medical attention, and there is no evidence of disfigurement or permanent disability. No medical personnel appeared at trial to provide jurors with a diagnosis or a summary of | sthe victim’s treatment. The only evidence in the record is the medical bill for $983.90. There was no explanation of what medical services were provided to the victim. Because the State failed in its burden of proof, any conclusion by the jury as to pain suffered by the victim was simply a guess on the jury’s part, since the State failed to offer any evidence on the issue. Simply put, because the jury had to infer the victim’s pain, the State failed to prove beyond a reasonable doubt that the victim, in fact, suffered “extreme physical pain” as required by the statute. Accordingly, we conclude that the evidence is insufficient to sustain the defendant’s conviction for second degree battery.

Helou, 2002-2302, pp. 8-9 (La.10/23/03), 857 So.2d at 1029.

In Helou, the Louisiana Supreme Court noted Accardo, supra, as a case in which “less substantial” injuries constituted “serious bodily injury.” The court also cited Hernandez, supra, which it noted had been cited and distinguished in the dissent in the Court of Appeal, a majority of which had found the evidence sufficient to support the defendant’s conviction. See State v. Helou, 2002-77 (La.App. 3 Cir. 6/5/02), 822 So.2d 647.

The evidence in the instant case is that defendant threw a large console hair dryer at the victim, striking her on the right side of her head, causing considerable swelling. Officer Stephanie Caldwell described the swelling as “the size of a grapefruit.” She testified that the photographs depicted the injuries she observed upon her arrival at the scene. However, the swelling depicted in the photos is somewhat less than the size of a grapefruit. Officer Caldwell observed that the victim’s face “was just completely brutalized, beaten.” The victim had a laceration to her left ear that was bleeding or had bled onto her neck. The victim testified that her eyes later turned black and blue from bruising and that she missed two weeks of work due to the way her injuries left her looking. In addition to striking the |avictim with the hair dryer, defendant beat her with his fists and then kicked her when she fell down.

In light of the jurisprudence, viewing all of the evidence in a light most favorable to the prosecution, we find any rational trier of fact could have found beyond a reasonable doubt that defendant possessed specific intent to, and in fact did, inflict “serious bodily injury” on the victim.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error defendant argues that the trial court erred in permitting hearsay evidence over his objection, namely the 911 call and the victim’s certified medical records.

911 Call

Defendant filed a motion in limine on the morning of trial, seeking to bar the State from introducing the 911 call into evidence, arguing that the probative value was substantially outweighed by the danger of unfair prejudice as contemplated by La. C.E. art. 403.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Relevant evidence is generally admissible. La. C.E. art. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. La. C.E. art. 403. Unfair prejudice as used in La. C.E. art. 403 means that “the offered evidence has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” Author’s |10Note (3) to La. C.E. art. 403, Handbook on Louisiana Evidence Law, Pugh, Force, Rault & Triche (2009).

A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Bell, 2005-0808, p. 12 (La.App. 4 Cir. 12/6/06), 947 So.2d 774, 781; State v. Lewis, 97-2854, p. 20 (La. App. 4 Cir. 5/19/99), 736 So.2d 1004, 1017. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. Bell, supra; State v. Hall, 2002-1098, p. 8 (La. App. 4 Cir. 3/19/03), 843 So.2d 488, 496.

Defendant argued in his pretrial motion and on the day of trial that the 911 call was only marginally relevant to the crime charged-second degree robbery-and that the marginal relevance was substantially outweighed by the danger of unfair prejudice.

Second degree robbery is a taking from another when the offender intentionally inflicts “serious bodily injury.” La. R.S. 14:64.4. “Serious bodily injury” is defined in La. R.S. 14:64.4 exactly the same as it in La. R.S. 14:34.4 for second degree battery, the crime for which defendant was convicted.

In his written motion in limine, defendant stated that the fact that the victim suffered injuries in an attack and that defendant was the attacker were only “slightly relevant” to the charged offense. However, these facts were highly relevant and probative as to the crime charged. In arguing his motion on the morning of trial, defendant suggested the evidence was cumulative and that the relevancy was substantially outweighed by the danger of unfair prejudice.

However, as previously discussed, defendant questioned the sufficiency of the evidence as to the degree of injury sustained by the victim. The emotional |nnature of the 911 call could be seen as suggestive of the magnitude of the injury defendant inflicted on the victim. The 911 call also explained the police involvement in the case.

In State v. Sholes, 99-2414 (La.App. 4 Cir. 3/7/01), 782 So.2d 691, the defendant argued that the trial court erred in admitting the recording of a 911 call because it contained the distraught cries of the murder victim’s brother. This court held that the 911 call was relevant to show the time and location of the shooting, and that the emotional trauma of the caller did not diminish the probative value and admissibility of the recording.

In State v. McQuarter, 2000-1553 (La. App. 4 Cir. 6/6/01), 788 So.2d 1266, a 911 tape reflected the victim crying in the background while someone else made the call. The defendant was convicted of attempted manslaughter and second degree kidnapping. On appeal he argued that the trial court erred in admitting the 911 call, asserting that the only reason the State introduced it was to inflame the jury and to prejudice his defense. This court rejected that argument, finding that the State’s only purpose in introducing the tape and complaint history was to explain police involvement. This court found no indication the trial court abused its discretion in admitting the 911 call, or that it prejudiced the defendant.

In the instant case, despite the emotional nature of the call, we cannot say that the trial court abused its discretion in implicitly concluding that the probative value of the call was not substantially outweighed by the danger of unfair prejudice to defendant.

There is no merit to this part of defendant’s second assignment of error.

1KMedical Records

Defendant argues that the trial court erred in admitting into evidence the medical records from the victim’s treatment for injuries allegedly inflicted by him. Defendant does not contend that the medical records are not what they purport to be. He argued at trial that the trial court should exclude them because the State only turned them over to him on the Friday before the Monday trial began. We note that the State apparently did not even file a motion and order for issuance of a subpoena duces tecum seeking the victim’s medical records until ten days before trial. The State maintained that it turned over the medical records as soon as it got them.

La.C.Cr.P. art. 729.5 authorizes the trial court to sanction a party who has failed to comply with the discovery rules set forth in the Louisiana Code of Criminal Procedure. Under La.C.Cr.P. art. 729.5 the court “may,” among other things, prohibit the party from introducing into evidence the subject matter not disclosed. Discovery by a defendant, at least of medical records such as those in the instant case, is contingent upon the defendant moving for discovery by written motion. See La.C.Cr.P. art. 718.

11sDefendant concedes that the record does not contain any discovery motions filed by defendant, but he submits that the trial court “recognized” that such motions had been filed. Defendant represented to the trial court in argument that prior defense counsel had filed a motion for discovery on November 19, 2008. However, while the crime was committed on August 13, 2007, defendant was not arrested until September 2008, and was not charged until February 19, 2009. The docket master for magistrate court, covering defendant’s first appearance on September 14, 2008 through a rule to show cause on November 12, 2008, does not reflect that any discovery motions were filed on defendant’s behalf in magistrate court.

The docket master and minute entries after defendant was charged reflect that defendant’s trial counsel was appointed at his arraignment. The docket master and minute entries for his arraignment reflect that a hearing on motions was set for April 17, 2009, but that hearing was continued by the State until May 28, 2009. The only “motions” reflected by the docket master and minute entries for May 28, 2009 were a preliminary hearing, after which the trial court found probable cause, and a motion for release. There was no confession/statement by defendant or identification procedure involving him, so there were no motions to suppress.

Neither the docket master nor the minute entries reflects that any motions for discovery were filed on behalf of defendant at any time after his arrest for the _[_yinstant offense. The record contains no discovery motions filed by defendant, nor any indication that any were ever filed.

In State v. Forest, 2008-1474 (La.7/24/08), 986 So.2d 667, the Louisiana Supreme Court reversed a trial court’s ruling barring the State from using a confession by the defendant due to the State’s alleged violation of discovery rules. This court had denied the State’s writ application seeking review of the trial court action. State v. Forest, unpub., 2008-0666 (La.App. 4 Cir. 5/29/2008). In reversing the trial court the Louisiana Supreme Court noted that there “apparently” was no discovery motion filed by the defendant, and thus no court-ordered discovery. The court further noted that the docket sheet did not demonstrate that a discovery motion was filed by the defendant. The court held that to prevent the State from using the confession there must have been a motion by the defendant seeking discovery thereof pursuant to La.C.Cr.P. art. 716, and/or an order from the trial court mandating that such material be disclosed. The court also noted that the State had properly notified defendant of its intent to introduce the confession in writing prior to giving its opening statement, thus complying with La.C.Cr.P. art. 768.

Given that the record here does not reflect that defendant filed any discovery motion seeking production of documents under La.C.Cr.P. art. 718, indeed no discovery motions at all, nor are there any orders requiring the State to produce we cannot find the trial court erred in denying defendant’s motion in limine.

Defendant also argues that he was denied his right to confront his accuser when the trial court refused to allow him to impeach the victim using the medical records. However, while defendant cites several places in the transcript where the trial court purportedly made rulings against him in this regard, the record does not | ^substantiate these claims. The transcript reflects that the trial court overruled almost all of the objections by the State to defendant’s questions based on the medical records. The record does reflect at one point that the prosecutor asked to approach the bench, and that after the bench conference the trial court directed defense counsel to ask his next question, but the bench conference was not transcribed, and the record does not reflect an objection by the State that was sustained during the bench conference.

Defendant seems to argue that the medical records constituted hearsay because there was no witness from the hospital identifying them; that there was no such witness; and that thus the records should not have been introduced. However, there is no indication from the record, including the trial transcript, that defendant ever lodged a hearsay objection to the medical records. The failure to object contemporaneously to hearsay evidence precludes review of that issue on appeal. State v. Henry, 96-1280, p. 6 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325, citing La.C.Cr.P. art. 841. Generally, hearsay not objected to constitutes substantive evidence. State v. Dabney, 2002-0934, p. 6 (La.4/9/03), 842 So.2d 326, 330.

Finally, even assuming the medical records should not have been admitted, any such error in admitting them was harmless. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172; State v. Barbour, 2009-1258, p. 14 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1150.

It is not disputed that the victim went to the hospital. The unobjected to photographs graphically depicted the victim’s injuries. Two responding police officers testified to the injuries they observed, as depicted in the photographs. The | ^victim testified to her injuries. The medical/hospital records actually confirm that the victim did not have any facial fractures, only soft tissue swelling, a fact which benefited defendant as to the issue of the severity of the injuries. We conclude beyond a reasonable doubt that the guilty verdict was surely not attributable to any error in admitting the medical records in question.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, defendant contends that the trial court erred in: (1) failing to sanction the State by barring it from introducing evidence of defendant’s alleged prior convictions at the habitual offender hearing pursuant to La.C.Cr.P. art. 729.5; (2) that the 1990 offense was not a “conviction” for habitual offender purposes; and (3) that the State failed to prove there was less than a ten-year lapse between the expiration of his sentence from the alleged 1995 conviction and his 2007 arrest for the instant offense.

Defendant cites no Louisiana jurisprudence where a trial court excluded records of a defendant’s prior convictions at a habitual offender proceeding on authority of La.C.Cr. P. art. 729.5. Moreover, as previously discussed, the record does not contain any discovery motions filed by defendant, or any indication that any were ever filed. Sanctions under La.C.Cr.P. art. 729.5 are contingent upon a defendant having filed discovery motions/requests. Given defendant’s failure to establish that he filed any such discovery motions, there is no merit to his claim that the trial court erred in failing to sanction the State under La.C.Cr.P. art. 729.5 by excluding the documents purporting to evidence defendant’s prior convictions.

117Pefendant next argues that his 1990 plea to possession of a controlled dangerous substance pursuant to former La. R.S. 40:983 does not establish a “conviction” upon which a habitual offender adjudication can be based.

At the habitual offender hearing defense counsel raised four objections besides the one as to the alleged discovery violation. He objected to: (1) the lack of proof of defendant’s identity as the person allegedly previously convicted; (2) the lack of proof that defendant had been properly Boykinized as to the alleged predicate convictions; (3) the State’s failure to establish that the so-called cleansing periods had not elapsed as to both alleged prior convictions; and (4) the inadequacy of the alleged 1990 conviction, which defense counsel argued was pursuant to former La. 40:983 (Repealed by Acts 1995, No. 1251, § 2). Defendant raises only the last two issues on appeal,

The record evidence of defendant’s alleged prior convictions consists of only arrest registers. One arrest register, identified as State Exhibit S-l, reflects that defendant was arrested in 1989 for possession of crack cocaine, a violation of La. R.S. 40:967(C)(2). The second arrest register, identified as State Exhibit S-2, reflects that defendant was arrested in 1995 for aggravated battery. The record does not contain copies of any documents reflecting defendant’s two prior pleas, one in 1990 and one in 1995. Those documents, which a minute entry and the transcript of the habitual offender hearing identify as State Exhibits S-4 and S-5, respectively, are not contained in the record and cannot be located.

| iSThe habitual offender bill of information charged defendant with having pleaded guilty to possession of crack cocaine in 1990, in Case No. 339-770, and to having pleaded guilty as charged to aggravated battery in 1995, in Case No. 375-518.

As to defendant’s 1990 plea in Case No. 339-770, defense counsel elicited from the witness that the back of State Exhibit S-4, the plea form in that case, said “R.S. 4-0:983.” Defense counsel’s argument was that this pléa was pursuant to former La. R.S. 40:983, which provided at all relevant times:

Whenever any person who has not previously been convicted of any offense under this part pleads guilty to or is convicted of having violated R.S. 40:966 C, 40:967 C, 40:968 C, 40:969 C, 40:970 C of this part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required.
Upon the defendant’s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
Upon fulfillment of the terms and conditions of probation imposed in accordance with this section, the court shall discharge such person and dismiss the proceedings against him.
Discharge and dismissal under this section shall be without adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.

A plea of guilty under La. R.S. 40:983 is not an adjudication of guilt and cannot serve as a predicate conviction under La. R.S. 15:529.1. State v. Christian, 618 So.2d 559, 560 (La.App. 4 Cir.1993) (“The State agrees a plea of guilty | ^pursuant to R.S. 40:983 cannot be considered an adjudication of guilt and thus cannot be used as an underlying offense in an enhancement proceeding. State v. Randall, 464 So.2d 971 (La.App. 4th Cir.1985). The multiple bill adjudication should be vacated.”); see also State v. Goldston, 2003-1215 (La.App. 4 Cir. 2/11/04), 868 So.2d 196. In Goldston, the defendant argued that his prior guilty plea to possession of cocaine pursuant to former La. R.S. 40:983 could not be used as a predicate offense for habitual offender purposes under La. R.S. 15:529.1. However, this court distinguished the circumstances from, inter alia, those in Christian, supra, because the defendant’s probation on that offense had been revoked, his plea under La. R.S. 40:983 set aside, and an adjudication of guilt imposed on him.

Thus, in the instant case, if defendant entered a 1990 plea pursuant to former La. R.S. 40:983 such a plea cannot be used as a predicate offense under La. R.S. 15:529.1 — absent evidence, for example, that his probation was revoked, his plea under La. R.S. 40:983 set aside, and an adjudication of guilt imposed upon him. We find it significant that the State fails to address or mention this issue in its appellate brief.

La. Const. Art. I, § 19 provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” The right to review of a complete record has been found to apply in habitual offender proceedings. State v. Simmons, 99-1154, p. p. 10 (La.App. 4 Cir. 12/6/00), 779 So.2d 856, 862. However, a defendant is not entitled to relief absent a showing of prejudice based on the missing portions of the record. Simmons, 99-1154 at p. 10, 779 So.2d at 862-863, citing State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, | 2q773. Also, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” would not cause a court to reverse a defendant’s conviction. State v. Allen, 95-1754, p. 11 (La.9/5/96), 682 So.2d 713, 722.

Defendant does not raise the issue that the record is lacking the documents definitively evidencing that his plea in Case No. 339-770 was pursuant to La. R.S. 40:983. However, he does argue, as did his trial counsel, that the plea was under former La. R.S. 40:983 and thus did not constitute a conviction for purposes of La. R.S. 15:529.1. While defendant’s trial counsel did not file a written pleading objecting to the legitimacy of the 1990 conviction, or as to the 1995 conviction either, pursuant to La. R.S. 15:529.1(D)(l)(b), defendant’s trial counsel only received the documents on the day of the habitual offender hearing. Defendant’s trial counsel zealously advocated the La. R.S. 40:983 issue at the habitual offender hearing, and this issue is preserved. Defendant is clearly prejudiced by the absence from the record of the document(s) evidencing his 1990 guilty plea in Case No. 339-770, because this court cannot review his claim with respect to former La. R.S. 40:983.

Accordingly, because the police officer testifying at the habitual offender hearing admitted that his records showed defendant’s earlier plea was pursuant to La. R.S. 40:983 the trial court erred in finding defendant a third-felony offender based on that plea. The absence from the appellate record of the plea form in Case No. 339-770 effectively prevents this court from reviewing the merits of defendant’s claim that the plea was entered pursuant to La. R.S. 40:983, so defendant’s adjudication as a third-felony habitual offender must be vacated.

| ⅞, Defendant also argues that the State failed to show that less than ten years had elapsed between his August 24, 1995 conviction for aggravated battery in Case No. 375-518 and the August 13, 2007 commission of the instant offense. As previously discussed, State Exhibit S-5, the evidence of defendant’s plea of guilty in Case No. 375-518, is missing from the appellate record and the trial transcript contains no testimony concerning the date defendant may have completed his five-year sentence in Case No. 375-518 and/or been discharged from State supervision.

State Exhibit S-l, an arrest register which is contained in the record, reflects that defendant was arrested for the 1995 aggravated battery offense on March 2, 1995. It is not disputed that defendant pleaded guilty on August 24, 1995, in Case No. 375-518, as alleged in the habitual offender bill of information. According to the testimony at the habitual offender hearing, defendant was sentenced to serve five years at hard labor on the subject conviction. This is consistent with the allegations in the State’s habitual offender bill of information.

Under La. R.S. 15:529.1(C), defendant’s instant conviction shall not be counted as a second, third, fourth or higher offense if more than ten years has elapsed since the date of expiration of the maximum sentence of the previous conviction. In computing the ten-year interval of time, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the ten-year period. Id.

For habitual offender purposes, the State has the burden of proving that ten years has not elapsed between the date of the defendant’s release from custody on the prior offense and the date of the new offense. State v. Williams, 2002-1815, pp. 4-5 (La.App. 4 Cir. 11/20/02), 833 So.2d 428, 431-432. The date of the defendant’s actual discharge from supervision from the Department of Corrections ^determines the expiration of the previous sentence. State v. Collins, 2001-1459, p. 4 (La.App. 4 Cir. 8/21/02), 826 So.2d 598, 615-616.

In State v. Martello, 98-2066 (La.App. 4 Cir. 11/17/99), 748 So.2d 1192, the trial court adjudicated the defendant a third-felony habitual offender. On appeal defendant argued that the State failed to prove that the ten-year cleansing period under La. R.S. 15:529.1(C) had not elapsed. This court noted that the State had failed to introduce evidence to establish the date the defendant had been discharged from State supervision. This court calculated the cleansing period using the defendant’s sentence, the date of his conviction, the date of his arrest, the applicable “good time” or diminution of sentence for good behavior as set forth in La. R.S. 15:571.3, and assumed he got credit for time served between his arrest and conviction. This court also assumed the defendant was a first-felony offender entitled to full good time benefits and that he received all the good time credit he would have been eligible for.

This court stated in Martello that while it was possible, though highly improbable, that the defendant received a pardon or commutation of either of his two prior predicate felony convictions, the record reflected that “more probably than not,” the ten-year cleansing period had not expired, citing State v. Turner, 365 So.2d 1352, 1355 (La.1978) for the proposition that this level of proof as to the cleansing period was sufficient to support a habitual offender adjudication. While this court mentioned the possibility of the defendant being paroled after serving one-third of his sentence pursuant to La. R.S. 15:571.4, it noted that a parole date does not equate with a discharge date, given that a parolee remains under the supervision of the Department of Corrections, and his discharge date is the date he is actually discharged from such supervision.

12Jn the instant case, defendant’s argument on appeal assumes that he did receive a five-year sentence for his 1995 conviction; that is not in dispute. Also, defendant implicitly acknowledges that he did not receive probation. There is no evidence that defendant was other than a first-felony offender, given the questions about his guilty plea entered pursuant to La. R.S. 40:983, as previously discussed, and the lack of any evidence of a prior felony conviction. At the time of both his arrest and conviction for the 1995 offense, La. R.S. 15:571.3(A)(1) and (B)(1), covering parish prison time and Department of Corrections time, respectively, both provided that a prisoner receive good time at the rate of thirty days for each thirty days served in actual custody. Thus, in essence, defendant could have possibly been discharged from State supervision under the good time provision after serving only two and one-half years of his five-year sentence. Assuming defendant was incarcerated after his March 2, 1995 arrest, and giving him credit for time served, with full good time benefits earned he would have been discharged from State supervision on approximately August 2, 1997. Ten years from August 2, 1997 would be August 2, 2007. Defendant perpetrated the instant offense on August 13, 2007. Thus, this calculation shows that the ten-year cleansing period provided by La. R.S. 15:529.1(C) could have expired some ten days prior to defendant’s commission of the instant offense.

Accordingly, given the above calculation, we cannot find, even by a “more probable than not” standard, that the ten-year cleansing period of La. R.S. 15:529.1(C) as to defendant’s 1995 conviction had not expired at the time he committed the instant offense. Either the record is incomplete, and it cannot be definitively determined whether the State met its burden of proving that the ten-jyear^ cleansing period had not elapsed or the record evidence shows that the State failed to establish that fact.

In conclusion, the record as to the habitual offender proceeding is incomplete. The evidence in the record indicates that defendant’s prior 1990 plea to possession of cocaine in Case No. 339-770 was pursuant to La. R.S. 40:983, and thus cannot be used as a predicate conviction for adjudication as a habitual offender. The evidence in the record also indicates that the State failed to meet its burden of proving that the ten-year cleansing period from the previous conviction in Case No. 375-518 had not elapsed at the time of the commission of the instant offense. Therefore, based on the appellate record, we find the trial court erred in using either of these two convictions as a basis for adjudicating defendant a third-felony habitual offender, and defendant’s habitual offender adjudication and sentence should be vacated.

To the extent that the habitual offender record is incomplete and thus a definitive decision as to these two claims raised by defendant on appeal as to his habitual offender adjudication cannot be reviewed, defendant has been prejudiced by the missing evidence, and his habitual offender adjudication and sentence likewise should be vacated.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, defendant argues that his sentence of five years at hard labor as a third-felony habitual offender is unconstitutionally excessive.

However, our disposition of his Assignment of Error No. 3 renders this assignment of error moot.

| ¾While defendant’s original sentence was five years at hard labor, the maximum sentence of imprisonment permitted upon conviction of second degree battery, that sentence was vacated by the trial court. Since we vacate defendant’s sentence as a habitual offender we must remand the matter for resentencing. Should defendant be aggrieved by the sentence he receives on remand he may appeal that sentence, assuming he properly objects to it.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . Although the victim’s name is spelled "Marten” in the bill of information, it is spelled elsewhere in the record, including in an "Authorization to Release Medical Records” she signed, as Annette "Martin.”

      . While defendant was tried for second degree robbery, which encompassed the taking of the victim’s cell phone, conviction for second degree battery did not encompass that taking.

      . When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55; State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . La.C.Cr.P. art. 729.5 states, in pertinent part:
      A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

      . La.C.Cr.P. art. 718 states, in pertinent part:
      Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
      (1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
      (2) are intended for use by the state as evidence at the trial, or....

      . La. R.S. 40:983 was later added by Acts 2003, No. 1051, § 1, as a statute defining and proscribing the creation and operation of a clandestine laboratory for the manufacture of a' controlled dangerous substance.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Roger E. PRICE, et al. v. Roy O. MARTIN, et al.
    No. 10-599.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Rehearing Denied March 30, 2011.

      Raymond L. Brown, Jr., Charles Stovall Weems, III, Gold, Weems, Bruser, Sues & Rundell, A Professional Law Corporation, Alexandria, LA, for Defendant/Appellant, Roy 0. Martin.
    Charles Fenner Gay, Jr., Raymond Peter Ward, Don S. McKinney, Adams & Reese, LLP, New Orleans, LA, for Defendant/Appellant, Beazer East, Inc.
    Stephen Miller Irving, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellee, Roger E. Price, et al.
    Joseph J. McKernan, John H. Smith, McKernan Law Firm, Baton Rouge, LA, for Plaintiff/Appellee, Roger E. Price, et al.
    John Chandler Loupe, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellee, Roger E. Price, et al.
    Richard Edward Sarver, Barrasso, Us-din, Kupperman, Freeman & Sarver, News Orleans, LA, for Defendant/Appellant, Roy 0. Martin.
    Brent R. Austin, Attorney at Law, Chicago, IL, for Defendant/Appellant, Beazer East, Inc.
    Leonard S. Kurfirst, Wildman Harrold Allen & Dixon, Chicago, IL, for Defendant/Appellant, Beazer East, Inc.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

I,The defendants, Roy 0. Martin Lumber Company and Beazer East, Inc., appeal the trial court’s certification of the plaintiffs’ class action. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation has a lengthy and complicated history. The plaintiffs, who reside in Alexandria, Louisiana near the Dura-Wood Treating Company (which was owned by Martin from 1970 to 2000), filed suit urging that Dura-Wood’s creosote-treated railroad tie operation damaged them property due to contaminated soil, sediments, groundwater, and buildings. Beazer owned and operated the facility (under the name Kopper’s Company) from December 1940, until its sale to Martin in May 1970. Martin owned the facility from May 1970 to December 31, 1999, when it sold the facility to Railworks Wood products, Inc. The plaintiffs allege that Martin and Beazer’s environmentally unsound wood-treatment practices have caused a significant amount of hazardous and toxic chemicals to be released into the environment including into the air, soil, and water of the communities where the plaintiffs reside.

For several years, Martin and Beazer have argued that a class certification is improper. First, their Motion to Strike Class Action Allegations was denied as being premature. Next, Martin and Beazer filed a Motion to Strike Demand for Class Relief, which was denied. Thereafter, Martin and Beazer filed a Second 12Motion to Strike Demand for Class Relief. It appears to have been denied. Finally, plaintiffs filed a Memorandum In Support of Class Certification. A class certification hearing was held over two days. The trial court took the matter under advisement for several months due to the voluminous evidence submitted by the parties. Ultimately, it rendered extensive written reasons for judgment and granted certification of the plaintiffs’ class action. Martin and Beazer now appeal.

ISSUES

Martin and Beazer assign as error:

1.The trial court erred as a matter of law in finding that the liability of each defendant, the existence of any injury, and the causation of any injury are issues of damages.
2. The trial court erred as a matter of law in certifying a class when issues exist as to liability that are not subject to common proof.
3. The trial court erred by including both current and former property owners in the class.
4. The trial court erred in finding that the class can be objectively defined and ascertained.
5. The trial court erred in finding that a class action is a superior alternative to individual litigation when the plaintiffs assert a novel claim for clean-up of attic dust and when nearly six years ago approximately five hundred members of the putative class rejected the notion of proceeding as a class action and filed individual claims.

DISCUSSION

The supreme court recently summarized Louisiana law regarding class actions in Brooks v. Union Pacific R.R. Co., 08-2035, pp. 9-11 (La.5/22/09), 13 So.3d 546, 554 (footnote omitted):

A class action is a nontraditional litigation procedure which permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when |sthe question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, 544. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but to all others who are “similarly situated.” Id.
The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. The trial court “must evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, judicial efficiency, and individual fairness.” McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 618 (La.1984). In so doing, “the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings.” Id. (Citing Stevens, v. Board of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144, 152 (La.1975)). “[I]f there is to an error make, it should be in favor and not against the maintenance of the class action, for it is always subject to modification should later developments during the course of the trial so require.” Id. at 620 (citing La. C.C.P. art. 593.1(B)); Esplin v. Hirschi, 402 F.2d 94 (10th Cir.1968); 1 H. Newburg, Class Actions, § 1160(e) (1977).
In reviewing a trial court judgment regarding class certification, factual findings are subject to the manifest error standard, but the trial court’s ultimate decision of whether or not to certify the class is reviewed by the abuse of discretion standard. See Banks v. New York Life Ins. Co., 98-0551 (La.7/2/99), 737 So.2d 1275, 1280 (on rehearing) (reviewing the trial court’s decision to certify the class under the abuse of discretion standard.).... “Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.” Id. at 325 (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 95th Cir.1998). However, whether the district court applied the correct legal standards in determining whether to certify the class is reviewed de novo.

All class actions must meet the five requirements set forth in La.Code Civ.P. art. 591(A). Those requirements are commonly called 1) numerosity, 2) commonality, 3) typicality, 4) adequacy, and 5) class definition. Assuming those 14basic requirements are met, then four types of class action are potentially available. Each type has its own additional requirements which are listed in part (B) of Article 591. In this matter, the plaintiffs seek certification of a 591B(3) action which should be maintained if common issues of law or fact “predominate” over “individual” issues of law or fact. Louisiana Code of Civil Procedure Article 591(B)3 reads:

An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these finding include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
lfi(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justified the costs and burdens of class litigation.

The burden rested with plaintiffs to meet the numerosity, commonality, typicality, adequacy of representation, and objectively definable class requirements of La. Code Civ.P. art. 591(A) as well as meeting the predominance and superiority requirements of La.Code Civ.P. art. 591(B)(3). See Duhé v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-637 (La.4/27/01), 791 So.2d 637.

ASSIGNMENTS ONE AND TWO

The crux of defendants argument is that the trial court erred in certifying a class by applying incorrect legal standards pertaining to the “common cause” requirement. Specifically, they argue that the trial court erroneously found that “many conceded individual issues were ones for damages, not liability.” Defendants assert that the plaintiffs must prove that defendants breached the standard of care by permitting some kind of damaging emission and that plaintiffs will be unable to meet this burden because the facility has had three owners who have engaged in varying operations over a 66-year period. Defendants further argue that, at various times, different chemicals were emitted for different durations and that different legal standards applied to plant activities over the years.

Defendants also argue that the trial court erred as a matter of law in characterizing individual issues as affirmative defenses or damages when they are actually issues of causation, i.e., (1) a causal connection between specific emissions and damage to property and, (2) If PAHs (polycyclic aromatic hydrocarbons) or dioxins exist on a property, whether a facility emission was the source or one of the | ¿multiple other source of PAHs or dioxins in the Alexandria area was the source. Pertaining to the latter claim, Defendants argue that if potential alternative sources exist, a class cannot be certified.

Finally, Defendants argue that if the jury finds that the facility is shown to be the source of an emission on a property, it must then decide who operated the facility at the time of the emission. Defendants argue that if the cause is ascribed to only one of the defendants, then there is no injury or causation as to the other two and that an apportionment issue such as this alone precludes class certification.

The trial court, in its written reasons, stated:

In the case at bar, plaintiffs argue that the following assertions support the predominance requirement: The facts of each chemical release are a common issue to the claims of all class members; the law governing the responsibility of parties for remediation and/or testing is common; the applicable law related to the claim of diminution of property value is common to all property-owner class members; and that the extent of contamination and the issue of liability predominates over any questions important to only individual members of the class.
Defendants, however, argue that “the only proposed factual finding — whether the facility caused ‘offsite migration of several known human carcinogens’ — is not a predominating, common question”. Defendants explain that the issue of whether the Facility was the source of the offsite migration of carcinogens would not predominate over the individual issues, mainly individual claims for damages, and that this would result in later mini-trials. Further, defendants argue that the plaintiffs have failed to prove the requirements necessary to maintain a contamination claim: [1] that emissions from particular defendants landed on their property, and [2] were the proximate cause of some quantifiable and actionable injury to their property. While these requirements reflect plaintiffs’ burden of proof at a trial on the merits, they do not accurately reflect plaintiffs’ burden of proof for the purposes of class certification. Plaintiffs have presented sufficient evidence, including sampling data taken and evaluated by plaintiffs’ experts that defendants may have improperly handled and/or disposed of hazardous chemicals which may have resulted in contamination of plaintiffs’ property. It should be noted, however, that defendants contest the validity of plaintiffs’ sampling methodology. Dr. Kester opines that using attic |7dust for risk assessment at all is not an appropriate method of measuring for PAHs and dioxins since there are so few studies regarding attic dust. Also, Dr. Uhler, one of defendants’ experts, opines that it was unjustified for plaintiffs’ experts to apply soil screening levels to the attic dust samples they procured. However, Dr. Michael Crouch, one of plaintiffs’ expert witnesses, testified that sampling attic dust is an accepted way of detecting the presence of contaminants in a structure since “attic dust is a representation over time of what a structure was exposed to.” Furthermore, Dr. Crouch testified that the use of soil as a screening standard for the attic dust was appropriate and had been used in previous cases. Not surprisingly, this case contains conflicting expert opinions as to the validity of attic dust sampling and the appropriateness of applying soil screening levels to these attic dust samples. In a similar case, the Fourth Circuit was presented with the issue of whether the trial court was erroneous in relying on the testimony of one of plaintiffs’ experts, Dr. Ze-gel. Marshall v. Air Liquide-Big Three, Inc., 08-0668 (La.App. 4 Cir. 12/17/08; 2 So.3d 541, 548. In this case, property owners neighboring a manufacturing plant brought suit against a manufacturing plant, alleging that the plant was responsible for the release of carbide lime dust. Id. at 544. At the hearing to determine whether class certification was appropriate, defendants argued that Dr. Zegel’s air dispersion model was flawed because it was based on faulty calculations, particularly in that Dr. Zegel lacked accurate information about the plant’s hauling process and meteorological data necessary to calculate wind directions and speed. Id. at 548. Plaintiffs argued that Dr. Ze-gel’s air model was based on a well-known EPA air modeling tool, which accounted for meteorological variations.
Id. at 549. In addressing defendants’ concerns, the appellate court stated the following:
Considering the standard of review for facts, and after reading the testimony given at the hearing, we cannot say that the trial court was manifestly erroneous in accepting Dr. Zegel’s opinions, and, therefore we find that the trial court did not abuse its discretion in considering those opinions when it certified the class. Id.
The appellate court also noted that the only issue to be considered by the trial court and appellate court during a class action hearing is “whether the case at bar is one in which the procedural device is appropriate,” not whether “the plaintiffs have stated a cause of action or the likelihood that they will prevail on the merits.” Id. at 546. In the case at bar, the Court finds that plaintiffs’ experts sampling and conclusion drawn from the sampling, in connection with the deposition testimony of plaintiff experts taken as a whole, provides a sufficient basis for class certification. Therefore, the Court rules that a class action in this case |sis procedurally appropriate.

The trial court considered the conflicting expert testimony regarding the sampling methodology (attic dust and soil testing) used by the plaintiffs. The trial court found that the facts set forth by plaintiffs’ experts were sufficient to certify the class, noting that success on the merits was the not the issue at this juncture. We cannot find any manifest error in its finding. This finding does not ensure success on the merits, but merely indicates that the class action procedural device is appropriate.

Although we recognize that the lengthy period of time over which plaintiffs claim the emissions occurred and the fact that succeeding owners of the plant complicates matters, we do not find that these facts compel a finding that class certification is inappropriate. The trial court properly found that plaintiffs met the common cause requirement in showing that one factual issue is common to the potential class — whether defendants’ off-site emissions caused property damage to the residences in the area surrounding the plant. This issue will not be resolved by examining individual residences in the area. Rather, the elevated toxin levels must be shown on a area-wide basis as emanating from the defendants’ facility.

We find this case to be factually similar to Clark v. Trus Joist MacMillian, 02-676 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, writ denied, 03-275 (La.4/21/03), 841 So.2d 793, in which a group of residents sought class certification against a wood-processing plant for polluting their property and causing them personal injury. There we stated:

[T]he common issue for all plaintiffs is whether the Trus Joist plant during the time period in question contained toxic chemicals of such a level to cause harm to plaintiff and whether plaintiffs were in fact harmed. We find this issue decided for one class member will be decided for all.

\<Jd. at 461. Similarly, the common issue for all plaintiffs herein is whether the plant in question during the time period specified emitted PAHs of such a kind and quantity as to cause harm to plaintiffs and whether plaintiffs were in fact harmed.

Defendants heavily rely on Brooks, 13 So.3d 546, for the proposition that the plaintiffs will be unable to prove common causation. In Brooks, flooding followed a heavy rainstorm. The plaintiffs attempted to certify a class based on defective storm water drainage structures in three different drainage basins where multiple defendants were responsible for different portions of the drainage structures. The supreme court stated, “The trial court’s factual finding of common causation was manifestly erroneous as all experts testified that the predominate cause of flooding would vary depending on whether an individual lived in the Northern, Southern or Eastern basin.” Id. at 559. In Brooks the supreme court clearly stated that it granted the writ application to “determine the proper standards for analyzing class certification.” Id. at 548. Regarding common causation, the supreme court stated:

In requiring common causation in a mass tort case, we point out that this does not mean that the amount or extent of damages must be common to all class members. As we have stated, “the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” Bartlett v. Browning-Ferns Industries Chemical Services, Inc., 99-0494 (La.1 1/12/99), 759 So.2d 755, 756. However, in order to meet the common case requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.

Id. at 558-559.

In Brooks the only common event was the rainfall, which was not attributable to defendants. In this case, however, the common event is the alleged off-site emission of toxic levels of PAHs attributable to a singular facility. If class | ^certification required absolute conformity among the lifestyles of every potential class member (i.e. the use of burn barrels, smokers, and barbeque pits; the size of attics; etc.) then no class would ever be certified. The common cause of off-site emissions of toxic substances (PAHs) from the plant still exists regardless of whether there are alternate sources of PAHs existing in the environment. The trial court found that alternate PAH sources and varying levels of PAHs in different homes figure into an analysis of damage; not causation or liability. Based on the record before us, we cannot say that finding is manifestly wrong, and we decline to find it lies outside the trial court’s considerable discretion. Accordingly, we find no legal error in the trial court’s finding that class certification was proper based on the common cause requirement.

ASSIGNMENTS THREE AND FOUR

In these assignments of error defendants argue that the trial court legally erred by including both past and present property owners; that the trial court’s proposed class is overboard; and, that it is not ascertainable, in violation of the requirements of La.Code Civ.P. art. 591(A)(5). The trial court set forth the class definition as follows:

[T]he class definition shall be limited to property owners who owned the property at the time the damage occurred. As for the time period which will apply to this class definition, the evidence presented by plaintiffs’ shows that the defendants began using creosote and pentachlorophenol and discarding the remnant waste waters into the Chatlin Lake Canal approximately in 1944. Further, the evidence reflects that hazardous activities such as this, including the potential failure to remediate damage caused by the failure to properly dispose of hazardous chemicals, has continued throughout the facility’s operation as recently as present day. Therefore, the class definition shall consist of property owners who owned property within the class area at the time the property was damaged during the years of 1944 through present.

As noted above, the trial court defined the class as consisting of |, /‘property owners who owned property within the class area at the time the property was damaged during the years of 1944 through present.” We agree with plaintiffs that this class is easily ascertainable from the records of property owners located in the Rapides Parish courthouse.

However, defendants argue that if past and present owners of the same piece of property are class members they will have conflicting interests which will compound the individual issues already existing. We agree with defendants that inclusion of past and present owners of a piece of property within the 1.5 mile radius around the facility presents conflicts of interest among the class members and class counsel and presents issues regarding prescription. We are unsure how any former owner, having sold his or her property without regard to or knowledge of the potential contamination, could feasibly claim harm.

Nevertheless, as we found in Duhé, 779 So.2d at 1080, “because of a trial court’s authority to redefine the class ... appellate courts often allow certification despite a finding that the definition is inadequate for one reason or another.” The trial court’s flexibility to define and redefine the class appears in the very language of La.Code Civ.P. art. 591(A)(5): “The class is or may be defined ...” (emphasis added). Thus, while we concede that the defendants have raised fair questions about this class definition, we will neither redefine it at this time, nor require the trial court, by way of remand, to do so. Rather, at this juncture, we will rely on the authority and discretion vested in the trial court to liberally make any and all necessary amendments as this matter progresses. Accordingly these assignments of error are without merit.

J^ISSUE FIVE

In this assignment of error, defendants rely on Ford, 703 So.2d 542, to argue that attic dust contamination is a novel and untested theory of law and that no regulatory standards for attic dust exist, thus, class certification should be denied. They further argue that a class action is not the superior method of adjudication when members of a putative class declined to proceed as a class action and filed individual claims.

The facts of this case are distinguishable from those in Ford. In Ford, the plaintiffs theorized that a “synergistic accumulation” of chemical releases from four different chemical plants injured them. The supreme court found that “this case is inappropriate for certification because the ‘synergy’ theory is a novel and untested theory of law, making it impossible for plaintiffs to prove that the class action procedure is appropriate.” Id. at 550. The court went on to find that:

[I]t is unclear whether plaintiffs can prove that the emissions of the four defendant companies (or the two remaining defendant companies) indeed do combine “synergistically” to cause damage to their surrounding neighbors. Thus, it is unclear what common issues of law or fact will exist in such a case and thus it is unproven whether trying the case as a class action would be superior to trying the case in several individual or consolidated actions.

Id. at 551. Plaintiffs here advance no such novel theory. Toxic chemical emissions from plant activity, whether long-term or from a single accident, have been the subject of numerous class action claims. Defendants further argue that attic dust testing is not subject to regulatory testing. Plaintiffs’ expert testified to the validity of attic dust sampling and further testified that the EPA has used attic dust testing. Again, the factual findings of the trial court will not be disturbed absent manifest error. It found the plaintiffs’ experts credible regarding attic dust testing and 11ssampling for purposes of certifying the class. Defendants will have every opportunity at trial to convince the trier of fact that plaintiffs’ methodology is invalid or that plaintiffs’ expert is otherwise lacking in credibility.

Finally, defendants argue that the trial court failed to consider that individual claims are the superior method of adjudication. Defendants note that in Paige v. Dura-Wood, LLC (Docket No. 214,913, pending in the Ninth Judicial District Court) over five hundred individual plaintiffs are pursuing these the same Defendants for personal injuries and property damages allegedly caused by defendants’ toxic facility emissions. While it is true that La.Code Civ.P. art. 591(B)(3) requires the trial court to consider litigation already pending, the article further requires consideration of various factors such as the ability of the class members to pursue claims on their own. As the supreme court pointed out in McCastle v. Rollins Environmental Services of LA., Inc., 456 So.2d 612, 619 (La.1984):

The legislative policy underlying these causes of action operates to deter landowners’ activities which cause injury and unreasonable inconvenience to others, to cause those who have profited by the activities to disgorge unjust enrichment gained thereby, and to compensate victims injured or unreasonably inconvenienced. If the claims are not asserted in a class action it is evident that many will not be pursued, that the court may not see the true significance of claims or liability, and that the court will therefore be unable to give full realization to the substantive legislative policy.

In this case the class potentially consists of approximately 4,700 landowners (many in low-income areas) many of whom undoubtedly would not pursue the claims on their own. Accordingly, we cannot say that the trial court abused its discretion in certifying the class.

CONCLUSION

The trial court applied the correct legal standard in deciding to certify j 14this class. Its written reasons clearly establish thorough consideration of the factors set forth in La.Code Civ.P. art. 591. We find no manifest errors with regard to the trial court’s factual findings. We, therefore, decline to perform a de novo review.

We are left, then, to consider whether the trial court abused is discretion in ultimately certifying this class. The defendants have properly pointed out a number of potential problems with the class as it has been defined. First, the extremely long period of time over which the plaintiffs may claim harm is unprecedented. Second, while there is only one plant at issue, there have been multiple owners of that plant from which the plaintiffs seek recovery. Third, the fact that the trial court has included both past and current land owners will likely result in conflicts among the very same class members whose interest should be aligned.

The trial court’s decisions regarding definition of the class and its overall decision to certify the class are not chiseled in stone. On the contrary, the trial court can, at any time before a decision on the merits of the common issues, alter the class, redefine the class, or even recall the class certification all together. Our supreme court has found it wise to maintain a class certification even if later developments demonstrate that such maintenance was error. See Brooks, 13 So.3d 546.

The trial court’s judgment certifying the class is hereby affirmed. All costs of this appeal are assessed against the defendants-appellants, Roy 0. Martin Lumber Company and Beazer East, Inc.

AFFIRMED.

      . The suit was originally filed in 2003 in Ascension Parish but was transferred to the Ninth Judicial District Court in Rapides Parish pursuant to a judgment rendered in April 2005, granting Martin and Beazer’s exception of improper venue. Plaintiffs “Amending and Superseding Petition” was filed in August 2007. The original suit is not in the record before us.

      . Railworks Wood Products, Inc. has not been sued.

      . Article 591(A) provides:
      One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
      (1) The class is so numerous that joinder of all members is impracticable.
      (2) There are questions of law or fact common to the class.
      (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
      (4) The representative parties will fairly and adequately protect the interest of the class.
      (5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.