text:
    STATE of Louisiana v. Denord M. KING.
    No. 11-KA-767.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Bou-dreaux, Gail D. Schlosser, Scott U. Schle-gel, Myles D. Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Denord M. King, Angola, LA, Defendant in Proper Person.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2On October 14, 2010, the Jefferson Parish Grand Jury indicted defendant, Denord M. King, for second degree murder, in violation of LSA-R.S. 14:30.1, and obstruction of justice by tampering with evidence, in violation of LSA-R.S. 14:130.1. At the arraignment, defendant pled not guilty.

Following the resolution of various pretrial motions, defendant proceeded to trial before a twelve-person jury on March 29 and 30, 2011. After considering the evidence presented, the jury found defendant guilty as charged on both counts. On April 7, 2011, the trial court denied defendant’s motion for new trial and thereafter sentenced him to life imprisonment without benefit of parole, probation, or suspension on the second degree murder conviction and to twenty years in the ^Department of Corrections on the obstruction of justice conviction, to run concurrently. Defendant now appeals.

FACTS

On June 16, 2010, Denord King shot and killed Brian Williams. The facts surrounding the incident are as follows:

In June of 2010, Fallon Madison shared an apartment with her boyfriend, Brian Williams, in the Chateau Ames apartment complex located at 1521 Ames Boulevard in Jefferson Parish. On the afternoon of June 15, 2010, two black males, one approximately twenty-four years old and the other approximately seventeen years old, came to the apartment and attempted to purchase a firearm from Williams. The younger individual apparently tried to run with the gun, and Williams tried to tackle him to get the gun back. After this encounter, the two men left. However, Madison later observed the teenager pacing back and forth in the parking lot and also saw defendant, who was standing outside one of the buildings, talking to the teenager.

On June 16, 2010, the day of the shooting, Williams was standing outside his apartment with his cousin, Brandon Dillard, and several other people. Shaquille Smith approached and told Williams that “they was coming to get you.” Meanwhile, the teenager that Williams got into a fight with the previous day w;as again outside the apartment complex walking back and forth. Growing agitated, Williams walked into the middle of the parking lot and began firing at this teenager who was later identified as Johnelle Walker. Walker ran home. Smith quickly separated from Williams and Dillard who started walking towards a friend’s house.

^According to Dillard, as they reached the middle of the parking lot, defendant came from the side and started shooting. Dillard panicked and ran, while Williams started shooting at defendant. Williams was struck during the gunfire and died a few minutes later.

The police arrived at the scene, secured it, and began their investigation. Through witness statements and photographic identifications, the police developed defendant as a suspect and obtained an arrest warrant for him. Defendant turned himself into the police the next day. After being advised of his rights, defendant gave a statement to police in which he claimed that he started shooting at Williams because he saw Williams coming at him with a gun.

In addition to giving a statement, defendant also testified at trial. According to defendant, on the day of the shooting, he was riding a bike to the store to get cigarettes when he heard gunshots. As he looked to see where the shots were coming from, he fell off the bike and saw Williams coming at him with a firearm in his hand. Defendant explained that at the time of the shooting he was recovering from previous gunshot injuries, that he could barely walk, and that he still had a bad limp. Defendant thought that Williams could have been the person who previously shot him and that he was coming back to “finish what he started.” Defendant testified, “I grabbed my gun and went to shooting in my defense.” Defendant admitted that he emptied the entire thirteen-round magazine in his .40 caliber semi-automatic handgun, pulling the trigger each time. According to defendant, he never intended to kill Williams; he stated that he fired so many shots because he moved slowly due to his previous gunshot injuries and he was only trying to get away. Defendant observed the victim trip, and get back up. Just before he departed, defendant observed that Williams was still moving behind a vehicle; therefore, he did not think that Williams was dead.

| ¿Defendant further testified that upon leaving, he borrowed a friend’s car. As he was driving, defendant decided that he wanted to change his lifestyle. In an effort to facilitate this change, he threw the gun out the car window while on the Huey P. Long Bridge. Later that night, defendant heard that Williams had died and that he was wanted by the police in connection with Williams’ murder. At that point, defendant turned himself into police.

ASSIGNMENT OF ERROR NUMBER ONE

In this assigned error, defendant argues that the trial court erred in denying his motion for new trial because the evidence was insufficient to support the jury’s verdict. Defendant specifically argues that the evidence was insufficient to prove beyond a reasonable doubt that he acted with the requisite intent and that he did not act in self-defense. Defendant also contends that the State’s evidence proved manslaughter at best.

The constitutional standard for testing the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Patterson, 10-415 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 147, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037.

In order to support a conviction for second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or |fifailure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Patterson, 63 So.3d at 147.

The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with the specific intent to kill. State v. Gonzalez, 07-449 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08), 992 So.2d 949. Moreover, specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Knight, 09-359 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 317, writ denied, 10-2444 (La.10/21/11), 73 So.3d 376. Specific intent may also be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Graves, 99-113 (La.App. 5 Cir. 8/31/99), 740 So.2d 814, 816, writ denied, 99-3013 (La.3/31/00), 759 So.2d 68. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Patterson, 63 So.3d at 148.

We find that, given the evidence produced at trial, the jury could have reasonably inferred that defendant had specific intent to kill or inflict great bodily harm. Several witnesses testified at trial that they saw defendant shoot at the 'victim. According to Brandon Dillard, after Williams fired shots at Johnelle Walker, he and Williams started walking towards a friend’s house. As they reached the middle of the parking lot, defendant came from the side and started shooting at Williams. In addition, Wythesia Dorsey testified that on June 16, 2010, she was in her Chateau Ames apartment lying down when she heard gunshots. She |7went to the window and observed a black male, whom she identified as defendant, running across the parking lot, with his arm extended behind him, firing shots.

Bianca Bridgewater, a resident of the apartment complex who was outside at the time of the incident, also testified at trial. Bridgewater stated that before any shots were fired, she saw defendant, whom she knew from high school, riding his bike. She heard about three gunshots and then saw defendant fall off his bike. According to Bridgewater, defendant got up and walked behind one of the apartment buildings. He emerged a few minutes later, talked to a young man, and then pulled out a gun and started shooting at a person in the parking lot.

In addition to this eyewitness testimony, the State also presented the testimony of Shaquille Smith. Although he did not witness the actual shooting, he testified that about two or three minutes after Williams shot at the teenager, defendant, along with some other individuals, approached him to find out what was going on. Smith testified that all these individuals, including defendant, had guns in their hands, and he did not. Smith left the area, and about two or three minutes later, he heard shots being fired. Smith returned to see what had happened and saw Williams lying on the stairs. Further, there was evidence produced at trial that defendant fired about thirteen shots at Williams. By defendant’s own admission, he emptied his gun. Thus, viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the jury could have reasonably concluded that defendant had specific intent to kill or inflict great bodily harm upon the victim.

On appeal, defendant does not deny that he shot the victim, but insists he acted in self-defense after the victim used deadly force against him.

When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in |sself-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). The fact that an offender’s conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. LSA-R.S. 14:18.

According to LSA-R.S. 14:20, a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger” or “[w]hen committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.”

A person who is the aggressor or who brings on a difficulty cannot claim self-defense, unless he withdraws from the conflict in good faith. LSA-R.S. 14:21. In addition, while there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Theriot, 07-71 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1020, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715.

The determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. State v. Theriot, 963 So.2d at 1020.

|nIn the instant case, the State adequately negated the defense of justification beyond a reasonable doubt. The evidence at trial established that Williams was the aggressor in the prior altercation with Walker. However, after Walker ran away, Williams ceased fire, and he and Brandon Dillard started walking to a friend’s house. According to the testimony of Brandon Dillard and Bianca Bridgewater, defendant fired first at the victim. Bridgewater specifically testified that on the day of the shooting, she saw defendant riding on a bike. Bridgewater heard three gunshots and then saw defendant fall off the bike, get up, and go behind a building. Bridge-water further testified that about two to five minutes later, defendant emerged from behind the building, talked to a young man, pulled out a gun, and started shooting at the victim who was in the parking lot. Moreover, at trial, defendant testified that he did not know if Williams ever shot at him, and in his statement to police, defendant admitted that Williams never fired at him after he opened fire. The evidence at trial further established that after the incident, defendant fled the scene and disposed of the weapon.

Dr. Karen Ross, an expert in forensic pathology, testified that she performed an autopsy on the victim. According to Dr. Ross, Williams died from a gunshot wound to the trunk which entered the lower left side of his back. She explained that the bullet went from left to right, from back to front, and slightly upward. Due to the upward path of the bullet, Dr. Ross believed that Williams was somewhat bent over at the trunk when he received the injury.

Defendant was the only witness who testified that the victim shot first. According to defendant, he was riding a bike when he heard some gunshots. As he looked to see where the shots were coming from, he fell off his bike and saw Williams coming at him with a gun. Not knowing who this person was, defendant thought he may have been the one who shot him eleven months earlier and that he |inwas trying to “finish what he started.” Defendant explained, “I grabbed my gun and went to shooting in my defense.”

The jury heard this conflicting testimony at trial and obviously gave more credit to the version of events portrayed by the State witnesses. Based on the evidence presented by the State, we find that any rational trier of fact could have concluded beyond a reasonable doubt that defendant did not act in self-defense.

Lastly, defendant contends that the evidence at best supported a verdict of manslaughter. Manslaughter is a homicide that would be either first or second degree murder, except that the offense was committed in “sudden passion” or “heat of blood” caused by provocation sufficient to deprive an average person of his self-control and cool reflection. LSA-R.S. 14:31 A(1). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors that may reduce the grade of the offense. State v. Dobbins, 05-342 (La.App. 5 Cir. 12/27/05), 920 So.2d 278, 284.

In order to be entitled to the lesser verdict of manslaughter, the defendant is required to prove the mitigatory factors by a preponderance of the evidence. Provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person, one with ordinary self-control. State v. Deal, 00-434 (La.11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 523.

The jury clearly found that defendant failed to meet his burden of proof that he acted in “sudden passion” or “heat of blood.” The evidence supports the jury’s | nconclusion. As noted previously, the testimony at trial indicated that Williams ceased fire and retreated after his initial altercation with Walker. Several minutes later, defendant emerged from the back of a building and started shooting at Williams who was in the parking lot walking towards a friend’s house. Defendant, by his own admission, fired approximately thirteen shots. Further, in his statement, he said that Williams did not fire back after he started shooting at him.

Considering the circumstances of this case, defendant’s actions, and the extent and severity of the victim’s injuries, we find that the evidence was constitutionally sufficient to support the jury’s finding that defendant had the specific intent to kill or inflict great bodily harm on the victim and that defendant did not act in self-defense. Accordingly, the arguments raised by defendant relating to the sufficiency of the evidence lack merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant next argues that the trial court erred in denying his motion for new trial based on its failure to remove a sleeping juror and replace that juror with an alternate prior to deliberations.

Before the jury retired to deliberate, defense counsel requested that the trial court use the alternate juror to replace a juror who was sleeping throughout the instructions. The State agreed that the juror was certainly falling asleep, but he did not know whether the juror’s eyes were just closed or whether the juror was “out cold.” The trial court denied defense counsel’s request noting that it watched the juror closely because her eyes were closed during the trial, but he did not believe she was sleeping and he felt that she was paying attention.

LSA-C.Cr.P. art. 789(A) provides, in pertinent part: “The court may direct that not more than six jurors in addition to the regular panel be called and | ^impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.”

In State v. Cass, 356 So.2d 396 (La.1977), the Louisiana Supreme Court addressed the issue of a sleeping juror. During the first day of trial, the judge noticed that one of the jurors appeared to be asleep. The judge observed that the juror had his eyes closed and that his head was nodding. After watching him for two to four minutes, the trial judge, believing that the juror was ill, summarily ordered the removal of the juror and replaced him with an alternate. The defendant objected to the removal of the juror and asked for a mistrial, which the trial court denied. The Louisiana Supreme Court found that it was reversible error for the trial judge to summarily remove a juror under those circumstances. In so ruling, the court stated as follows:

[A]pplying Art. 789 C.Cr.P. we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the defendant’s inability to perform on this account, we would be presented with a substantially different question for review.

In State v. Johnson, 463 So.2d 620 (La.App. 1 Cir.1984), on remand, 486 So.2d 787 (La.App. 1 Cir.1986), defendant argued that the trial court erred in refusing to excuse two jurors who appeared to be sleeping during the reading of the transcript of the victim’s prior testimony. The appellate court found no error in the trial court’s refusal to remove the jurors. The court noted that the trial judge stated that he noticed two women jurors had their eyes closed during the reading of the victim’s cross-examination from a prior trial. He noted, however, that he watched the jurors closely and did not believe that either of these jurors was asleep. | ^Further, defense counsel neither requested an opportunity to determine nor made any showing that the jurors were actually asleep or unable to perform.

In the instant case, the trial court noted that he was watching the juror closely and it appeared that “she was paying attention.” Moreover, there is no indication that the juror was sleeping through a substantial part of the trial. Defendant only made an objection during the reading of the jury instructions, which were sent back to the jurors during deliberations and could have been read by the juror independently. Moreover, defendant did not request a hearing to determine whether the juror was actually asleep or unable to perform her function. Accordingly, we find no error in the trial court’s refusal to remove the juror under the circumstances and in thereafter denying defendant’s motion for new trial.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

By this assigned error, defendant contends that he was unduly prejudiced by the trial court’s failure to answer a jury note which inquired into the difference between the verdicts. The record does not support this argument.

In response to the jury’s inquiry, the trial court sent the written jury instructions into the deliberation room, whereby the jury could review the potential verdicts. Both the State and defense counsel agreed that sending the jury instructions back to the jury was a proper response to the jury’s inquiry. Accordingly, as defense counsel agreed to the handling of the matter, this assigned error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

On appeal, defendant next contends that the trial court erred in refusing to inform the jury of the sentencing ranges for second degree murder, manslaughter, and negligent homicide.

14Pursuant to LSA-C.O.P. art. 802, the judge is required to charge the jury as to the law applicable to the case. This article specifies the charges which the trial court shall make to the jury, and it does not require the reading of the penalty provision. Generally, the jury need not be told of the applicable penalty on conviction because the imposition of sentence is solely within the province of the judge and is not a function of the jury, which is concerned with the guilt or innocence of the accused. State v. Prater, 337 So.2d 1107 (La.1976); State v. Albert, 430 So.2d 1279 (La.App. 1 Cir.1983), writ denied, 433 So.2d 711 (La.1983). However, when the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury. State v. Washington, 367 So.2d 4 (La.1978).

In the instant case, the trial judge advised the jury of the mandatory penalty for second degree murder. However, he was under no obligation to instruct the jury on the penalty ranges for manslaughter or negligent homicide. Accordingly, this assigned error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

In this assigned error, defendant argues that the prosecution purposefully misled the defense when it filed its notice of potentially exculpatory evidence.

We first note that defendant did not raise this issue in the trial court, and therefore, it was not properly preserved for appellate review. See LSA-C.Cr.P. art. 841. Moreover, defendant’s argument has no merit.

On March 16, 2011, the State filed a notice of potentially exculpatory evidence. It gave notice that “Fallon Madison gave a statement to members of the District Attorney’s office that could be considered exculpatory. Specifically, Ms. Madison stated that when she arrived at the scene shortly after the murder, Brian | t ñWilliam’s cousin, Brandon, asked her what happened. Brandon Dillard told the police that he witnesses [sic] the murder. Ms. Madison also stated that she saw the defendant and the unidentified 17 year-old together the day before the murder, at the time the 17 year-old was taunting the victim.” Defendant appears to be arguing that this notice was misleading because Fallon Madison never made the statements to the police that are alleged in the notice. The notice clearly reflects that the statement was given to a member of the District Attorney’s Office, not the police; therefore, the information in the notice would not necessarily be contained in Madison’s statement to the police.

Accordingly, this argument likewise lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER SIX

In his final pro se assigned error, defendant contends that the State purposely failed to inform the jury that Shaquille Smith had reached a “deal” with the district attorney to testify.

This alleged error was not raised by defendant in the trial court and is being presented for the first time on appeal. Accordingly, this issue was not properly preserved for appellate review. LSA-C.Cr.P. art. 841.

Moreover, there is no indication from the record before this Court that there was any “deal” between Shaquille Smith and the district attorney. The record shows that on March 28, 2011, the State filed a motion to compel Shaquille Smith’s testimony. In the motion, the State asserted that “no agreements have been made between the State of Louisiana and Shaquille Smith regarding the disposition of any criminal charges or investigations.” It further provided “no testimony or other information compelled under this order, nor any information directly or indirectly derived from such testimony or other information, will be used against Shaq-uille Smith in any criminal case, except a prosecution for perjury, giving a |1fifalse statement or otherwise failing to comply with the order.” On March 29, 2011, the trial court signed an order granting the State’s motion to compel the testimony of Shaquille Smith. At trial, the jury was not made aware of any “deal,” but was made aware that Shaquille Smith was there because of a material witness warrant. Moreover, we note that defense counsel, at no time, tried to question Shaquille Smith regarding any deal he had worked out with the State. For these reasons, this assigned error is without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review of the record reveals a discrepancy between the transcript and commitment/minute entry which requires correction. The transcript reflects that the trial court imposed the sentences on the two counts concurrently; however, the commitment/minute entry indicates that the sentence on the second degree murder count was imposed consecutively and the sentence on the obstruction of justice count was imposed concurrently. Generally, when there is a discrepancy between the transcript and the commitment, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983).

To ensure an accurate record, we remand the matter for correction of the commitment/minute entry to bring it into conformity with the sentencing transcript. On remand, we direct the district court to make the entry in the commitment/minute entry reflecting this change and direct the clerk of court to transmit the amended commitment/minute entry to the officer in charge of the institution to which the defendant has been sentenced as well as to the Louisiana [^Department of Public Safety and Corrections General Counsel. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

For the reasons set forth herein, we hereby affirm defendant’s convictions and sentences and remand the matter to the trial court for correction of the commit-meni/minute entry.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT/MINUTE ENTRY

      . Defendant's appointed appellate counsel filed an appeal brief addressing two issues (Assignments of Error Numbers 1 and 2). Defendant then filed a pro se brief raising four additional alleged errors (Assignments of Error Numbers 3, 4, 5, and 6).

      . Shaquille Smith is referred to as "Shorty” by witness Brandon Dillard.

      . At trial, Johnelle Walker denied that he was in an argument with Williams the day prior to the shooting and further denied that he tried stealing a gun from him.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Paul Thomas OLSEN v. Lynn Cooper OLSEN, Wife of Paul Thomas Olsen.
    No. 11-CA-1001.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 28, 2012.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Jared M. Newchurch, Attorneys at Law, Gretna, LA, for Appel-lee, Paul Thomas Olsen.
    Raymond A. Osborn, Jr., Attorney at Law, Harvey, LA, for Appellant, Lynn C. Olsen.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, Lynn Olsen challenges the trial court’s denial of her exception of res judicata and the grant of her ex-husband’s Motion to Terminate Periodic Spousal Support. For the following reasons, this appeal is dismissed.

First, a judgment overruling the peremptory exception of res judicata is interlocutory and, as such, is not appealable. Tugler v. James Machine Works, Inc., 41,704 (La.App. 2 Cir. 1/24/07), 948 So.2d 1157. Moreover, La. C.C.P. art. 1915 does not authorize a trial court to designate a judgment denying an exception as final. Laird v. Laird, 46,459 (La.App. 2 Cir. 6/22/11), 69 So.3d 1173, 1179-1180.

Second, the record does not contain a written judgment on Mr. Olsen’s Motion to Terminate Periodic Spousal Support. La. C.C.P. art. 1911 prohibits the appeal of a judgment that has not been signed by the trial judge. As there is no signed judgment on the motion in the appellate record, the ruling on the motion to terminate periodic spousal support is not ripe for appeal.

Based on the foregoing, this appeal is dismissed. This does not preclude the parties from perfecting an appeal from a final judgment on this matter in the future.

APPEAL DISMISSED.


author: GENOVESE, Judge. PICKETT, J.,

text:
    STATE of Louisiana v. Michael Wayne BELTON.
    No. 11-948.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Michael Wayne Belton.
    Michael Wayne Belton, In Proper Person, Natchitoches, LA, Defendant/Appellant.
    Van H. Kyzar, District Attorney for the Tenth Judicial District, R. Stuart Wright, Assistant District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

I,Defendant, Michael Wayne Belton, was charged by bill of information with simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. On March 22, 2011, Defendant pled guilty as charged. As part of his plea agreement, Defendant agreed to pay a $500.00 fine plus costs, $500.00 to the Public Defender’s Office, and $150.00 to the crime lab, all within six months of his release from prison; he also agreed to serve one year of his sentence without benefit of parole, probation, or suspension of sentence as statutorily mandated. Additionally, although Defendant waived his right to seek review of his conviction, he still could seek review of his sentence. In accordance with the plea agreement, the State agreed to not file a habitual offender bill against Defendant.

Defendant was sentenced on April 20, 2011, to serve twelve years at hard labor, without benefit of parole, probation, or suspension of sentence. On August 24, 2011, Defendant’s sentence was amended to reflect that only one year of his sentence was to be served without benefit of parole, probation, or suspension of sentence. He was also given credit for time served.

Defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging there are no non-frivolous issues in this matter. Defendant has filed a pro se brief, alleging ineffective assistance of counsel.

FACTS

On or about August 30, 2010, through September 14, 2010, Defendant committed simple burglary of an inhabited dwelling, a residence belonging to Sheena Hall.

TERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are three errors patent concerning Defendant’s sentence that must be addressed.

Defendant pled guilty to simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. For this offense, Defendant faced a hard labor sentence of not less than one year without benefit of parole, probation, or suspension of sentence, nor more than twelve years.

At the close of the guilty plea proceeding, the court imposed the “money portion” of Defendant’s sentence as follows:

You will be sentenced to pay ... you are sentenced to pay the following to the Sheriff of Natchitoches Parish within six (6) months of your release from prison[,] in default of which serve an additional six (6) months in prison ... [pay a] five hundred dollar[] ($500) fine and costs, [pay] five hundred dollars ($500) for the Public Defender’s Office, [and pay] one hundred fifty [dollars] ($150) for the Crime Lab.

In State v. Moore, 93-1632, p. 3 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, 563, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858, this court stated: “An illegal sentence is one not ‘authorized or directed by law.’ State v. Johnson, 220 La. 64, 55 So.2d 782 (1951).”

Initially, we note La.R.S. 14:62.2 does not authorize imposition of a fine. Accordingly, we find the imposition of a $500.00 fine and costs for Defendant’s conviction of simple burglary of an inhabited dwelling was illegal. See State ex rel. Culbertson v. Maggio, 468 So.2d 1194 (La.1985). Additionally, for the reasons hereinafter set forth, we find the provision of Defendant’s sentence requiring payment to the Public Defender’s Office illegal as well.

In State v. Lazado, 594 So.2d 1063, 1067 (La.App. 3 Cir.1992), this court noted:

IsLastly, we bring to the sentencing court’s attention the provisions of LSA-C.Cr.P. Arts. 895 and 895.1 which require that before the sentencing court orders the payment of a fee to defray the expenses of probation supervision and the making of restitution to the Indigent Defender Board, it must suspend defendant’s sentence.

In State v. Frith, 561 So.2d 879 (La.App. 2 Cir.), writ denied, 571 So.2d 625 (La.1990), the defendant was convicted of simple burglary. He was sentenced to two years at hard labor and ordered to pay a $500.00 fine, $162.50 in restitution to the victim, $300.00 to the Indigent Defender Board, and all court costs. On appeal, on error patent review, the court held, in pertinent part:

Second, LSA-C.Cr.P. articles 895 and 895.1 authorize restitution and payment to the indigent defender program as a condition of probation only when the trial court suspends the imposition or execution of sentence. State v. Fluitt, 482 So.2d 906 (La.App. 2d Cir.1986); State v. Starks, 471 So.2d 1029 (La.App. 1st Cir.1985). In this case, the trial court did not suspend the two year hard labor sentence. For this reason, the portion of the sentence ordering restitution and payment to the indigent defender program is illegal. Therefore, we further correct the sentence to delete that portion ordering restitution and payment to the indigent defender program. C.Cr.P. art. 882.

Id. at 883.

Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent part:

B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the indigent defender program for that court.
(2) To the criminal court fund to defray the costs of operation of that court.
(3) To the sheriff and clerk of court for costs incurred.
(4) To a law enforcement agency for the reasonable costs incurred in arresting the defendant, in felony cases involving the distribution of or intent to distribute controlled dangerous substances.

Lin this case, the trial court did not suspend imposition or execution of Defendant’s sentence and place him on probation; therefore, we find that the trial court lacked authority to order payment to the Public Defender’s Office as part of the principal sentence. Accordingly, we amend Defendant’s sentence, deleting the $500.00 fine and costs and the provision requiring the $500.00 payment to the Public Defender’s Office. The trial court is instructed to note the amendment in its court minutes.

Additionally, the trial court erred in ordering Defendant, in the event of default of payment, to serve an additional six months in jail. In State v. Major, 03-249, pp. 2-3 (La.App. 3 Cir. 3/2/05), 898 So.2d 548, 550-51, this court explained in pertinent part:

It is well-settled that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).” State v. Zabaleta, 96-2449, p. 1 (La.3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La.Code Crim.P. art. 884 requires that, when a trial court imposes a fine or costs, it must also impose a specified term of imprisonment in the event the defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated “the portion of ... [a] sentence which provides for a jail term in the event of default of payment of a fine.... ” Zabaleta, 689 So.2d 1369.

The record indicates that Defendant is indigent. During the pre-plea, guilty plea, and sentencing proceedings, he was represented by a court-appointed attorney; and, on appeal, he is represented by the Louisiana Appellate Project. This court finds these facts are presumptive evidence of indigence. See State v. Jones, 535 So.2d 3 (La.App. 4 Cir.1988). Although we are amending the sentence to delete the fine and payment to the Public Defender’s Office, the order to pay $150.00 costs for the crime lab (presumably court costs) still remains. Therefore, we likewise delete the portion of the sentence providing for a jail term in the event |sof default of payment of costs. The trial court is instructed to note the amendment in its court minutes.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, Defendant’s appellate counsel has filed a brief stating that “after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Further, “[a]fter a conscientious and thorough review of the trial court record,” Defendant’s appellate counsel could “find no non-frivolous issues to raise on appeal” or a trial court ruling “that arguably supports an appeal.” Although Defendant received the maximum possible sentence, his appellate counsel believes this court would not find the sentence constitutionally excessive under the facts of Defendant’s case. Accordingly, appellate counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1 (D)[,] this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

| (¿Pursuant to Anders and Benjamin, we have performed an independent, thorough review of the record, including pleadings, minute entries, the bill of information, and the transcripts. Defendant was properly charged by a bill of information and was present and represented by counsel at all crucial stages of the proceedings. He pled guilty to the charge and received a legal sentence with the exception of those issues discussed in the errors patent section of this opinion. We find there are no rulings which arguably support an appeal.

We will now address Defendant’s pro se assignment of error.

PRO SE ASSIGNMENT OF ERROR

By this assignment of error, Defendant disagrees with his appellate counsel’s Anders brief wherein he states there are no non-frivolous issues to raise on appeal. Defendant asserts that he informed his appellate counsel about several issues related to the representation of his trial court defense counsel. Defendant claims “there was never enough evidence with which to convict him and that his [trial court defense counsel] knew the State’s case was very weak.” He maintains that “[a]n examination of not just the trial transcripts, but also of the State’s evidence, would show that defense counsel’s performance and advice fell below any reasonable standard of performance for criminal defense attorneys.” Defendant then complains that his appellate counsel chose “to rely only on the plea and sentencing transcripts[,]” and he asks this court to order his appellate counsel to “research and fully brief [the] issue of ineffective assistance of counsel so that this [c]ourt can [render] a fair and informed ruling[.]”

In State v. Savoy, 10-1140, p. 23 (La.App. 3 Cir. 5/11/11), 64 So.3d 457, 471, this court explains:

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief where an evidentiary 17hearing can be conducted at the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. Where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id.

Defendant concedes that the issue of ineffective assistance of counsel lies outside the instant record. Further, we find the instant record does not contain sufficient evidence to determine whether his trial court defense counsel was ineffective. Additionally, Defendant provides no instances of the ineffectiveness of counsel. Accordingly, we find this issue should be relegated to post-conviction relief.

DISPOSITION

Defendant’s conviction is affirmed. Defendant’s sentence is amended to delete the $500.00 fine and costs, the provision requiring the payment of $500.00 to the Public Defender’s Office, and the portion of the sentence providing for a jail term in the event of default of payment. The trial court is instructed to note these amendments in its court minutes. Defendant’s sentence, as amended, is affirmed. Defendant’s appellate counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

PICKETT, J., concurs in the result and assigns written reasons.

[T ORDER

After consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to withdraw is granted.

PICKETT, J.,

concurring.

hi agree in all respects with the result reached by the majority in this case, wherein we recognize three errors patent. Considering that these are non-frivolous issues affecting the defendant’s sentence, I would reject defense counsel’s Anders brief and do not agree that the motion to withdraw should be granted.


author: COOKS, Judge.

text:
    Huey D. BONNETTE, et ux. v. FORD MOTOR COMPANY, et al.
    No. 11-1274.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Fred A. Pharis, Pharis Law Offices, Alexandria, LA, for Plaintiffs/Appellees, Huey and Margaret Bonnette.
    Robert W. Maxwell, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Defendant/Appellant Ford Motor Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

| ,In this automobile redhibition case, the Defendant-Manufacturer appeals the lower court judgment awarding the Plaintiffs-Buyers a return of the purchase price, all expenses surrounding the sale, and attorney fees. For the following reasons, finding no manifest error in the lower court’s finding that Plaintiffs met their burden of proving the vehicle was defective when purchased and that they would not have purchased it had they known of the defect, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On December 7, 2007, Plaintiffs, Huey and Margaret Bonnette, purchased a pre-owned 2007 Ford Freestyle from Marler Ford (hereafter Marler) for $19,200.00 plus tax, title and licence. The vehicle had 26,670 miles at the time of purchase and was a “Quality Checked” Certified Pre-Owned Car warrantied by Ford Motor Company (hereafter Ford). The warranty was for six years of limited warranty coverage from the original Ford Vehicle Limited Warranty start date, or up to 75,000 miles, whichever came first.

The vehicle was originally purchased from Ford by Hertz Car Rental on June 10, 2006. It was used by Hertz as a rental car during which it accumulated 18,619 miles. The vehicle was then sold to Mar-ler by way of a Texas car auction company, and for the next seven months was used by Marler for customer and employee transport, incurring an additional 8,052 miles.

Plaintiffs first began to notice a different, unpleasant smell in the car. After complaints by the Plaintiffs, Marler had the vehicle detailed at RJ’s Car Wash in January, 2008. According to Plaintiffs, upon getting the vehicle back from RJ’s, there was a significant amount of water on the floorboard of the vehicle. Huey Bon-nette testified he assumed RJ’s had simply left the moon roof open during the car wash and called them and had the water vacuumed out of the vehicle.

1 ¡¡Unfortunately, this began a continuous pattern of recurring water leaks which are well documented in the record of these proceedings. Plaintiffs testified during normal use of the vehicle, they experienced continual water leaks which led to dripping in the vehicle’s interior. Plaintiffs stated the leaks were so significant, that they were forced to put a towel on the seat and a plastic bag on the driver’s legs. Frequent vacuuming of the accumulated water in the interior of the vehicle was required. Plaintiffs also stated water accumulated in the spare tire well near the hatchback of the vehicle. Plaintiffs testified they were forced to get a replacement vehicle for Margaret Bonnette because the mildew odor prevented her from driving the vehicle.

Several attempts at repairs were made. Eventually, Danny Webb, the owner of Marler, told Plaintiffs the water leaks could not be fixed and they should consider contacting an attorney. Plaintiffs did so and on February 9, 2009 filed a suit for redhibition in the Pineville City Court. It alleged extensive, unrepaired interior water leaks in the 2007 Ford Freestyle. The petition detailed several attempts at remedying the defect by Marler. Named defendants were Ford (the manufacturer), and Marler (the seller). Plaintiffs requested the return of the purchase price, all expenses surrounding the sale, judicial interest, and attorney fees.

Both Ford and Marler responded with answers denying liability. The matter proceeded to trial, and Plaintiffs testified as to the problems they experienced with the vehicle. They also called the court’s attention to a “Technical Service Bulletin” (TSB) which had been issued on July 3, 2006, which documented a moon roof drain routing problem with the 2007 Ford Freestyle. Ford countered that the mere fact a TSB is prepared and sent to dealers does not in and of itself indicate there is anything inherently wrong with that particular make of vehicle. They maintained a TSB is used as a “resource reference” for technicians to use to help ^identify the potential sources of a problem, if one exists, when a vehicle is brought in for repair.

Ford also presented the testimony of a Ford Field Service Engineer, Chris Fur-nas, who maintained there were no problems or defects in the vehicle that caused leaks. It was hypothesized that the leaking problems were likely caused by pine needles and other debris clogging various drains in the vehicle. Mr. Furnas also maintained if there were inherent problems with the vehicle due to defects in its manufacture, the problems would have begun before the vehicle was sold to Plaintiffs. Ford maintained there were no previous leaking problems with the vehicle prior to the sale to Plaintiffs, although no documentation of that was introduced below.

After taking the matter under advisement, and allowing the parties to present a post-trial memorandum, judgment was rendered in favor of Plaintiffs and against Ford, finding Plaintiffs met their burden of proving the vehicle was defective when purchased and that they would not have purchased it had they known of the defect. The lower court ordered the rescission of the sale of the vehicle in the amount of $19,200.00, plus $3,433.00 in increased finance damages, $1,436.50 paid to public officials, $62.00 in notary fees and insurance costs of $3,976.20. The lower court also awarded Plaintiffs $12,375.00 in attorney fees. Legal interest was due from the date of judicial demand, and Ford was cast with all costs of the proceedings.

The lower court specifically held Marler was free from fault and all claims against it were dismissed. Ford was also ordered to indemnify Marler for $7,500.00 it incurred in attorney fees.

Ford appealed the judgment, arguing the lower court “improperly concluded there was a defect in the vehicle when it left the factory, and, as such, finding in Plaintiffs’ favor. For the following reasons, we affirm the lower court judgment.

I «ANALYSIS

Redhibition is defined in La.Civ. Code art. 2520, and “is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” Louisiana Industries v. Bogator, 605 So.2d 213, 216 (La.App. 2 Cir.1992). The existence of such a defect gives a buyer the right to obtain rescission of the sale or a reduction in the price. La.Civ.Code art. 2520.

The warranty of La.Civ.Code art. 2520 is applicable to used as well as new things. Karageorge v. Cole, 565 So.2d 502 (La.App. 2 Cir.1990). Used things must operate “reasonably well for a reasonable period of time.” Id. at 508. See also Wagnon v. Hebert, 520 So.2d 1136 (La.App. 3 Cir.1987).

The buyer has an action against the manufacturer for any defects which “existed at the time the thing was delivered by the manufacturer to the seller.” La.Civ.Code art. 2531. While a buyer may sue a manufacturer directly for redhibitory defects, the manufacturer is liable but only for defects “resulting from the original manufacture” of the product. Rey v. Cuccia, 298 So.2d 840, 845 (La.1974). “[A] manufacturer is conclusively presumed to have knowledge of defects in the object it produces.” Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992), (citing George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (La.1905)).

“A buyer of an automobile who asserts a redhibition claim need not show the particular cause of the defects making the vehicle unfit for the intended purposes, but rather must simply prove the actual existence of such defects.” Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992); Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871 (1924). The buyer in a redhibition action is also not required to negate all other causes of a defect. Ewing and Salter, 5Inc. v. Gafner Automotive & Mach., Inc., 392 So.2d 762 (La.App. 3 Cir.1980), writ denied, 396 So.2d 933 (La.1981). “The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale.” Rey, 298 So.2d at 843.

On appeal, a trial court’s determination as to the existence of a redhibitory defect is factual in nature and will not be reversed absent manifest error. Miller v. Ford Motor Co., 01-1299 (La.App. 3 Cir. 2/6/02), 815 So.2d 997; Ollis v. Miller, 39,087 (La.App. 2 Cir. 10/29/04), 886 So.2d 1199. Our review of the record reveals no manifest error in the lower court’s finding of redhibitory defects.

On appeal, Ford contends the Plaintiffs did not meet their burden of proving a defect existed in the car at the time of its manufacture. It argues the leaking problems were caused by Plaintiffs’ failure to perform routine maintenance to remove debris which clogged the drain tubes. Ford attempts to buttress this hypothesis by stating the record “established the vehicle did not have a leak problem when it was owned and operated by Hertz Rental Car and Marler Ford and when it went through numerous inspections.” We find Ford failed to introduce any evidence to support this alleged fact.

As to Ford’s argument that it was Plaintiffs’ lack of maintenance on the drains that led to the leaks, it is clear that leaking problems continued even after several repair attempts were made. It would be ridiculous to suggest that any repair attempt, particularly one that involved a dis-assembly of the front area of the vehicle, would not involve removal of any debris found clogging the drains. However, even after the numerous repair attempts, leaking problems continued to manifest themselves with the vehicle. This perhaps explains the lower court’s apparent dismissal of Ford’s argument that the leaks were caused by pine needles and debris clogging the drains. It cannot reasonably be expected that the owner of |fithe vehicle is required to continually perform maintenance to simply open the moon roof.

Moreover, the TSB produced at trial supported Plaintiffs’ assertion that the leaking problems were the result of a manufacturing defect in the Ford Freestyle. The TSB, produced on July 3, 2006, titled “Water Leak — Roof Opening Panel”, indicated there were problems with the moon roof drain system leaking on certain Ford vehicles, including the 2007 Ford Freestyle. It specifically provided that “[c]ur-rent rear drain tube routing may not be adequate to handle water when vehicle is parked with the front of the vehicle on a slight incline.” This TSB, at a minimum, lends support to the lower court’s finding of a defect in the design of the Ford Freestyle’s drain routing, such that it rendered use of the vehicle “inconvenient and imperfect.”

Ford also argued that any defect in the manufacture of the vehicle would have manifested itself prior to Plaintiffs’ purchase, and the record established no such leaking problems occurred when the vehicle was owned and used by Hertz and Marler. Although Ford relies on its self-serving assertion that no leaking problems with the vehicle occurred when it was owned by Hertz and Marler, there was no evidence in the record supporting this assertion. No records were subpoenaed from Hertz nor did a representative from the company testify. While Ford states in its brief that Marler certified there was no damage in “these areas” prior to the sale, the inspection form introduced at trial only stated “[a]ny item(s) that did not pass our 115-point inspection have been replaced or repaired.” No Marler employee was called to testify and questioned by Ford regarding problems involving the moon roof or lack thereof prior to the present sale. Therefore, the lower court, in its discretion as the trier of fact, likely discounted or found no evidentiary value in assessing the form.

|7We also note the cases cited by Ford, in which redhibitory defects were not found to exist, all involved cases where the buyer lost at the trial court level, and manifest error was not found by the appellate courts on review. In its reply brief, Ford cites the recent decision in Cazaubon v. Cycle Sport, LLC, 11-289 (La.App. 1 Cir. 11/9/11), 79 So.3d 1063, wherein the First Circuit reversed, finding the trial court was clearly wrong in finding the existence of a redhibitory defect. However, the court in Cazaubon specifically found “[tjhere was no evidence offered to prove that anything was ever actually wrong with the engine.” Id. at 1067. In this case, there were obvious problems with the drain tubes of the vehicle which led to leaking problems, and the trial court found these problems were the result of a defect in the manufacture of the vehicle.

DECREE

After a thorough review of the record, we are satisfied the lower court did not err in finding Plaintiffs met their burden of proving by circumstantial evidence, and logical inferences, that a defect existed in the manufacture of the vehicle. Thus, we affirm the judgment finding a redhibitory defect existed in the vehicle and awarding return of the purchase price, all expenses surrounding the sale and attorney fees. All costs of this appeal are assessed to Defendant-Appellant, Ford Motor Company-

AFFIRMED.


author: CHARLES R. JONES, Chief Judge.

text:
    Eleanor T. FRANATOVICH Wife of/and Darryl Franatovich v. ST. BERNARD PARISH GOVERNMENT.
    No. 2011-CA-1128.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.

      Paul A. Tabary, III, Elizabeth R. Borne, Lacey Tabary, Tabary & Borne, L.L.C., Chalmette, LA, for Plaintiff/Appellee.
    Mark E. Hanna, Natalie J. Dekaris, Bradley R. Belsome, Bradley Murchison Kelly & Shea, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, Jr., Judge JOY COSSICH LOBRANO).
   CHARLES R. JONES, Chief Judge.

LThe Appellant, St. Bernard Parish Government, seeks review of the judgment of the district court finding that it was 90% at fault for causing the accident of the Appellees, Eleanor T. Franatovich wife of/ and Darryl Franatovich, by creating an unreasonable risk of harm in a vacant lot. Finding that the district court did not error, we affirm the judgment of the district court.

At dusk one evening in March 2002, the Franatoviches drove to the home of a relative to attend a party in Violet, Louisiana, in their pickup truck. Mr. Franatovich drove the vehicle while Mrs. Franatovich rode in the passenger seat. Upon reaching the destination, Mr. Franatovich turned off Packenham Road into a grass covered lot, where he had previously parked on several occasions. The front of the Franatoviches’ truck then abruptly fell into a four (4) or five (5) foot deep hole, which Mr. Franatovich testified that he had never previously encountered. The hole was dug by maintenance workers employed by the St. Bernard Parish Government (“St. Bernard”) in January 2002, to correct a drainage problem in the area.

As a result of the accident, Mrs. Frana-tovich sustained severe injuries. A few months before the accident, she had surgery on her lumbar spine from which she li>was recovering well prior to the accident. However, after the accident, the pain in her lower back and legs greatly worsened, and she sought treatment for the new symptoms. Extensive treatment and three (3) more spine surgeries were required as a result of her accident injuries. She sustained permanent physical damage as a result of the accident.

The Franatoviches filed suit against St. Bernard in March 2003. Trial was held in November of 2010. The district court determined that Mr. Franatovich did not see the hole because it was obscured by high grass; the area was poorly lit; and the hole was not clearly marked. The district court found that the hole dug by St. Bernard was an unreasonably dangerous defect that caused the accident of the Frana-toviches. The court further held that St. Bernard was 90% at fault for the accident and attributed 10% of fault to Mr. Frana-tovich for driving into an open hole. The district court awarded damages stemming from the accident solely to Mrs. Franato-vich. St. Bernard was ordered to pay $112,500.00 in general damages; medical expenses in the amount of $104,222.71; and $1,090.80 for vehicle repairs. From the judgment of the district court, St. Bernard timely filed the instant appeal and raises four (4) assignments of error on appeal:

1. The district court committed legal error in failing to analyze and apply La. R.S. 9:2798.1, granting St. Bernard immunity for its discretionary acts regarding the Parish drainage system;
2. The district court committed legal error by failing to apply a risk-utility analysis in determining whether the ditch which was serving a vital public function was unreasonably dangerous;
|s3. The district court clearly erred in finding Darryl Franatovich only 10% at fault, where the evidence established that he drove into an open and obvious roadside ditch in broad daylight when he voluntarily left the roadway to enter an undeveloped grassy area burdened with the Parish’s servitude of drainage; and
4. The district court erred in finding that Mrs. Franatovich’s injuries were causally related to the accident at issue, rather than her degenerative achondroplasia and spinal steno-sis.

The first assignment of error raised by St. Bernard is that the district court committed a legal error in failing to analyze and apply La. R.S. 9:2798.1, granting St. Bernard immunity for its discretionary acts regarding the Parish drainage system. St. Bernard argues that the district court committed an error of law in not applying La. R.S. 9:2798.1 to the case at hand. St. Bernard argues that the omission of the statute from the reasons for judgment of the district |4court evidences the court did not consider its statutory immunity. Thus, St. Bernard argues that the district court committed a legal error in not considering the immunity, and thus, we should not accord any special weight to the findings of the district court. St. Bernard argues that we are empowered to review the legal issue of immunity de novo, and render a judgment on the record. Snearl v. Mercer, 99-1738, pp. 27-28 (La.App. 1 Cir. 2/16/01), 780 So.2d 568, 584.

St. Bernard further argues that Louisiana courts such as the Fifth Circuit in Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255, and Marino v. Parish of St. Charles, 09-197 (La.App. 5 Cir. 10/27/09), 27 So.3d 926, have frequently held that decisions regarding a parish’s drainage system are not mandated by law, but are rather based on social, economic, and political safety considerations. Thus, St. Bernard argues a parish is immune from liability for discretionary acts pertaining to its drainage system. St. Bernard explains that the January 10, 2002 ditch work was reported by St. Bernard as “skimming the ditch”, which consisted of making necessary repairs and/or maintenance to the roadside to restore proper drainage in the community. St. Bernard argues that its decision to skim the ditch involved elements of judgment and choice.

St. Bernard argues that Calvin Kelone, Jr., a St. Bernard Assistant Foreman who supervised a heavy equipment crew at the time of the accident, testified that his crew was dispatched to the ditch in question in order to address complaints of standing water, trash in yards, and to make repairs necessary to remove blockage and restore proper drainage. Mr. Kelone testified that his crew noticed a large amount of trash in the ditch, and located a blockage of mud in | .^between two mis-matched culvert pipes, which they in turn “dug out” using a backhoe to restore proper drainage. St. Bernard argues that it was required to place a new culvert or underground duct where this particular ditch was dug; therefore, it is clear that the “void” in question was an open roadside ditch necessary to accept water off of the roadway. The Parish argues that decisions made in connection with the ditch involved elements of judgment and choice; meaning that its actions were discretionary. Thus, St. Bernard maintains that the district court erred as a matter of law in not applying the statutory immunity to this matter.

The Franatoviches argue that the immunity that St. Bernard seeks to apply is not applicable to this matter because the decision of the Parish to dig a hole in order to make a drainage repair was an operational decision. They argue that the cases cited by St. Bernard are distinguishable from the matter sub judice. For instance, in the Fossier case, the Franatoviches argue that Jefferson Parish was sued because the homes of Jefferson Parish citizens were flooded by Tropical Storm Isidore. Jefferson Parish was sued for an alleged defective drainage system. In Marino, the homes of citizens of St. Charles Parish were also flooded by heavy rainfall, which accumulated due to a backed-up parish drainage system. They argue that in these cases the holdings of the Fifth Circuit, in applying the statutory immunity, were based upon the particular facts before the court and a review of the drainage systems under the social and economic considerations made by the parishes. They further argue that the district court cannot be required to apply this immunity in the instant matter because there was no evidence introduced at trial about the applicability of the | f,immunity. We agree with the rationale provided by the Frana-toviches, and And that under the facts and circumstances of the instant matter, the immunity is inapplicable.

We note that silence of the district court in a judgment on any assignment of error that has been placed before it is deemed a rejection of the claim. Carter v. Dep’t of Police, 09-0723, p. 6 (La.App. 4 Cir. 10/21/09), 24 So.3d 255, 259. Thus, we consider the silence of the district court as to the immunity of St. Bernard as a rejection of its claim. While it might have been instructive for the district court to discuss the statute, it does not appear that the district court erred in declining to apply this immunity.

The Louisiana Supreme Court in Gregor v. Argenot Great Cent. Ins. Co., 2002-1138 (La.5/20/03), 851 So.2d 959, explained that the immunity from liability established in La. R.S. 9:2798.1 is essentially the same as the immunity conferred on the federal government by the exception in the Federal Tort Claims Act (FTCA). Citing Fowler v. Roberts, 556 So.2d 1 (La.1989) (on rehearing), the Supreme Court reasoned:

... [i]n Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the United States Supreme Court developed the following two-step analysis to examine immunity under FTCA: (1) whether a statute, regulation, or policy specifically proscribes a course of action; and (2) whether the challenged action is grounded in political, economic or social policy. This Court adopted the Berkovitz inquiry to analyze the applicability of La.Rev. Stat. 9:2798.1, describing it as follows: Discretion exists only when a policy judgment has been made. Judicial interference in executive actions involving public policy is restrained by the exception. Thus, the exception protects the government from pliability only at the policy making or ministerial level, not at the operational level. Fowler, 556 So.2d at 15.

Id, pp. 10-11, 851 So.2d at 966-67. Furthermore, “[w]hen the government acts negligently for reasons unrelated to public policy considerations, it is liable to those it injures.” Fowler, 556 So.2d at 15-16. In the matter sub judice, the district court made a factual determination that St. Bernard was not making a decision based on public policy when it responded to a drainage issue by digging a hole close to a road, and thereafter abandoned the hole without posting warning signage or attempting to alert the public to this hazard in another manner.

As the Franatoviches point out, “... [t]he decision to repair or perform maintenance on a particular road, and the extent of the repairs or maintenance, is a decision which the authority responsible for upkeep and maintenance of that road ... must make.” Odom v. City of Lake Charles, 00-01050, pp. 10-11 (La.App. 3 Cir. 1/31/01), 790 So.2d 51, 58 (citing Valet v. City of Hammond, 577 So.2d 155, 166-67 (La.App. 1 Cir.1991)). Such decisions are operational in nature and are not policy-making or discretionary function decisions for which La. R.S. 9:2798.1 provides immunity. Id.

The immunity is inapplicable in this matter because the Franatoviches suffered as a result of an operational decision of St. Bernard to dig a hole in a lot where a hole did not previously exist. The judgment of the district court finding that St. Bernard was not immune from liability for the accident at issue is not manifestly erroneous; thus, we find that this assignment of error is without merit.

|sThe second assignment of error raised by St. Bernard is that the district court committed an error of law in failing to apply the risk-utility analysis before summarily concluding that the roadside ditch constituted an unreasonably dangerous condition. St. Bernard argues that the district court failed to apply the correct legal standard in determining whether the hole created an unreasonable risk of harm. St. Bernard argues that it maintains ditches which provide a vital public service. Relying upon Oster v. Department of Transp. and Development, State of La., 91-195 (La.6/21/91), 582 So.2d 1285, St. Bernard further argues that the social utility of the ditch at issue; its required repair and/or maintenance; and the burden and cost of improving all ditches in St. Bernard outweighs the likelihood and magnitude of harm associated with a “driver willingly leaving the roadway and driving into the ditch in broad daylight.” It further argues that Mr. Franatovich saw the ditch and when he attempted to avoid it, his truck left a skid mark on Packenham Road.

The Franatoviches argue that the district court correctly held that the hole created an unreasonable risk of harm. Further, they argue that it was the duty of the Parish to properly label, mark or barricade the construction site due to the unreasonable condition St. Bernard created by digging the hole. Toledano v. Sewerage and Water Board of the City of New Orleans, 95-1130 (La.App. 4 Cir. 3/14/96), 671 So.2d 973. They further argue that the testimony elicited at trial showed that the area where the hole was dug had always been level ground with underground drainage conducted through culverts. Lastly, the Franatoviches argue that the Oster case relied upon by St. Bernard is distinguishable from the facts of the instant matter because Mr. Franatovich was [ 9operating his vehicle in a reasonably prudent manner, whereas in Oster, the plaintiff was a dirt bike rider who was travel-ling speedily through an unfamiliar grassy area and struck a drainage ditch seven-ten (7-10) feet from the highway.

First, it must be noted that the evidence and testimony adduced at trial provides support for the district court to find that St. Bernard dug a hole, not a ditch on the vacant lot. A former councilman in St. Bernard Parish, Tony R. Melerine, for instance, testified that he observed the vehicle of the Franatoviches stuck in a “hole” in an area where an underground culvert had existed. Furthermore, while there was conflicting testimony introduced at trial as to whether the instant accident occurred during the day or at night, there was a basis in the record for the district court to determine that this accident occurred at twilight or dusk.

The district court determined that St. Bernard is liable based on La. C.C. art. 2317, entitled Acts of others and of things in custody, which states:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

We have held that a plaintiff raising a negligence or strict liability suit against a public entity has the burden of establishing four (4) elements to prevail:

[i]n a claim against a public entity, based on negligence or strict liability, a plaintiff has the burden of proving that: (1) the thing which caused damages was in the care, custody, and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm to others; and (3) the defect | inin the thing was a cause-in-fact of the resulting injury; and (4) the public entity had notice of the defect under La. R.S. 9:2800, but failed to take corrective action within a reasonable time. Joseph v. City of New Orleans, 2002-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420.

Engles v. City of New Orleans, 03-0692, pp. 2-3 (La.App. 4 Cir. 2/25/04), 872 So.2d 1166, 1171, writ denied, 04-1432 (La.9/24/04), 882 So.2d 1141 and writ denied, 04-2654 (La.1/7/05), 891 So.2d 697. The district court applied this standard in determining that St. Bernard was liable for the majority of Mrs. Franatovich’s damages.

The reviewing court must evaluate the fact finder’s determination of whether a defect presents an unreasonable risk of harm under the manifest error standard of review. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 365. Albeit that this is the standard of review, the Louisiana Supreme Court has consistently held that a district court must apply the risk-utility balancing test in determining whether an unreasonable risk of harm exists. In Reed, the Supreme Court reasoned:

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Boyle, 685 So.2d at 1083 ; Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). Simply put: The trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others? W. Page Keeton et al., Prosser and Keeton |non the Law of Torts § 31 (5th ed.1984). [Emphasis added].

Reed, p. 5, 708 So.2d at 365.

The risk utility analysis encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and appar-entness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. Pryor v. Iberia Parish Sch. Bd., 10-1683, p. 4 (La.3/15/11), 60 So.3d 594, 596-97, reh’g denied (4/29/11); Pitre v. Louisiana Tech University, 95-1466, 951487, (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).

In the matter sub judice, the district court did not discuss the aforementioned four factors. Below is that portion of the Reasons for Judgment wherein the district court discussed the unreasonable risk of harm:

Next, the placement of an unmarked hole large enough to swallow a truck adjacent to a roadway is clearly an unreasonably dangerous defect. That “an accident occurred because of a vice or defect does not elevate the condition of the thing to that of an unreasonably dangerous defect.” Lasyone v. Kansas City Southern R.R., 786 So.2d 682, 694 (La.2001). In order to be unreasonably dangerous, the “vice or defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” Id. Here, the Parish dug a large hole next to a road. The hole remained open for months, and the Parish failed to maintain any visible markings or warning devices around it. Further, the Parish placed the hole between the road and vacant lot commonly used for parking vehicles-exactly where vehicles often drove. The placement of the hole combined with the lot’s poor lighting and the lack of markers around the hole at the time of the accident leads this Court to | ^conclude that the hole constituted “a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” Id.

The district court solely discusses the second factor of the risk-utility analysis: the likelihood and magnitude of harm, which includes the obviousness and appar-entness of the condition. The Reasons for Judgment are silent as to the utility of the hole; the cost of preventing the harm the hole caused; and the nature of the activities of the Franatoviches in terms of its social utility, or whether it is dangerous by nature. It would be a legal error for a district court to not apply the risk-utility balancing test to determine whether an unreasonable risk of harm existed. However, “[i]t is not necessary that the fact finder state the factors considered and its findings on each.” Boyle v. Bd. of Sup’rs, Louisiana State Univ., 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083. It is apparent that the district court determined that the social value and utility of the hole was outweighed by its potential harm to others.

In examining the remaining three (3) factors under the facts of this case, the hole did present an unreasonable risk of harm. The hole served a matter of great utility in alleviating a drainage issue in the surrounding area. The cost of preventing the harm at issue was minimal because St. Bernard could have posted a warning sign, or temporarily covered, illuminated, or fenced the hole until the drainage issue was totally resolved. Lastly, the nature of the activity of Mr. Franatovich — in seeking a parking spot in a vacant lot off of a road — is neither dangerous nor risky conduct. Considering that the court did explain why 11sit determined that an unreasonable risk of harm existed, we affirm the holding of the district court. This assignment of error is without merit.

The third assignment of error raised by St. Bernard is that the district court clearly erred in finding Mr. Franato-vich only 10% at fault, because the evidence established that he drove into an open and obvious roadside ditch in broad daylight when he voluntarily left the roadway to enter an undeveloped grassy area burdened with the Parish’s servitude of drainage. St. Bernard cites various cases in support of its argument that the courts of this State have always supported an apportionment of fault higher than 10% against drivers whose vehicles left the roadway when their accident occurred:

Woodbury v. Louisiana Dept. of Transp. and Development, 03-13, 03-14 (La.App. 5 Cir. 5/28/03), 848 So.2d 104 (85% fault assigned to driver who left roadway and collided with utility pole at the end of a ditch);
Gibson v. State Through Dept. of Transp. and Development, 95-1418, 95-1419 (La.4/4/96), 674 So.2d 996 (driver was assigned 33 % fault for failing to retain control of his truck when it veered off the roadway and impacted a concrete bridge cap adjacent to the roadway);
Simpson v. State Through Dept. of Transp. and Development, 636 So.2d 608 (La.App. 1 Cir.l993)(50% fault assigned to an inexperienced driver who was driving in the rain when he lost control of his truck — that had inoperable windshield wipers, and both rear tires were bald — and hit the railing of a trestle bridge);
|14* Williams v. City of Monroe, 27,065, 27,066 (La.App. 2 Cir. 7/3/95), 658 So.2d 820 (33% of fault assessed to the driver who lost control of her vehicle, which vaulted over a bridge railing); and
• Snearl v. Mercer, 99-1738 (La.App. 1 Cir. 2/16/01), 780 So.2d 563 (35% fault was assessed to a driver who, due to momentary inattentiveness, lost control of his dump truck, which fell 30 feet off of the highway).

The above-referenced cases are replete with instances where drivers were inattentive, they lost control of their vehicles, or their cars malfunctioned. In all of these cases, the vehicles of the drivers left the roadway, and the drivers were involved in accidents as a result thereof. St. Bernard argues that in these cases drivers have been apportioned fault at a percentage ranging from 33% to 85%.

The Franatoviehes argue that the facts and circumstances of the matter sub judice are unique and distinguishable from the cases cited by St. Bernard. They argue that Mr. Franatovich never lost control of his truck when he turned off the road into the vacant lot, and thát the evidence presented at trial shows that this accident occurred at dusk when Mr. Franatovich could not see the hole as he approached the lot. The Franatoviehes additionally argue that the skid marks present on Packenham Road were created when their truck was being removed from the hole. They contend that these marks were not the result of Mr. Franatovich seeing the hole and trying to avoid it, as alleged by St. Bernard. Thus, they maintain that considering the facts of this matter, there was a | ^reasonable factual basis for the district court to find that 90% of the fault for the instant accident lied with St. Bernard. We agree.

The allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613, p. 2 (La.3/2/99), 731 So.2d 197, 199. In apportioning fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. Gibson v. State Through Dept. of Transp. and Development, 95-1418, p. 12 (La.App. 1 Cir.4/4/96), 674 So.2d 996, 1005 (citing Campbell v. Louisiana Dept. of Transp. and Development, 94-1052 (La.1/17/95), 648 So.2d 898, 902). We note that since the advent of comparative negligence, drivers straying off the roadway have been found comparatively at fault. Id., p. 10, 674 So.2d at 1004 [citations omitted]. We review a fact finder’s apportionment of fault under the manifest error-clearly wrong standard. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610.

Under the unique facts of this case, there was a basis in the record for the district court to find that St. Bernard should be allocated 90% of the liability for the accident at issue. The district court was presented evidence as to the following facts:

1. the proximity of the hazard to the road was very close as the hole was adjacent to the roadway;
2. Mr. Franatovich’s familiarity with the lot, and the fact that in the area where the accident occurred, the ground was always solid and level until St. Bernard dug the hole at issue;
| ir,3. there was testimony that St. Bernard dug the hole in the lot to restore drainage in the area, but it did not post a sign or otherwise warn the public about the hole; and
4. that the hole was possibly obscured by the grass and there was not enough sunlight/light in the area for Mr. Franatovich to observe that there was a hole.

In light of these facts, we cannot say that the district court erred in apportioning 90% of fault to St. Bernard. This assignment of error is without merit.

The fourth assignment of error raised by St. Bernard is that the district court erred in finding that the injuries of Mrs. Franatovich were causally related to the accident at issue, rather than her degenerative achondroplasia and spinal stenosis. St. Bernard argues that the conclusions reached by the district court regarding medical causation are not reasonably supported by the expert medical evidence. It argues that its medical expert, orthopedic surgeon Dr. David Aiken, determined after reviewing the medical records of Mrs. Franatovich, that all of her post-accident surgeries were related to her pre-existing condition. Dr. Aiken, who has treated and performed surgery on patients with achondroplasia, never treated or examined Mrs. Franatovich.

The Franatoviches argue that the district court found that the hole in question was a cause-in fact of Mrs. Franatovich’s injuries because she suffered injuries that otherwise would not have occurred had she not been in the accident at issue. They further argue that the district court considered the medical evidence presented, the testimony of the treating physicians of Mrs. Franatovich, and reached a reasonable conclusion: the instant accident did cause |17her additional pain and contributed to her need for three (3) additional surgeries, albeit that she had a preexisting medical condition that also caused her pain and may have necessitated surgery in the future.

The holding of the district court on this assignment of error is based on factual findings and testimony adduced at trial. Thus, there is no basis on appeal for our Court to find that the district court committed manifest error. This is especially true because Mrs. Franatovich had nearing complete recovery from her last surgery when the instant accident occurred.

In November 2001, Mrs. Franatovich underwent a lumbar laminectomy from the T12 through L5 levels. She had almost completely recuperated from this surgery when the accident in question occurred. By March 5, 2002, she had returned to her normal activities, and was not using pain medication for her preexisting medical condition. However, the March 22, 2002 accident caused Mrs. Franatovich to experience severe pain in her lower back that radiated to her lower extremities.

Mrs. Franatovich received emergency treatment for her accident injuries at Ochsner, and thereafter treated with orthopedic surgeons Dr. Alain Cracco and Dr. James Butler. Both surgeons testified that the condition of Mrs. Franatovich was aggravated by the March 2002 accident. Mrs. Franatovich complained to Dr. Crac-co of neurological symptoms mainly involving the left lower extremity, which were not present between the time of her November 2001 surgery and the March 2002 accident.

Dr. Butler performed three (3) surgeries on Mrs. Franatovich from 2004 to 2007. After her last surgery, Mrs. Franatovich argues that her symptoms |18never completely resolved and she still experiences chronic pain. Dr. Butler further testified that her physical limitations resulting from her lumbar spine injuries and surgeries include residual loss of flexibility of the lumbar spine. He opined that her ability to perform routine functions, such as lifting, bending, and stooping, is permanently restricted.

Lastly, it is well settled in our jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Am. Motorist Ins. Co. v. Am. Rent-All, Inc., 579 So.2d 429, 433 (La.1991) (citing Perniciaro v. Brinch, 384 So.2d 392 (La.1980)). Where a defendant’s negligent action aggravates a preexisting injury or condition, he must compensate the victim for the full extent of his aggravation. Id. “This standard is known as the ‘egg shell’ plaintiff principle, wherein a defendant takes the victim as he finds him; thus, ‘[a]n injured person is entitled to recover full compensation for all damages that proximately result from a defendant’s tortuous act, even if some or all of the injuries might not have occurred but for the plaintiffs preexisting physical condition, disease, or susceptibility to injury.’” Logan v. Brink’s Inc., 09-0001, p. 10 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 538-39, writ denied, 09-1666 (La.10/30/09), 21 So.3d 290 (quoting 2 Stein on Personal Injury Damages 3d § ll.l)(internal quotations omitted). Pursuant to this principle, a plaintiff is required to establish a causal link between the tortious conduct and the aggravation of his pre-existing condition. Id. (citing Chavers v. Travis, 040992, p. 9 (La.App. 4 Cir. 4/20/05), 902 So.2d 389, 394). The district court found that a causal link between this accident and the aggravation of Mrs. Franatovich’s preexisting ^degenerative achondroplasia and spinal stenosis condition was established by the testimony and evidence produced at trial. This assignment of error is without merit.

DECREE

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

AFFIRMED

      . Degenerative achondroplasia is a genetic disorder birth defect that results in abnormally short stature. Spinal stenosis is the abnormal narrowing of the spinal canal.

      . La. R.S. 9:2798.1, entitled Policymaking or discretionary acts or omissions of public entities or their officers or employees, provides:
      A. As used in this Section, "public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
      C. The provisions of Subsection B of this Section are not applicable:
      (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
      (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
      D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

      . Boyle v. Bd. of Sup'rs, Louisiana State Univ., 96-1158, p. 5 (La. 1/14/97), 685 So.2d 1080, 1083.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Jacorey CARTER.
    No. 2011-KA-0859.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

hThe State of Louisiana appeals from a trial court ruling quashing the bill of information filed against the defendant, Jacorey Carter. For the reasons that follow, we reverse the trial court ruling and remand the case for further proceedings.

Mr. Carter was charged by bill of information with illegal possession of a legend drug, specifically, Tramadol, in violation of La. R.S. 40:1238.1(A). At a pretrial hearing on December 8, 2010, the defense presented the trial court with a crime lab repoi't indicating the pills seized from Mr. Carter “tested negative for violation drugs.” The State then moved to amend the bill of information to reflect a charge of attempted possession of a legend drug. Before the trial court ruled on the State’s motion, Mr. Carter orally moved to quash the bill of information on the basis that the alleged charge was not a crime under Louisiana law. The trial court granted the oral motion to quash. The State filed a motion for appeal, which the |2trial court granted on December 10, 2010. Mr. Carter subsequently filed a written motion to quash the bill of information on January 5, 2011.

On appeal, the State argues the trial court erroneously granted Mr. Carter’s oral motion to quash. We agree.

Louisiana C. Cr. P. art. 536 provides:

A motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court. It shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.

(Emphasis added). Because an oral motion to quash does not comply with La. C.Cr.P. art. 536, it cannot be considered by the trial court. See State v. Dixon, 2010-1279, p. 3 (La.App. 4 Cir. 5/2/11), 64 So.3d 852, 854 (citing State v. Joseph, 2009-1169, pp. 3-4 (La.App. 4 Cir. 3/24/10), 35 So.3d 422, 424).

Although Mr. Carter filed a written motion to quash the bill of information on January 5, 2011, the written motion has no legal effect, as it was filed after the trial court was divested of jurisdiction. See La.C.Cr.P. art. 916 (“The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal.”).

We further note that in granting the oral motion to quash, the trial court agreed with the defense that Mr. Carter could not have committed the charged offense because the crime lab report indicated negative for violation drugs, stating, “whatever it was, it was bunk ... And the last time I checked the possession of bunk is not a crime.”

The Louisiana Supreme Court explained the purpose and limits of a motion to quash in State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, stating:

|SA motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).

Byrd, 96-2302 at pp. 18-19, 708 So.2d at 411.

In this case, the bill of information charges Mr. Carter with a valid offense, i.e., illegal possession of a legend drug, a violation of La. R.S. 40:1238.1(A). Mr. Carter’s assertion that the seized pills “tested negative for violation drugs” is a factual defense, which is not a proper basis for a motion to quash. See, e.g., State v. Fox, 09-1423 (La.App. 4 Cir. 7/07/10), 43 So.3d 318 (trial court erred in granting a motion to quash based on the defense assertion that the State presented no evidence to establish the defendant knew the seized vehicle was stolen). Thus, we find the trial court erred in considering Mr. Carter’s defense to the alleged charge as a ground to quash the bill of information.

Accordingly, we reverse the trial court ruling and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED

      . La. R.S. 40:1237(3) defines "Legend drag” as "any drag or drag product bearing on the label of the manufacturer or distributor, as required by the Federal Food and Drag Administration, the statement 'Caution: Federal law prohibits dispensing, without prescription.’ ”