author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Michael Bradford BASS, Appellant.
    No. 45,298-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Burnes, Burnes & Talley by Dmitrc I. Burnes, Christian & Byars by James E. Christian, for Appellant.
    Michael Bradford Bass, Pro se.
    Jerry L. Jones, District Attorney, Ellen R. Eade, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

_JjThe defendant, Michael Bradford Bass, pled guilty to attempted first degree murder. He was sentenced to 20 years at hard labor without benefits of parole, probation or suspension of sentence. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction and sentence.

FACTS

On June 25, 2007, at approximately 5:00 p.m., officers with the Monroe Police Department responded to a multiple car accident that occurred at a busy intersection in Ouachita Parish. Corporal Doug Lambert, one of the responding officers, was investigating the driver of the vehicle who caused the initial collision, Ginny Ettredge. Based on his experience and training, he determined that Ettredge was driving under the influence, and placed her in his patrol car in order to direct his attention to the collision and resulting traffic jam.

Several bystanders informed Corporal Lambert that they had seen a man approach Ettredge’s vehicle and take a black bag from the car. He then left in his red Mercedes convertible. Corporal Lambert noted the information but continued with his investigation because this person was no longer present. Shortly thereafter, the same individual returned in the red Mercedes convertible and signaled to Corporal Lambert. As Corporal Lambert approached the red Mercedes, he realized that this man, who was later identified as Michael Bradford Bass, was the same man that removed the black bag from Et-tredge’s vehicle.

12Corporal Lambert looked down and saw a black bag on the passenger seat of the man’s car. As he went to grab the bag, Bass pulled the bag in the opposite direction, causing Corporal Lambert to fall into the car. Bass accelerated the vehicle, with Corporal Lambert still inside, whereupon a police chase ensued. The car ultimately came to a stop after crashing into a brick building. Bass was subsequently arrested and the black bag was taken into evidence.

On July 26, 2007, Michael Bradford Bass, the defendant, was charged by bill of indictment with the following four counts: (1) attempted first degree murder; (2) obstruction of justice; (3) possession of a Schedule II, Controlled Dangerous Substance (cocaine) with intent to distribute; and (4) possession of a Schedule I, Controlled Dangerous Substance.

On August 5, 2008, the trial court heard the defense’s motions to quash and to suppress. At the hearing, the state called its first witness, Corporal Lambert. He testified that on June 25, 2007, at approximately 5:00 p.m., he responded to a traffic accident involving a city bus at a busy intersection in Ouachita Parish.

Corporal Lambert testified that as he approached one of the vehicles involved in the accident, a dark blue Saturn, he observed that the driver, Ginny Ettredge, appeared to be under the influence and lethargic. When Corporal Lambert began to inquire about her insurance, the defendant, Michael Bass, approached and began to answer his questions. Corporal Lambert identified the defendant in open court as the same individual who approached him on that date. Because it appeared that DUI charges might |sarise, Corporal Lambert placed Ettredge in the back of his patrol car for further questioning.

Several bystanders then motioned to Corporal Lambert to come over and talk to them. One bystander, Russell Galyean, told Corporal Lambert that the defendant disregarded Ettredge’s well being and searched the car frantically. He then exited with a black bag, which he placed in a red car and drove away. Galyean identified the defendant by name, as he was a previous employee of the defendant.

At this point, Corporal Lambert believed that because the red car was gone, there was nothing he could do with this information. He testified that he went to investigate another vehicle that was involved in the collision and was approached again by one of the bystanders who reiterated the black bag story. Lambert started to return to the Saturn, but was interrupted when he saw the defendant parked in a red Mercedes convertible nearby. The car was parked with the engine running and the top down. When he observed the defendant in the red car, he explained his thought process:

Well, everything clicked. Because when ... when the eyewitness ... used the name “Bass” had taken the bag, it ... you know, it all kind of came together. This was the same guy that I had talked to about the insurance information and the towing company. And it all dawned on me, this is the same guy. This is the guy that they’re talking about.

At this point, Corporal Lambert testified that the defendant hollered something to the effect of “Hey, where’s my girl?” Lambert approached the car on the passenger side to explain that Ettredge was in the back of the patrol car and to see if the black bag was visible in the defendant’s car. Eventually, |4he was standing right next to the red convertible, with his thigh touching the passenger side door.

Corporal Lambert testified that when he saw the black bag in the passenger seat, he reached down to grab it. The defendant jerked the bag in the opposite direction, and in doing so, pulled Lambert into the car, head first. Simultaneously, the defendant hit the gas pedal and accelerated the vehicle at a high rate of speed. Lambert repeatedly yelled at the defendant to stop the car, but to no avail. The defendant’s only response Lambert’s pleas to stop was that “he could not go back” (to jail presumably).

The defendant continued at a high rate of speed, swerving back and forth in an attempt to throw Corporal Lambert from the car. Lambert testified that he reached down to the floor shifter and jerked it down to a low gear, which resulted in the car still going forward but the tires moving at a slower rate. Although the car was in a low gear, the defendant continued to accelerate in spite of Lambert’s pleas. When Lambert looked up, the defendant was accelerating directly toward a telephone pole which, had it been struck, would have impacted the passenger side where Lambert was located. Lambert was able to grab the steering wheel and veer the vehicle away from the telephone pole, whereupon the car spun around several times in the road.

Through the spinning, Corporal Lambert lost control of the wheel and following a brief pause, the defendant drove the Mercedes into a brick building at a high rate of speed. Lambert was thrown into the windshield as the car continued into the building. The defendant attempted to reverse the [ scar out of the building. However, the defendant’s getaway was thwarted when he crashed his car into a patrol car parked behind him.

Although in a contorted position, Corporal Lambert was able to unholster and deploy his Taser into the defendant’s side. Following a brief struggle, the defendant was arrested and handcuffed. The defendant took the bag with him but Lambert told the officers to secure the bag. As a result of this ordeal, Lambert testified that he suffered a contusion to his lower leg bone and ankle bone. He also testified that he believed he was going to be killed.

On cross, Corporal Lambert explained why he reached for the black bag in the defendant’s convertible:

Because in my opinion he had illegally removed the bag from what was a crime scene. I did not know if I would be able to get it back. I did not know even if I called a car and tried to have him stopped, if we would ever ... after that point if it would ... if we would be able to get control of it again.
I was afraid that whatever was in the bag was what she was on that had led her to ... to be in the condition that she was in to be driving. I didn’t know if it was drugs for sure. It could have been a bottle of vodka. It could have been anything. I just didn’t know. I just know he wasn’t supposed to take it from the car.

Corporal Lambert testified that the area was considered a “crime scene” because it was apparent that Ms. Ettredge was driving under the influence. Because of how small the black bag was, when the defendant attempted to get the bag back from Corporal Lambert, he inadvertently or intentionally, grabbed part of the officer’s hand.

| f,Next, the state called Summer Nicole Neilsen, who lived at the Mary Lea Apartments, which faced the accident scene. After hearing the loud crash, Neilsen testified that she went outside and observed the following:

I saw the red car ... the Mercedes pull in. And at the time I saw Mr. Bass get out of his car, after he had parked it at the apartment across from me, walk over to the blue vehicle and went to the passenger side, removed a black bag and came back to his car and went into ... and went inside the apartment and then came out a few seconds later and left.

Neilsen knew the defendant prior to the day of the accident and identified him in open court. She did not observe any law enforcement officers during the time that the defendant removed the bag and entered the apartment. According to her, the defendant arrived within seconds following the accident and the police arrived shortly after he entered the apartment. Neilsen observed Corporal Lambert approach the defendant in the red Mercedes and when the officer reached into the car, the defendant immediately drove off with the tires screeching and causing smoke.

The state’s next witness was Russell Galyean, who also lived in the Mary Lea Apartments. Galyean arrived home soon after the accident occurred. Upon arriving at the complex, he walked to the street where the accident occurred. Galyean testified that he observed the defendant walk up to the blue Saturn and remove a black bag from the car. Galyean knew the defendant, because he had worked for him in the past, and he identified him in open court. The defendant was a car salesman and Galyean was hired as an employee at the defendant’s business. Galyean was asked to leave after he failed to sell any cars. He testified that the circumstances surrounding his termination were “fine” and that he understood why he had been let go.

17Galyean testified that he alerted Corporal Lambert to the defendant’s removal of the black bag from the Saturn. Galyean later observed Corporal Lambert speaking to the defendant while he was in the red Mercedes. Thereafter, Lambert reached into the car and the defendant accelerated the vehicle causing the tires to screech and the car to take off with the officer on top. At this point, the state introduced into evidence the statement from Galyean which detailed the information he provided to Corporal Lambert on the date of the accident.

Next, the state called Corporal Reginald Brown with the Monroe Police Department. Corporal Brown responded to Corporal Lambert’s request for assistance at the accident scene. Brown testified that he spoke with Ettredge, whose speech was slurred and that it was apparent she was under the influence. While speaking with Ettredge in the police car, Brown saw Lambert reach into the defendant’s car for the black bag and the defendant “grab him and yank him in.” Then, he could only see white smoke from the tires and Lambert partially inside the car as it sped away.

Corporal Brown followed the defendant in his patrol car whereupon he observed the Mercedes spin around several times before running into the building. At this point, Brown told the defendant to stop, but the defendant attempted to back the car out of the building. Brown identified the defendant in open court.

According to Corporal Brown, after he blocked the Mercedes with his patrol car, the defendant exited the vehicle and attempted to walk away. A struggle ensued and Brown was not able to subdue the defendant without [^assistance from other officers. Brown testified that he could not recall whether or not the defendant exited the vehicle with the black bag.

The state’s next witness was Officer Scotty Sadler with the Monroe Police Department. He testified that when he arrived, Corporal Brown had already placed the defendant in handcuffs. Sadler identified the defendant in open court. He testified that after the defendant was detained, he was told by Corporal Lambert to retrieve the black bag. Officer Sadler located the bag and secured it in the trunk of a patrol car. Prior to doing so, Officer Sadler opened the bag and, based on his experience and training, observed what he believed to be a large quantity of crack cocaine.

Officer Sadler was approached by Russell Galyean who claimed to have witnessed the event. Sadler gave Galyean a piece of paper and asked him to provide his statement. Galyean returned the paper with his sworn statement to Officer Sadler. On cross, Sadler testified that while at the hospital where the defendant was examined, the defendant asked the officer to “tell that cop I didn’t mean to hurt him.”

At the conclusion of the hearing, the defense asked the court to suppress any evidence from the black bag and alleged that the bag itself was illegally seized from the defendant. The defense further argued that any arrests therefrom should also be suppressed. The trial court denied the motion and found that Corporal Lambert had probable cause to believe that the bag was evidence of a crime and, thus, had probable cause to detain the bag. The court noted that the witnesses were not anonymous tipsters.

li,The defense also argued that the defendant’s actions were reasonable, and that he had the right to resist an unlawful arrest. The court held that there was no unlawful arrest, but there was a detention of a bag that was evidence in two crimes (the possible DWI and obstruction of justice). The court provided that the officers had probable cause to arrest the defendant on numerous occasions for the following crimes: obstruction of justice, battery of a police officer, and attempted murder of a police officer. Finding that the initial seizure and subsequent search and seizure were lawful, the trial court denied both the motion to suppress and motion to quash.

On August 15, 2008, the defendant vacated his plea of not guilty and entered a plea of guilty to the charge of attempted first degree murder. The plea agreement provided that in exchange for his plea, the defendant would receive 20 years at hard labor without benefits and the state would drop the remaining charges. The defendant maintained his rights under Crosby regarding the rulings on the motions to quash and suppress. State v. Crosby, 338 So.2d 584 (La.1976).

Before explaining to the defendant the rights he was waiving, the trial judge began by requesting that the defendant ask for clarification at any point if he did not understand 100% of what was being discussed. The trial judge advised the defendant, and the defendant stated that he understood that he had a right to trial by jury and a right to confront witnesses; and by entering the guilty plea, he was waiving those rights. The judge explained these rights in detail and the defendant said that he fully understood what he was giving up.

| ipThe trial judge explained the elements of the crime of first degree murder. The defendant inquired as to the difference between first and second degree murder. During the explanation, the defendant stated that he understood first degree murder to be “premeditated.” The judge laid out all of the factors that elevate a homicide to first degree murder under Louisiana law. Following the discussion, the defendant stated that he understood the difference. Again, the defendant asked for clarification regarding the judge’s choice of words. And again, the judge clarified and the defendant stated that he understood. Following an adequate plea colloquy, the trial court accepted the defendant’s plea of guilty for the crime of attempted first degree murder.

The defendant was convicted of attempted first degree murder of a police officer and was sentenced to 20 years at hard labor without benefit of probation, parole or suspension of sentence. This appeal followed.

The defendant filed a pro se brief alleging the following assignments of error: 1) that the rulings on the motions to suppress and quash were erroneous; 2) that he was denied effective assistance of counsel; and 3) that Russell Galyean’s handwritten statement was never produced, thus denying his right to appeal on a complete record. Additionally, appellate counsel filed a brief on behalf of the defendant alleging three assignments of error: 1) the trial court erred in denying the motion to quash; 2) the trial court erred in denying the motion to suppress; and 3) the trial court erred in accepting the guilty plea.

InLAW AND DISCUSSION

Motion to Quash and Motion to Suppress

In the defendant’s first assignment of error, he urges that the trial court erred in denying the motion to quash and the motion to suppress, and in relying on inconsistent and inadmissible hearsay statements. Similarly, the defendant’s counsel contends that the evidence obtained should have been suppressed and further, the indictment quashed. More specifically, his counsel argues that warrantless searches are generally unreasonable and because exigent circumstances did not exist, the seizure of the bag was illegal. Thus, any evidence obtained therefrom is also illegal. For the sake of efficiency, we will join these assignments together to discuss under one analysis.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. State v. Crisp, 33, 165 (La.App. 2 Cir. 8/31/00), 767 So.2d 163; Rosell v. ESCO, 549 So.2d 840 (La.1989). In order to reverse a factfinder’s determinations, a two-part test must be satisfied: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120 (La.1987).

State v. Gipson, 45,121 (La.App.2d Cir.4/14/10), 34 So.3d 1090, provides the legal principles relevant to warrantless searches and motions to suppress that arise therefrom:

11?The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168; State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841.
The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of war-rantless searches under special circumstances. State v. O’Neal, supra.
When the constitutionality of a warrant-less search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra.
The plain view doctrine is an exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753; State v. O’Neal, supra. The plain view doctrine renders a war-rantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. O’Neal, supra.
The entire record, including the testimony at trial, is reviewable for determining the correctness of a ruling on a pretrial motion to suppress. State v. Collins, 44, 248 (La.App.2d Cir.5/27/09), 12 So.3d 1069. This court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, supra.

11sThis court, in State v. Wells, 593 So.2d 465, 469 (La.App.2d Cir.1/22/92), explained the automobile exception to the warrant requirement:

The “automobile emergency exception” was first mentioned in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). There it was suggested that a warrantless search of an automobile may be justified by necessity arising out of the mobility and imminent possibility of disappearance of the vehicle. Two prerequisites were initially mentioned: probable cause to believe that the vehicle contained contraband or evidence of a crime, and exigent circumstances requiring an immediate search. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), observed that the capacity to be “quickly moved” was clearly the basis of the holding in Carroll and its progeny which consistently spoke in terms of ready mobility of the motor .vehicle. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

We emphasize the court’s further explanation in Carney, supra:

When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes-tempor&ry or otherwise-the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable. 105 S.Ct. at 2070.

In the instant case, the defendant asserts assignments of error regarding the rulings on the motions to quash and suppress. However, the defendant was not convicted of possession of controlled dangerous substances, which is the main issue in both the motion to quash and the motion to suppress. The motions seek to have any evidence obtained from the black bag excluded |14from evidence. The fact that drugs were found is not relevant because the defendant neither pled guilty to, nor was he convicted of, any charges relating to the drugs. Therefore, this would not affect the defendant’s ultimate guilty plea to the crime of attempted first degree murder. Nevertheless, part of the plea agreement provided that the defendant maintained his right to 'challenge the rulings so we will discuss these assignments of error in this opinion.

In denying both motions, the trial court found that probable cause existed to detain both the black bag and the defendant. Although the black bag was seized without a search warrant, the facts in this case present an exception to the warrant requirement.

If a car is “readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” State v. Lopez, 772 So.2d 90 (La.10/30/00), citing, Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). A warrant-less search of a vehicle is not unreasonable if there is probable cause to justify the search, without proving any additional exigency, when the vehicle is readily mobile because there is an inherent risk of losing evidence.

In the instant case, the defendant was in his car with the engine running. The fact that the car was running is a clear indication that the car was mobile. During the course of Corporal Lambert’s investigation of a traffic accident involving a possible DUI charge, he received information from at least two individuals who knew that the defendant had removed a black bag from the car with the impaired driver. The individuals were not | ^anonymous tipsters but eyewitnesses. Additionally, they both testified at the hearing on the motions. Corporal Lambert reasonably believed, and had probable cause to believe, that the black bag was possible evidence of the DUI crime and that its removal constituted obstruction of justice. Corporal Lambert only approached the vehicle after being signaled to do so by the defendant.

Probable cause to arrest exists when an officer has within his knowledge, reasonable and trustworthy information regarding facts and circumstances such that a reasonable man would believe the offender has committed or is committing a crime. State v. Thomas, 349 So.2d 270 (La.1977), citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). State v. Wells, supra.

In the present case, all of the circumstances, combined with the presence of the bag on the defendant’s passenger seat, created probable cause that this bag could be evidence of a crime. When Corporal Lambert reached for the black bag, which was clearly visible in the defendant’s convertible that had the top down, the officer had probable cause to believe that the defendant had committed the crime of obstruction of justice by removing the bag from Ms. Ettredge’s vehicle.

As a reviewing court, we are reminded that the issue is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. In this case, the trial court made determinations of credibility of witnesses and determined that probable cause existed to seize the bag and to arrest the defendant. The record reveals, and the 1 mjurisprudence supports the finding, that there existed probable cause and exigent circumstances to uphold the warrantless search. Thus, the search and subsequent seizure were legal, and the motions to suppress and quash were properly denied. This assignment is therefore without merit.

Guilty Plea

In the second assignment of error, the defendant argues that the district court erred by accepting the guilty plea. More specifically, he argues that the trial court should have been put on notice that there was a need for an Alford inquiry to determine whether there was a significant factual basis for the plea of the defendant. The defendant further alleges that had the trial court conducted the Alford inquiry, it would have revealed that the state’s case did not contain significant evidence of actual guilt.

La. R.S. 14:30(A)(2) defines “first degree murder” as the killing of a human being:

When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman, peace officer, or civilian employee of the Louisiana State Police Crime Laboratory or any other forensic laboratory engaged in the performance of his lawful duties, or when the specific intent to kill or to inflict great bodily harm is directly related to the victim’s status as a fireman, peace officer, or civilian employee.

La. R.S. 14:27(A) provides in pertinent part:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

117The entry of a guilty plea must be a free and voluntary choice. For a plea to be considered free and voluntary, the transcript must establish that defendant was informed of and waived his rights to trial by jury, to confront his accusers, and of his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984).

When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reasons the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Wills, 32-073 (La.App.2d Cir.6/16/99), 740 So.2d 741.

At the outset of the hearing, the trial judge clarified the exact plea agreement between the state, defense counsel and the defendant. The agreement was made subject only to the rights reserved pursuant to State v. Crosby, supra. The defendant admitted that he considered the offer only in terms of length of sentence, but was unaware as to what charge he would plead. When the charge was announced, the defendant explained that he was uncomfortable with the charge, but acknowledged that he considered the facts presented at the hearing on the motions and the odds against him and that he believed it to be in his best interest to enter the plea of guilty to the charge of attempted first degree murder.

11RThe trial judge then identified the possible sentencing exposure under the statutes. The defendant stated that he understood the charge and that he was pleading guilty to said charge. The judge, defense counsel, the state, and the defendant all agreed that the factual basis for the plea is that which was set forth during the hearing on the motions to suppress and quash. The defendant agreed that this plea was in his best interest.

The defendant stated that the decision to plead guilty was his decision and not the result of any threats or coercion. The judge asked the defendant what was his plea to the charge of attempted first degree murder to which the defendant responded, guilty.

The defendant, during his plea, did not maintain his innocence of the crime; thus Alford was not triggered. The defendant argues that declaring that his plea was a “best interest plea,” transforms it into an Alford plea. However, such an argument is meritless as the defendant did not maintain his innocence during the plea. The defendant evidenced an intent to kill or inflict great bodily harm on Corporal Lambert during the high speed chase. The facts clearly establish the requisites for attempted first degree murder. This assignment is therefore without merit.

Effective Assistance of Counsel

The defendant asserts in his third assignment of error that he was denied his Sixth Amendment right to effective assistance of counsel at the hearing for the motions to quash and suppress. More specifically, he alleges that counsel failed to object to the use of statements by unidentified and 1 ^unsubstantiated witnesses at the hearing for the motions to suppress and quash. These statements, according to the defendant, resulted in prejudice.

In alleging ineffective assistance of counsel, a defendant must satisfy a two-pronged test by showing, first, his attorney’s performance to be so deficient as to deny him the “counsel” guaranteed by the Sixth Amendment, and second, that those errors are so serious as to deprive the accused of a fair proceeding, i.e., one with a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337, 1339 (La.1986). In order to prevail under the Strickland test, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires showing the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is Unreliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

Although a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief rather than on appeal, this court may resolve the issue on direct appeal if the record is sufficient. La. C. Cr. P. art. 930; State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673. In the instant case, the record is sufficient to review the defendant’s claims of ineffective assistance of counsel.

The defendant claims that counsel was ineffective for allowing the trial judge to make factual determinations which were clearly wrong. Specifically, the defendant alleges that he was prejudiced when counsel failed to object to certain “hearsay” testimony, namely Corporal Lambert’s testimony that unnamed eyewitnesses told him they saw the defendant remove the bag from Ettredge’s car, and Neilsen’s testimony. The defendant also alleges that counsel failed to point out Mr. Galye-an’s inconsistent statements and declined to make oral closing arguments on the hearing on the motions.

12i The complained of testimony was not “hearsay,” but eyewitness testimony. The testimony given by Corporal Lambert, that other bystanders advised that the defendant had removed the bag, was not hearsay as it was not offered to prove the truth of the matter asserted but rather to explain the actions taken by Corporal Lambert.

In reality, the defendant is complaining of the trial judge’s factual determination and not of any errors on the part of trial counsel. Essentially, the defendant disagreed with the testimony because it tended to prove his guilt. However, that is not a basis for a cognizable objection. Any objection to such testimony by the defendant’s then counsel would not have been sustained. Therefore, under Strickland, trial counsel’s performance cannot be considered to be below an objective standard of reasonableness.

Galyean was cross-examined extensively by defense counsel. After reviewing the record, we can see a clear indication that the defendant’s counsel adequately cross-examined the witnesses. The defendant’s main issue is that the trier of fact believed the witnesses’ version instead of the defense’s version of facts. The defendant has failed to establish that the result of the rulings on the motions would have been different had defense counsel not waived oral closing arguments. That is not a cognizable claim for ineffective assistance of counsel.

The defendant has failed to demonstrate that, but for defense counsel’s alleged unprofessional errors, there is a reasonable probability that the result of the proceedings would have been different. He has thus failed to meet his burden of proving that he received ineffective assistance of | ^counsel. State v. Holden, 45,038 (La.App. 2 Cir. 1/27/10), 30 So.3d 1053. This assignment is therefore without merit.

Galyean’s Handwritten Statement

In the final assignment of error, the defendant alleges that he was denied his constitutional right to a complete appellate review because Russell Galyean’s handwritten statement was not provided to the defendant or this court. ■

The record reveals that the statement was verified by Mr. Galyean, the person who wrote it, and by Officer Sadler, the officer who signed it, and that it was properly introduced into evidence. Additionally, it is part of the record as an exhibit. The fact that the defendant never saw an actual copy of it is of no matter, because it was made a part of the record and his counsel had access to the document. Moreover, the handwritten statement is a part of the record before this court. Therefore, this assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Earton Lynn SMITH, Appellant.
    No. 45,430-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Bertha Moseley Hillman, Louisiana Appellate Project, for Appellant.
    Earton Lynn Smith, pro se.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

The defendant, Earton Lynn Smith, was convicted of aggravated burglary arising from an incident that occurred in July 2006 and sentenced to 30 years at hard labor. The state then filed a habitual offender bill of information against the defendant, asserting that he had two prior felony convictions. Following a hearing, the defendant was adjudicated a third-felony offender. Thereafter, his original sentence was vacated, and he was sentenced to a mandatory life sentence without the benefit of parole, probation or suspension of sentence. The defendant appeals. We affirm the defendant’s adjudication as a habitual offender and his sentence.

FACTS

In November 2008, the state filed a habitual offender bill seeking the adjudication of the defendant as a third-felony offender on the basis of the following convictions:

(1) On November 22, 1991, the defendant was convicted of armed robbery in docket number 69,550 in the 26th Judicial District Court, Parish of Bossier, and was sentenced to serve 13 years at hard labor without the benefit of parole, probation or suspension of sentence;

(2) On April 15, 2004, the defendant was convicted of three counts of battery of a correctional facility employee in docket number 88,226 in the 26th Judicial District Court, Parish of Bossier, and was sentenced as a habitual offender to two terms of two and a half years at hard labor and one term of 10 years at hard labor to be served consecutively.

1 ⅞(3) On November 29, 2007, the defendant was convicted of aggravated burglary [the instant case] in docket number 148,-130 in the 26th Judicial District Court, Parish of Bossier, and was sentenced to serve 30 years of imprisonment at hard labor.

A hearing on the habitual offender bill was held in July 2009. Lt. Gary Bass of the Bossier Parish Sheriff’s Office Crime Scenes Investigations unit testified as an expert in fingerprint identification. He stated that he had taken the defendant’s fingerprints in open court. After being presented certified copies of the bills of information filed in docket numbers 69,550 and 88,226, Lt. Bass was asked to compare the defendant’s fingerprints with the fingerprints of the individuals convicted therein. Lt. Bass concluded that all three sets of fingerprints belonged to the defendant. The state also introduced certified copies of the minutes from those two docket numbers reflecting the defendant’s conviction of the offenses charged, which in both cases were felonies. As to docket number 148,130, the state presented the testimony of the prosecutor in that case, Edward Charles Jacobs. He testified that the defendant in the habitual offender bill was the same person he prosecuted in the instant case, the 2007 aggravated burglary conviction. The trial court adjudicated the defendant as a third-felony offender and ordered a presentence investigation (PSI) report.

l-iln November 2009, the trial court sentenced the defendant. Finding that all three of the defendant’s felony convictions were crimes of violence under La. R.S. 14:2(B), the court imposed a mandatory life sentence without the benefit of parole, probation or suspension of sentence as required by La. R.S. 15:529.1(A)(l)(b)(ii).

The defendant filed a motion to reconsider sentence. He argued that battery on a corrections officer is not a crime of violence because it is not specifically listed as such in La. R.S. 14:2(B). The trial court denied the motion.

The defendant appealed. Defense counsel asserted one assignment of error, while the defendant put forth two pro se assignments of error.

CRIME OF VIOLENCE

Defense counsel argues that the trial court erred in considering battery of a correctional facility employee to be a “crime of violence” under La. R.S. 14:2(B) and in consequently sentencing the defendant to life imprisonment without benefits under La. R.S. 15:529.1(A)(l)(b)(ii). He contends that he should have been sentenced instead under La. R.S. 15:529.1(A)(l)(b)(i), which would have provided for a sentence of not less than two-thirds of the longest possible sentence for aggravated burglary and not more than twice the longest possible sentence for that offense.

La. R.S. 15:529.1(A)(l)(b)(ii) states:

If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time |4of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:2 provides, in pertinent part:

B. In this Code, “crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as “crimes of violence”: ...

The statute then sets forth a list of enumerated “crimes of violence.” While battery of a correctional facility employee is not one of them, the offense of “battery of a police officer” was added to the list by the legislature in 2008. Acts 2008, No. 619. However, the list of offenses is illustrative, not exclusive. See State v. Hinton, 2008-1849 (La.App. 1st Cir.2/13/09), 6 So.3d 242; State v. Fontenot, 2006-226 (La.App. 3d Cir.7/12/06), 934 So.2d 935; Coates v. Day, 2000-2164 (La.App. 1st Cir.12/28/01), 804 So.2d 893.

La. R.S. 14:34.5 defines battery of a correctional facility employee as follows:

Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.

La. R.S. 14:33 defines battery to include the intentional use of force or violence upon the person of another.

| ¿The language of La. R.S. 15:529.1(A)(1)(b)(ii) provides for a mandatory life sentence of a third-felony offender when each of the defendant’s crimes is defined as a crime of violence under La. R.S. 14:2(B); it does not require that they be enumerated as a crime of violence. Accordingly, so long as battery of a correctional facility employee is a felony fitting the definition of a crime of violence, the court did not err in sentencing the defendant to a mandatory life sentence. Because a battery requires the “intentional use of force or violence upon the person of another,” it is axiomatic that it involves as an element of its commission “the use ... of physical force against the person ... of another, and that, by its very nature, involves a substantial risk that physical force against the person ... of another may be used.... ” La. R.S. 14:33 and La. R.S. 14:2(B). The fact that battery of a police officer is enumerated as a crime of violence only bolsters the argument that battery of a correctional facility employee is also a crime of violence. The two crimes are defined identically with the exception of the status possessed by the victim, “a police officer acting in the performance of his duty” in one, and “a correctional facility employee acting in the performance of his duty” in the other.

This assignment of error is without merit.

CONFLICT OF INTEREST

In this pro se assignment of error, the defendant collaterally attacks his underlying aggravated burglary conviction. He contends that the assistant district attorney in that case, Edward Charles Jacobs, should have [^recused himself from prosecuting the defendant because he briefly represented the defendant in two other criminal cases in 1997 and 1998 when he was employed as an indigent defender and that, as a result, there was a conflict of interest.

La. C. Cr. P. art. 680 sets forth three grounds for recusing a district attorney. These include when a district attorney has a personal interest in the cause which is “in conflict with fair and impartial administration of justice” and when the district attorney has been “employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.”

In State v. Bourque, 622 So.2d 198, 216-17 (La.1993), overruled on other grounds by State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, the Louisiana Supreme Court addressed the defendant’s burden in a motion to recuse a district attorney as follows:

In a motion to recuse the district attorney, “the defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice.” State v. Edwards, 420 So.2d 663, 673 (La.1982). While this standard of proof is applicable for the disqualification of an assistant district attorney, the grounds for disqualification are not necessarily restricted to the statutory grounds to recuse a district attorney as set forth in La. C. Cr. P. art. 680. See State v. Allen, 539 So.2d 1232, 1234 (La.1989).

In Allen, supra, the supreme court held that “although art. 680 expressly requires recusation when the district attorney was previously employed ‘in the case,’ the ethical rules and the jurisprudence impose a broader gloss on the statutory requirement by providing for recusation when |7the district attorney was previously employed in ‘a substantially related matter.’ ”

The proper procedural vehicle in which to request removal of an assistant district attorney from prosecuting a case is a motion to disqualify. State v. Divers, 38524 (La.App.2d Cir.11/23/04), 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied, 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005).

Mr. Jacobs was the prosecutor for the instant conviction of aggravated burglary. While Mr. Jacobs had previously represented the defendant as an indigent defender in 1997 and 1998, there is no suggestion or evidence that Mr. Jacobs had any connection to the defense of the aggravated burglary charge or that this case was in any way connected to his previous representation of the defendant. Also, Mr. Jacobs testified that his former representation of the defendant was discussed during the aggravated burglary case, but no objection was ever made to him prosecuting the defendant. Accordingly, even assuming that the defendant’s failure to bring a motion to disqualify the assistant district attorney during his prosecution on the aggravated burglary charge did not waive his right to assert such a claim now, the defendant has failed to demonstrate that Mr. Jacobs represented him in a “substantially related matter” and that any conflict of interest existed.

While Mr. Jacobs represented the state in the prosecution of the aggravated burglary charge, he did not prosecute the habitual offender bill. According to the minutes, he made one appearance in the habitual offender Lease when the matter was merely passed from the docket to be reset. At the hearing on the habitual offender bill, he was called by the state as a ■witness to identify the defendant as the person convicted of the offense of aggravated burglary.

Mr. Jacobs had previously made one appearance in court as the defendant’s indigent defender on the charges that ultimately resulted in the defendant’s convictions for three counts of battery of a correctional facility employee. Since Mr. Jacobs did not prosecute the habitual offender matter or give testimony against the defendant specifically pertaining to the prior felony offenses in which he represented the defendant, there was no ground for disqualifying Mr. Jacobs.

This assignment of error is meritless.

JURISDICTION

The defendant contends in a pro se assignment of error that the trial court had no jurisdiction to adjudicate the charges brought under the habitual offender bill because an order of appeal from his conviction in docket number 148,130 had been entered by the trial court. However, a trial court retains authority to adjudicate and sentence a defendant as an habitual offender after an order of appeal has been entered. State v. Hunt, 30,935 (La.App.2d Cir.2/26/98), 707 So.2d 165.

This assignment of error lacks merit.

liiCONCLUSION

We affirm the defendant’s adjudication as a third-felony offender and his sentence of life imprisonment without the benefit of parole, probation or suspension of sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

WILLIAMS and PEATROSS, JJ., would not consider as untimely.

      . Because the defendant was detained in jail at the time of these offenses, he was convicted of felonies and sentenced accordingly, pursuant to La. R.S. 14:34.5(B)(2).

      . This court affirmed the defendant’s conviction and sentence for aggravated burglary in State v. Smith, 44,011 (La.App.2d Cir.4/8/09), 7 So.3d 855, writ denied, 2009-1118 (La. 1/29/10), 25 So.3d 828.

      . Due to issues with the certification of the documents for docket number 148,130, the trial court sustained the defense’s objection to their introduction into evidence; they were proffered. Lt. Bass testified that he personally took the fingerprint impressions from the defendant found on a fingerprint card attached to an uncertified copy of the court minutes in docket number 148,130, and that they also matched the fingerprints of the defendant.

      . Pursuant to La. R.S. 14:60, the longest sentence for aggravated burglary is 30 years at hard labor.


author: MOORE, J.

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee v. Roy JACKSON, Sr., Defendant-Appellant.
    No. 45,447-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Culpepper & Carroll, PLLC, Jonesboro, LA, by Bobby L. Culpepper, for Appellant.
    Shows & Cali, LLC by E. Wade Shows, for Appellee Austin P. Clancy.
    Before GASKINS, MOORE and LOLLEY, JJ.
   MOORE, J.

__JjRoy Jackson Sr. appeals a judgment for the balance due on a retail installment contract, $17,173.89. We affirm.

Factual Background

On June 26, 2000, Jackson bought a 1999 Ford Expedition from Victoria Lincoln Mercury in Victoria, Texas. The retail installment contract stated a purchase price of $26,333.06 with no down payment, APR of 10.97%, and one payment of $31,368.91 due June 26, 2001. Ford Motor Credit (“FMC”), to whom the contract was assigned, concedes that Jackson was an employee (the credit application lists him as “dealer/operator”) of Victoria Lincoln Mercury; he also signed on behalf of the seller.

Jackson did not make the payment when due. After learning that the Expedition was in Clarksdale, Mississippi, FMC faxed Jackson a voluntary surrender form stating: “[U]nless I redeem the property it may be sold. If the sale price does not cover the balance due plus sale expenses, I will pay you or the dealer the difference.” Jackson testified that someone from Ford Motor Company (he insisted he never spoke to anyone at Ford Motor Credit) told him if he signed this, he would “owe nothing.” He signed it without reading it and faxed it back on September 26, 2001.

FMC seized the Expedition (which by then had 41,000 miles on it) and, on September 29, sent Jackson a “Notice of seizure and right to redeem,” advising that it would be sold at auction unless he paid the current balance of $32,341.34. The certified mail receipt shows that Jackson’s wife signed for the notice.

1 ?Again, Jackson made no payment. FMC sold the Expedition at an ADESA auction in October 2001 for $15,300, leaving a balance of $15,147.50. On October 13, FMC printed a “Statement of Sale” showing the original amount due, less the sale proceeds, plus the costs of sale, for a balance due of $17,495.84. The statement of sale further advised, ‘You should immediately remit the amount shown.” The statement is addressed to Jackson, but no proof of mailing is attached.

Procedural History and Action in the Trial Court

FMC filed the instant suit in June 2004, seeking the balance of $17,173.89, interest and attorney fees as provided in the contract. By answer, Jackson alleged that at the time of the purchase, he was “the dealer at Durant Ford-Lincoln-Mercury” in Durant, Oklahoma, and that the Expedition should have been placed in the dealer’s inventory instead of his personal name; that he signed the voluntary release after being “told that would end everything”; and that he simply did not owe anything.

FMC filed a motion for summary judgment which Jackson opposed with an affidavit admitting that the “Expedition was owned by appearer” but he had placed it on Durant’s used car lot; later, when he left Durant, he was unaware that he still had any ownership interest in it; and the voluntary surrender “erroneously stated that your petitioner [sic ] would be responsible for any balance.” The motion for summary judgment was denied, and the matter proceeded to bench trial in August 2009.

FMC’s only witness at trial was Ms. Tina Till, a “field service representative” who regularly testifies and presents exhibits for FMC. She |stestified that she had custody and control of the documents involved in this case, which are kept in the regular course of business. She admitted that with the exception of the initial retail installment contract, all her exhibits were computer printouts of documents that had been scanned into the company’s image retrieval system and were accessible by anyone in the company’s national recovery system. Jackson repeatedly objected to all these exhibits as improperly authenticated under La. C.E. art. 803(6); the court took it under advisement, allowing Ms. Till to testify.

Referring to the exhibits, Ms. Till testified that Jackson executed the retail installment contract, made no payments, and attempted several times, without success, to arrange refinancing. Later, he signed a surrender form, received the notice of seizure and statement of sale, and still owed $17,495.84. On cross-examination, she admitted that she had never seen a contract on these terms — one balloon payment for the whole amount — and that Jackson had been employed by the seller in some capacity, but she maintained there was no documentation that Jackson bought the Expedition to place in Victoria’s inventory.

FMC also called Jackson on cross-examination. He admitted he bought the Expedition, made no payments on it, and ultimately signed the voluntary surrender without reading it. He also testified that he did not recall signing a return receipt for the deficiency notice.

On direct examination, Jackson insisted that he sold the vehicle to Durant and placed it in their inventory; when he left Durant in May 2001, it was still sitting on the lot; he thought he had no more ownership interest in |4it; and he never talked to anyone from FMC. He admitted he had no papers to prove he sold it, as when he left Durant, all such documents belonged to the dealership. The court took the matter under advisement.

By post-trial brief, Jackson argued that FMC’s documents were not properly authenticated under C.E. art. 803(6) and that after he sold the Expedition to Durant, he had no further liability. He also contended, for the first time, that the act of voluntary surrender was invalid because it did not comply with La. R.S. 10:9-620. FMC responded that it fully complied by sending Jackson the notice of seizure and statement of sale. It reiterated that authentication was proper under Art. 803(6) and that Jackson simply failed to prove the vehicle was dealer inventory.

By written reasons for ruling, the court found that Ms. Till had sufficient familiarity with the record-keeping system of the company to satisfy the foundational requirements of Art. 803(6); hence, the documents were admissible. The court further found that after Jackson failed to pay, FMC complied with § 9-620 by sending him the notice of seizure and the statement of sale, and that Jackson was bound by the terms of the voluntary surrender even if he did not read it. Finally, the court rejected Jackson’s other factual claims as not credible. The court rendered judgment in favor of FMC for $17,173.89, plus interest and attorney fees as stated in the installment contract.

Jackson filed a motion for new trial which was rejected after a hearing. He now appeals, raising three assignments of error.

15Discussion: Lack of Authentication

By his first assignment of error, Jackson urges the court erred as a matter of law in admitting FMC’s exhibits. He argues that Ms. Till did not prepare any of the records; she testified as to things “to which she would have had no way of having any knowledge”; and, because any person employed by FMC could access these records, “how she could qualify as the custodian is beyond the writer.” Citing the comments to Art. 803(6), he argues that the records were “merely oral” and that Ms. Till lacked “first hand knowledge” of them. Finally, he cites two criminal cases in which computer printouts were held inadmissible because the person offering them lacked sufficient knowledge. State v. Bonit, 2005-0795 (La.App. 1 Cir. 2/10/96), 928 So.2d 633, writ denied, 2006-1211 (La.3/16/07), 952 So.2d 688; State v. Smith, 2004-0800 (La.App. 1 Cir. 12/17/04), 897 So.2d 710.

FMC responds that Art. 803(6) does not require the witness to be the person who prepared the records; she need only have familiarity with the record-keeping system of the company. State v. Marston, 2000-0589 (La.3/16/01), 780 So.2d 1058; S. Jackson & Son Inc. v. Aljoma Lumber Inc., 93-2531 (La.App. 4 Cir. 5/26/94), 637 So.2d 1311. It submits that the statute was drafted to allow evidence to be introduced while coping with the intricacies of record keeping using modern technology. State v. Gordy, 2007-1032 (La.App. 3 Cir. 3/12/08), 981 So.2d 45. It urges there was no evidence to show that the digitized documents were inaccurate, and the | (¡court did not abuse its discretion in admitting them.

Article 803(6) provides in pertinent part:

Art. 803. Hearsay exceptions; availability of declarant immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or other data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, * * * if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. * * *

As noted above, Ms. Till testified that although she did not personally prepare the documents, she had knowledge of how the records were kept, that they were kept in the regular course of FMC’s business, that they were furnished by a person who regularly kept such records for FMC, and that they were made at or near the time of the transaction. On this showing, the court was clearly entitled to find Ms. Till was a “qualified person” under Art. 803(6). State v. Marston, supra; State v. Gordy, supra. Moreover, the fact that various persons at various locations may have entered Jackson’s data into the system does not defeat their admissibility if they otherwise satisfy the article. National Information Services v. Gottsegen, 98-528 (La.App. 5 Cir. 6/1/99), 737 So.2d 909, writ denied, 99-2366 (La.10/8/99), 751 So.2d 228. Notably, there was no showing that anyone in the system had |7altered any of Jackson’s documents, of which he admitted signing two and receiving one other; nothing indicates a lack of trustworthiness.

Jackson’s final argument, that the records are “merely oral,” is completely baseless. The article allows storage of data “in any form,” which obviously includes FMC’s method of scanning papers into an electronic form (presumably a PDF file), entering it into the company’s database, viewing it and printing it when needed. The quaint image of the file cabinet, records clerk and dust mites may have dropped from the equation, but electronic documents that satisfy Art. 803(6) have the same evidentiary value as their more tangible predecessors.

This assignment of error lacks merit.

Lack of Compliance with Statute

By his second assignment of error, Jackson urges the court erred as a matter of law in finding that FMC complied with R.S. 10:9-620. He argues that contrary to subsection (a), he never consented to the acceptance as required by subsection (c), which requires a “record authenticated after default.” He further argues that the voluntary surrender and statement of sale violate all provisions of subsection (h): they failed to advise him that he would still owe the deficiency even though the secured party accepts the collateral and reduces the debt; they did not state the amount of the deficiency; they did not explain how the deficiency was calculated; and they did not explain how other charges might affect the deficiency. Jackson concedes that there is no Louisiana caselaw interpreting § 9-620 but argues that it should be strictly construed, namely that the several writings offered | sby FMC do not satisfy the requirement of a writing, and result in noncomplianee.

FMC responds that the voluntary surrender, which it faxed to Jackson, satisfied the requirement of consent under subsection (a), and that Jackson’s signature on it constituted authentication under subsection (c). It further argues that the notice of seizure-curiously omitted from Jackson’s brief-satisfied subsection (h). Finally, it cites subsection (j) as refuting the claim for strict construction.

The statute, R.S. 10:9-620, is adapted from the Uniform Commercial Code and governs the procedure by which the secured party (creditor) acquires the debt- or’s interest in the collateral without the need for a sale or other disposition by “strict foreclosure.” Id., UCC Comment 2. As it pertains to this case, the statute provides:

§ 9-620. Acceptance of collateral in full or partial satisfaction of obligation; compulsory disposition of collateral
(a) Conditions to acceptance in satisfaction. A secured party may accept collateral in full or partial satisfaction of the obligation it secures only if:
(1)the debtor consents to the acceptance under subsection (c); * * *
(c) Debtor’s consent. For purposes of this section:
(1) a debtor consents to an acceptance of collateral in partial satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default; $ ‡ ‡
(h) Compliance with mandatory disposition requirement. In a consumer transaction in which a secured party accepts collateral in partial satisfaction of the obligation it secures, the terms agreed to by the debtor under subsection | n(c)(l) shall include a writing that:
(1) states that the debtor will still owe the deficiency even though the secured party accepts the collateral and reduces the debt;
(2) states the amount of the deficiency;
(3) provides an explanation * * * of how the secured party calculated the deficiency; and
(4) states, if applicable, that future debits, credits, charges, including additional credit service charges or interest, rebates, and expenses may affect the amount of the deficiency.
(j) Substantial compliance. A particular phrasing of the explanation is not required. An explanation complying substantially with the requirements of subsection (h) is sufficient, even if it includes minor errors that are not seriously misleading.

Jackson’s first contention, that he never consented to the acceptance, is without merit. He candidly admitted signing (without reading) the voluntary surrender, an act of consent to the acceptance under subsection (a). The faxed document is a record under R.S. 10:9-102(a)(69), as it is “information that is inscribed on a tangible medium”; authentication was accomplished by signing it under R.S. 10:9-102(a)(7)(A). In re Grubbs Const. Co., 328 B.R. 873 (Bankr.M.D.Fla.2005). Moreover, he signed it after he defaulted on the principal obligation. The record shows full compliance with subsection (a) and (c).

Jackson’s claims based on subsection (h) are equally unavailing. The voluntary surrender stated, “If the sale price does not cover the balance due plus sale expenses, I will pay you or the dealer the difference,” plainly satisfying subsection (h)(l)’s requirement of a writing stating that the debtor | in“will still owe the deficiency even though the secured party accepts the collateral and reduces the debt.” The statement of sale listed the gross balance owing on the contract, deducted the gross proceeds of the sale, and added the expenses of retaking and storing, to yield a deficiency of $17,495.84. This plainly states the amount of deficiency and explains how it was calculated, as required by subsection (h)(2) and (3). No future debits, credits or charges have been alleged, so subsection (h)(4) is inapplicable.

The only arguable portion of Jackson’s argument is the claim that “a writing”— not multiple writings — must include all the information listed in subsection (h). This subsection is not part of the model UCC § 9-620, but was engrafted from UCC § 9-616 when Louisiana adopted Chapter 9 in 2001. James A. Stuckey, Louisiana’s Non-Uniform Variations in U.C.C. Chapter 9, 62 La. L.Rev. 793, 864 (2002). The source section, UCC § 9-616, requires the secured party to explain how a surplus or deficiency was calculated, after a disposition; Louisiana’s redaction of it, R.S. 10:9— 620(h)(1), added the requirement of notice that the debtor “will still owe the deficiency,” information that obviously comes before the disposition. In our view, it would be factually impossible for the secured party to provide both pre- and post disposition information in one single writing. To require, as Jackson suggests, “one writing,” would negate the effects of R.S. 10:9-620. We therefore decline to accept his proposed reading, and hold instead that one writing may satisfy the pre-disposition notice of subsection (h)(1) and one different writing may satisfy the post-disposition notice of subsection (h)(2), (3) and (4).

|nThis conclusion draws further support from the substantial compliance provision of subsection (j). FMC’s documents provided all the essential information required by subsection (h), with nothing that could have seriously misled Jackson. The fact that it did so in multiple documents does not, in this case, defeat its compliance with subsection (h).

This assignment of error lacks merit.

Manifest Eiror Claims

By his third assignment of error, Jackson urges the court erred as a matter of law in finding that FMC proved its case and was entitled to judgment. Jackson reiterates his own version of events, including his contention that somebody at Ford Motor Company told him that if he signed the voluntary surrender, he would have no further obligation; that he had transferred the Expedition to Durant’s inventory, and had no interest in it; and, contrary to Ms. Till’s testimony, he never communicated with FMC about refinancing, proving that both sides knew he had no further liability. He concludes that because nobody contradicted his testimony, the court erred in rejecting it.

FMC responds that even taking his testimony at face value, Jackson admitted signing the retail installment contract, making no payments, and signing the voluntary surrender; these facts will support the judgment. FMC concludes the court did not abuse its discretion in dismissing his account as incredible.

In reviewing the factual findings of a trial court, we are limited to a determination of manifest error. Fontenot v. Patterson Ins. Co., 2009-0669 112(La.10/20/09), 23 So.3d 259, and citations therein. It is well settled that an appellate court may not disturb the district court’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Id. The issue to be resolved it not whether the factfinder was right or wrong, but whether its conclusion is reasonable. Id.

Some of Jackson’s account is undoubtedly true: he was the dealer at Victoria Lincoln Mercury, signing the retail installment contract in that capacity; only a dealer would likely get a loan with one lump-sum payment due in one year. He admitted not making that lump-sum payment, or any other payments, and then signing (without reading) the voluntary surrender-points corroborated by Ms. Till.

Important parts of his testimony, however, are contradicted by FMC’s records. Contrary to his claim that nobody from FMC ever talked to him, the contact history report shows that FMC agents called him several times in September and October 2001 to discuss refinancing, a circumstance that confirms that he still owed the debt. He also claimed that somebody told him that signing the voluntary surrender would end his obligation, but the document itself refutes this. On the crucial claim that this Expedition was actually intended as inventory for Victoria, and later sold to Durant, there was absolutely no corroboration. Surely on a matter of such importance, a dealer would have retained copies of these vital papers even if the originals belonged to the dealership and remained there after he left. In effect, Jackson asserted his own poor record keeping as a defense to this claim.

11sOn this record, the district court did not abuse its discretion in finding that Jackson’s version of events was not credible. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellant, Roy Jackson Sr.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Jackson cites a third criminal case, State v. Gordy, infra, for the same proposition, but a cursory reading of Gordy reveals that it found the computer printout to be admissible, a holding diametrically opposed to Jackson's argument.


author: PETTIGREW, J.

text:
    Edna GORDON, Lillie Davis, Arthur Laneheart, Mary Williams, John B. Williams, Robert Williams, Lester Williams, Ernest Laneheart, Helen Williams, and Patrice Dixon, Kevin Dixon, and Benny Ray Dixon, on behalf of their Deceased Mother, Patricia Dixon, and Ann Lacey, Kathleen Hollins, Arlene Scott, Carolyn Dixon, Idella Dixon, Gloria Johnson, Rufus Dixon Jr., and Michael Dixon, on behalf of their Deceased Mother, Pearl Dixon, the children and representatives of the Deceased Children of Helen Williams v. POINTE COUPEE HEALTH SERVICE DISTRICT ONE d/b/a Pointe Coupee General Hospital.
    No. 2009 CA 2202.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 11, 2010.

      Mark D. Plaisance, Baker, LA, Keelus Miles, Baton Rouge, LA, for Plaintiffs-Appellants, Edna Gordon et al.
    Adrien G. Busekist, Kevin P. Riché, Baton Rouge, LA, for Defendant-Appellee, Pointe Coupee Health Service District One d/b/a Pointe Coupee General Hospital.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

12In this survival and wrongful death action plaintiffs contend their decedent, while a patient at the defendant hospital, died following an evacuation of said hospital and eventual transfer to another facility. Plaintiffs further contend decedent, an oxygen recipient, allegedly died due to the hospital’s negligent failure to properly provide oxygen during and following the evacuation of its facility. The hospital, a qualified health care provider, responded with the filing of a dilatory exception raising the objection of prematurity and asserted that plaintiffs were required by law to submit their claims to a medical review panel. From a judgment maintaining the exception, plaintiffs have appealed.

FACTS

On February 17, 2008, Helen Williams was a non-ambulatory patient receiving oxygen at Pointe Coupee General Hospital (“PCGH”), in New Roads, Louisiana. At approximately 6 a.m., a nurse at PCGH smelled smoke, and upon going to investigate, noticed smoke emanating from a piece of equipment in the radiology department located on the hospital’s ground floor. Sprinkler systems were activated, and the fire department was summoned.

When the fire department arrived at approximately 6:15 a.m., the hospital’s sprinkler system had already extinguished the fire. The fire was confined to the radiology department and never reached the second floor patient area; however, in the minutes following the discovery of the fire, nurses, in an abundance of caution, decided to move patients to the east side of the hospital behind the fire doors.

After the fire had been extinguished, the decision was made to evacuate the hospital patients to an adjacent building pending an inspection by the Fire Marshall. At this point, physicians discussed which patients could be discharged, and which patients required care at a local nursing home. Ms. Williams was ultimately transported to Lakeview Nursing Home in New Roads, Louisiana, where she died later that day.

PACTION OF THE TRIAL COURT

Following Ms. Williams’ death, her children and grandchildren (hereinafter, “plaintiffs”) filed the instant litigation in the 18th Judicial District Court alleging (1) that but for the negligence of PCGH in failing to properly provide oxygen to Ms. Williams, she would not have die d; (2) that PCGH should have provided oxygen for Ms. Williams as she waited in the hallway, once she was removed from the hospital, and certainly well before she was transported to the nursing home; and (3) that plaintiffs’ claim is grounded in general negligence (tort) and not medical malpractice, and therefore submission of the matter to a medical review panel is unnecessary.

In response to plaintiffs’ claim, PCGH filed a dilatory exception raising the objection of prematurity asserting that the claims set forth in plaintiffs’ petition are allegations of medical malpractice that must be submitted to a Medical Review Panel prior to the filing of a lawsuit in accordance with the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (“LMMA”).

Thereafter, plaintiffs filed their First Supplement Petition wherein they added three additional allegations (1) that the proximate cause of Ms. Williams’ death was PCGH’s failure to formulate and implement a quick and efficient plan for the evacuation of patients, particularly those on oxygen; (2) that PCGH failed to have a facility available for the transfer of patients in the event of a mandatory evacuation; and (3) that PCGH failed to design, construct, or maintain a facility in such a manner as to provide oxygen to patients being evacuated during an emergency.

On August 11, 2009, a hearing was conducted on the exception filed by PCGH. At the hearing, PCGH called Elaine Hurme, director of nurses at PCGH, who testified regarding procedures at PCGH as well as the events on the day of the fire. Ms. Hurme did not testify regarding Ms. Williams’ medical condition other than to confirm that Ms. Williams was non-ambulatory, bed-bound, and was transported out of the hospital during the evacuation process.

After listening to Ms. Hurme, and the arguments put forth by counsel, the trial court maintained PCGH’s exception as to prematurity and dismissed plaintiffs’ suit without 14prejudice finding that the LMMA requires that this matter be considered by a medical review panel before suit is filed.

From this judgment, plaintiffs have appealed.

ISSUE PRESENTED ON APPEAL

In connection with their appeal in this matter, plaintiffs put forth the following issue for consideration by this court:

1. Whether a hospital’s alleged inability during a fire to properly and quickly evacuate a patient, and failure to provide oxygen to a patient who requires oxygen, constitutes medical malpractice and falls within the provisions of the LMMA?

STANDARD OF REVIEW

As the facts are not disputed with respect to this appeal, the issue before this court is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect. Dunn v. Bryant, 96-1765, p. 4 (La.App. 1 Cir. 9/19/97), 701 So.2d 696, 698-699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action rather than defeat it. La.Code Civ. P. arts. 923 and 926. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La.Code Civ. P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Houghton v. Our Lady of the Lake Hosp. Inc., 03-0135, p. 5 (La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Evidence may be introduced to support or controvert the exception, when the grounds do not appear from the petition. La.Code Civ. P. art. 930. The objection of prematurity raises the issue of whether the juridical cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166, p. 4 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The objection contemplates that the action was brought prior to some procedure or assigned time, and is usually utilized in | Scases where the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. Plaisance v. Davis, 03-0767, p. 6 (La.App. 1 Cir. 11/7/03), 868 So.2d 711, 716, writ denied, 03-3362 (La.2/13/04), 867 So.2d 699.

Pursuant to the LMMA, all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. See La. R.S. 40:1299.47(A)(1). No civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the LMMA. See La. R.S. 40:1299.47(B)(l)(a)(i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Boone v. State, through the Dep’t. of Health and Hosp., 97-321 p. 2 (La.App. 3 Cir. 3/6/98), 709 So.2d 300, 300, writ denied, 98-0945 (La.5/15/98), 719 So.2d 468.

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. If a lawsuit against a health care provider covered by the LMMA has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant’s suit must be dismissed. Dunn, 96-1765 at 5, 701 So.2d at 699. The burden of proving prematurity is on the exceptor, in this case PCGH, who must show that it is entitled to a medical review panel because the allegations fall within the LMMA.

In its opinion in LaCoste v. Pendleton Methodist Hospital, L.L.C., 07-0008, p. 6 (La.9/5/07), 966 So.2d 519, 524, our supreme court, citing Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315, emphasized again that the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice,” and that all other tort liability on the part of the qualified health care provider is governed by general tort law. In LaCoste, the supreme 16court repeated its oft stated precept that the LMMA’s limitations on the liability of health care providers for medical malpractice were created by special legislation in derogation of the rights of tort victims. LaCoste, 07-0008 at 7, 966 at 524. Accordingly, any ambiguity should be resolved in favor of the victim and against finding that the tort alleged sounds in medical malpractice. The limitations of the LMMA, therefore, apply strictly to cases of malpractice as defined in the LMMA. Id.

Pursuant to the LMMA, “malpractice” is defined as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient. La. R.S. 40:1299.41(A)(13).

The LMMA further defines “tort” and “health care” as follows:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.
La. R.S. 40:1299.41(A)(22) (emphasis supplied).
“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components. La. R.S. 40:1299.41(A)(9).

In its opinion in Coleman, 01-1517 at 17-18, 813 So.2d at 315-316, our supreme court set forth six (6) factors to assist a court in determining whether a claim sounds in medical malpractice and must first be presented to a medical review panel. The supreme court utilized these factors again in its opinion in LaCoste, 07-0008 at 8, 966 So.2d at 524-525. Said factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
|7(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

In the instant case, PCGH has the burden of proof as the exceptor. PCGH relies on the allegations as set forth in the plaintiffs’ original and first supplemental petition, the testimony of Ms. Elaine Hurme, director of nurses at PCGH, and a certified copy of PCGH’s certificate of enrollment in the Patient’s Compensation Fund. Accordingly, we must apply the Coleman factors to the evidence before us, and upon doing so, we conclude that the claims as asserted in the plaintiffs’ original and. supplemental petition fall within the purview of the LMMA, and thus the trial court properly sustained PCGH’s exception as to prematurity and dismissed plaintiffs’ lawsuit.

(i) Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill

Plaintiffs have alleged seven (7) negligent acts by PCGH, namely, (1) that as a result of a fire, when personnel at PCGH removed Ms. Williams from her room and placed her in the hallway to await evacuation, it failed to provide her with oxygen, although she was short-winded and in distress; (2) that after Ms. Williams was moved from the hospital to an outside building to await transportation, PCGH personnel again failed to provide Ms. Williams with oxygen; (3) that when PCGH personnel finally located an oxygen tank for Ms. Williams, said tank was empty; (4) that the cause of Ms. Williams’ death was PCGH’s failure to have in place and implement an efficient evacuation plan, particularly for those persons who required oxygen; (5) that PCGH failed to have a facility on site or a facility available in which to transfer patients in the event of a mandatory evacuation; (6) that PCGH failed to have a protocol for evacuating patients; and (7) that PCGH failed to design, construct, or maintain a facility in such a manner to have oxygen readily available for patients being evacuated during an emergency.

lain their brief to this court, plaintiffs claim the aforementioned acts do not result from the dereliction of any professional skill that is treatment related and as such do not require expert medical evidence to determine whether the appropriate standard of care was breached. Plaintiffs further claim no professional skill or licensing is required of a hospital to implement evacuation procedures that include the availability of oxygen.

PCGH responds with the argument the plaintiffs’ petition for damages “undeniably alleges that [Ms. Williams’] death was caused by a failure to render medical treatment as the result of a deficiency in medical skill, namely the failure to properly provide oxygen.” PCGH further asserts “[c]ommon sense indicates that a claim based on failure to provide enough treatment is clearly linked to treatment”, citing Coleman, 01-1517 at 22, 813 So.2d at 318. PCGH argues that the allegations contained in the original and amended petitions filed by the plaintiffs fail to allege that the unavailability of oxygen resulted from structural or electrical flaws of the hospital or its evacuation procedures. On the contrary, PCGH asserts that plaintiffs’ original petition alleges that oxygen was available and that the staff at PCGH failed to administer it properly and timely.

(ii) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached

In their brief to this court, plaintiffs urge that the instant facts “are sufficiently similar to those [presented] in LaCoste to support the conclusion that this case does not fall under the [L]MMA.” In LaCoste, our supreme court held that a hospital’s failure to provide life support to a patient who died following Hurricane Katrina was the result of structural/electrical failure of the facility and/or evacuation plan failures rather than a deficiency in professional medical skill. Accordingly, the supreme court concluded the claims as alleged in LaCoste did not fall within the provisions of the LMMA. Lacoste, 07-0008 at 16, 966 So.2d at 529.

PCGH points out in response that in LaCoste, the plaintiffs alleged a failure of the defendant hospital’s electrical supply. The plaintiffs in the instant case do not allege a failure of the oxygen supply to Ms. Williams, but rather that PCGH failed to “properly provide oxygen” to Ms. Williams thereby causing her death. PCGH avers such allegations 19will require expert medical testimony as to whether oxygen was properly or improperly provided to Ms. Williams as well as expert medical testimony regarding whether the alleged failure to properly provide oxygen caused Ms. Williams’ death.

(iii) Whether the pertinent act or omission involved assessment of the patient’s condition

Plaintiffs contend the proper evacuation of individuals from a hospital involves a consideration of actions and inactions that are best testified to by experts in fire prevention and evacuation, not by doctors and nurses. Plaintiffs further contend a medical expert is not necessary to determine whether a hospital patient who is continually receiving oxygen should continue to require oxygen during an evacuation. According to plaintiffs, the failure of PCGH does not stem from the lack of an assessment of Ms. Williams’ condition, but rather from the lack of an efficient evacuation plan that insured patients who were on oxygen continued to receive oxygen during the evacuation.

In response, PCGH relies upon the hearing testimony of Ms. Elaine Hurme, director of nurses at PCGH. Ms. Hurme testified that on the day of the fire, patients at PCGH were evacuated and transferred based upon decisions made by medical personnel after consideration of the overall condition of the patient. Patients who were ambulatory wei-e evacuated first followed by non-ambulatory bed-bound patients such as Ms. Williams.

(iv) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform

In addressing the fourth criterion set forth in Coleman, plaintiffs claim that the allegations set forth herein do not claim a breach of duty in the context of a physician-patient relationship, but rather a failure to provide oxygen during an evacuation, a situation that plaintiffs claim is not part of normal medical care. Conversely, PCGH asserts that providing a patient with oxygen and evacuating said patient during an emergency clearly involves a patient-health care provider relationship and is within the scope of foreseeable activities expected of a hospital.

| in(v) Whether the injury would have occurred if the patient had not sought treatment

Plaintiffs in this matter clearly allege that Ms. Williams’ death was a direct result of improperly providing Ms. Williams with oxygen during her evacuation from PCGH. It cannot be disputed that the allegations made by the plaintiffs in this matter are directly related to the treatment of Ms. Williams at PCGH.

(vi) Whether the tort alleged was intentional

The parties do not address the final Coleman criterion as all allegations made by plaintiffs are of negligence, including professional negligence.

Accordingly, utilizing the factors set forth in Coleman we have applied the LMMA’s definition of medical malpractice to the facts alleged and the evidence presented, and conclude that plaintiffs’ claims fall within the LMMA and therefore must first be presented to a medical review panel pursuant to the procedures outlined by the LMMA. Until such time as plaintiffs’ complaints are properly reviewed by a medical review panel, the present litigation is premature. The trial court correctly sustained PCGH’s dilatory exception raising the objection of prematurity.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment dismissing plaintiffs’ suit against Pointe Coupee General Hospital -without prejudice. All costs associated with this appeal are assessed against plaintiffs.

AFFIRMED.

CARTER, C.J., concurs.