author: SUSAN M. CHEHARDY, Judge.

text:
    Rock P. KAMPMANN v. Dr. Helen MASON and Josephine Hambacher.
    No. 08-CA-508.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Writ Denied April 3, 2009.

      Cheryl Ann McAnespy-Smith, Harvey, LA, for Plaintiff/Appellant, Rock P. Kamp-mann.
    Stanton E. Shuler, Jr., Laura Fajoni, Bartlett Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellee, Mutual Pharmaceutical Corporation.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2This is a personal injury lawsuit in which the plaintiff seeks reversal of a judgment that found his claims against one of the defendants prescribed. We affirm.

FACTS

According to the pleadings, in August 1998 Rock P. Kampmann sought treatment from West Jefferson Mental Health Clinic for depression, suicidal thoughts, inability to control his emotions, and alcohol abuse. On August 20, 1998 he was seen by Dr. Helen Mason, who prescribed Zoloft for depression and Trazodone for sleep. Mr. Kampmann filled the prescriptions at the West Jefferson Mental Health Clinic’s pharmacy the same day and took the medications as prescribed, including taking one tablet of Trazodone 30 minutes before bedtime. Mr. Kampmann was not informed by either the doctor or the pharmacist that priapism is a side effect of Trazodone.

On the morning of September 1, 1998, Mr. Kampmann awoke with an erection that persisted throughout that day and during the night. By the next day his penis was painful and stiff; it appeared white, then bluish, and was cold to the touch. On September 2, 1998 he went to the emergency room of a nearby hospital, |sand later to another hospital. He was diagnosed as having Trazodone-induced priapism.

Mr. Kampmann was hospitalized for 13 days, and ultimately underwent four emergency procedures. He sustained a hernia as a result of one procedure, and eventually underwent surgery for a penile implant. The surgery caused additional damage to his penis. Mr. Kampmann was 41 years old at the time he first experienced the priapism.

On March 30, 1999 Mr. Kampmann filed a complaint with the Patients’ Compensation Fund (“PCF”) against Dr. Helen Mason, a psychiatrist, and Josephine Ham-bacher, a pharmacist, asserting they were negligent in their treatment of him. He requested a medical review panel.

On February 5, 2003 the medical review panel rendered its opinion, finding the evidence did not support the conclusion that the Ms. Hambacher failed to meet the applicable standard of care as charged in the complaint, or that Dr. Mason failed to meet the applicable standard of care on the issue of prescribing Trazodone. The panel found, however, “there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court, as to whether Mr. Kampmann was informed of the risk of priapism by Dr. Mason.” Counsel for Mr. Kampmann received the medical review panel’s opinion on February 7, 2003.

On March 18, 2003 Mr. Kampmann filed suit against Dr. Mason and Ms. Hambacher for medical malpractice and negligence. Mr. Kampmann asserted he was left with pain, scarring, disfigurement, and permanent injury to his penis. He sought recovery for physical pain and suffering, mental anguish and emotional distress, severe trauma and damage to his body, and various economic losses.

|4On August 4, 2003, Mr. Kampmann filed a First Supplemental and Amending Petition adding as a defendant Sidmak Laboratories, Inc. (“Sidmak”), alleged to be the manufacturer of the Trazodone he took. He alleged that Trazodone was unreasonably dangerous because an adequate warning had not been provided to doctors and pharmacies; the warning fails to clearly and unambiguously notify the prescribing physicians and/or pharmacist of a particular adverse reaction and/or side effect. He alleged that Sidmak failed to reasonably inform prescribing physicians and/or pharmacists of the dangers of harm from such drugs despite its knowledge thereof and its decision to revise its package inserts and warnings to specifically identify priapism. He asserted the warning provided to him did not advise or lead him to contemplate the danger of this side effect and to either use it safely by instruction as to what to do in the event of the side effect or to decline to use it. He alleged that Mason, Hambacher, and Sidmak are joint tortfeasors.

Sidmak twice sought to be dismissed from the suit via motions for summary-judgment, asserting its warning of the side effects of Trazodone was adequate, but was unsuccessful. The trial court granted summary judgment on Sidmak’s first motion, but that was reversed on appeal. Kampmann v. Mason, 05-423, pp. 7-8 (La.App. 5 Cir. 1/17/06), 921 So.2d 1093, 1096. Sidmak later filed a second motion for summary judgment on the same ground, but the trial court denied summary judgment on the basis the affidavits provided did not address dissemination of the warning to prescribing physicians, and Sidmak had failed to offer any evidence to show it made a reasonable attempt to notify the plaintiffs doctor of the risk of priapism associated with Trazodone.

On May 17, 2007 Sidmak filed a third Motion for Summary Judgment, this time seeking dismissal on the ground that it was not the manufacturer of the | sTrazodone the plaintiff took in August 1998 that allegedly caused his priapism and the resulting damages. Rather, the inscriptions on the pills produced by the plaintiff as exhibits (“MP 114”) indicate the tablets were sold and manufactured by United Research Laboratories a/k/a Mutual Pharmaceutical Company.

As a result of Sidmak’s information, on June 29, 2007 the plaintiff filed a Third Supplemental and Amending Petition. He alleged he had recently discovered that Mutual Pharmaceutical Company, Inc. (hereafter “Mutual”) is a joint tortfeasor and he wished to substitute Mutual in place of Sidmak Laboratories, Inc. as defendant in all of the preceding pleadings. He reiterated and re-alleged against Mutual all the allegations made in the prior pleadings. On the same date, the district court rendered judgment granting summary judgment in favor of Sidmak.

Mutual filed an Exception of Prescription, in which it asserted any claims against it had prescribed. Mutual asserted that the plaintiff had one year from the date of injury or, alternatively, 90 days from the date the medical review panel issued its opinion in which to file suit against Mutual. Because Mutual was not named a defendant until June 29, 2007, Mutual asserted the claims against it are prescribed.

After a hearing on the exception of prescription, at which neither party introduced any evidence, the district court granted the exception. In written reasons incorporated in the judgment, the court concluded Mutual is not a health care provider subject to the Medical Malpractice Act but, pursuant to La.R.S. 40:1299.47(A)(2)(a), prescription was suspended against Mutual only for 90 days following notification of Mr. Kampmann of the medical review panel’s decision. | (jThus, the court found, the plaintiff had until October 2003 to file suit against any alleged joint tortfeasor, but his suit was not amended to name Mutual as a defendant until June 29, 2007. The court also found that Mr. Kampmann reasonably could have obtained the identity of the correct manufacturer prior to learning the identity from Sidmak. Based on those facts, the court granted the exception of prescription.

On November 5, 2007 the district court rendered a partial final judgment that dismissed Mutual from the lawsuit. The plaintiff seeks review.

ASSIGNMENTS OF ERROR

On appeal Mr. Kampmann raises the following assignments of error (quoted verbatim from the appellant’s brief):

1. The District Court was manifestly erroneous in granting a non health care provider the opportunity to bootleg into the immunities and advantages intended for and extended solely to health care providers.
2. The District Court was manifestly erroneous in ruling in a manner which would prejudice defendant State of Louisiana and its people when the limiting rules in the LMMA and LRS 9:5628 were designed to benefit them.
3. The District Court was manifestly erroneous in not reading the LMMA, LRS 9:5628, and general co-dal authority in context with each other.
4. The District Court was manifestly erroneous in not rendering a decision which was fair, just, and logical and which could be used in future decisions to produce such results.

The plaintiff asserts the harm he suffered was caused by all the defendants collectively, making them joint tortfeasors. Specifically, Dr. Mason, his treating physician, failed to inform him of the side effects of the drug she prescribed; Ms. Hambacher, the pharmacist who filled the prescription, failed to provide an 17adequate warning that included the exact type of harm from which he suffered; Mutual, the manufacturer of the drug, failed to provide an adequate warning to learned intermediaries, including the treating physician, that the drug could cause the exact type of harm suffered by the plaintiff.

The plaintiff asserts that on September 20, 2001 he forwarded interrogatories to defendants West Jefferson Mental Health Center and Dr. Mason, in which he requested the name and contact information of the manufacturer(s) of the drug known as Trazodone, dispensed by Region Ten Pharmacy and prescribed by Dr. Mason to the plaintiff in August 1998. The defendants responded to the interrogatory on October 22, 2001, stating the brand of Tra-zodone dispensed to the plaintiff was manufactured by Sidmak Laboratories, Inc. Relying on that information, the plaintiff amended his original petition to name Sid-mak defendant as the manufacturer of the drug. In opposition to the determination of prescription, therefore, the plaintiff asserts the doctrine of contra non valentum applies.

The plaintiff contends he was prevented from suing the proper drug company because the defendant health care providers who prescribed the medication and filled the prescription gave him the name of the wrong drug manufacturer as the source of the drug that caused harm to the plaintiff. He points out that the initial defendant, Sidmak, litigated this case for several years before it discovered it was not the manufacturer of the particular drug at issue.

In opposition to the appeal, Mutual asserts that the claim against it was prescribed on its face when the third amending and supplemental petition naming it a defendant was filed. Specifically, the plaintiff did not file his complaint against the health care providers with the Patients’ Compensation Fund until April 1, 1999, 211 days after he was diagnosed with Trazodone-induced priapism. The medical review panel’s opinion was sent to counsel for plaintiff via certified mail on | ^February 6, 2003, and counsel received it on February 7, 2003. The lawsuit was filed on March 18, 2008, against Mason and Hambacher only. The first amended and supplemental petition, naming Sidmak Laboratories, Inc. as manufacturer, as filed on August 8, 2003.

On May 1, 2007, during the plaintiffs deposition, counsel for Sidmak first inspected the bottle of Trazodone pills in plaintiffs possession. On visual inspection Sidmak’s representatives realized those pills had not been manufactured by Sid-mak, because they differed in the marking on the faces of the tablets. Within two weeks Sidmak filed the motion for summary judgment on which it was eventually dismissed from the lawsuit.

LAW AND ANALYSIS

“Delictual actions under Louisiana law generally prescribe within one year of the date the injuries or damage was sustained. La.C.C. art. 3492.” Denoux v. Vessel Management Services, Inc., 2007-2143, p. 5 (La.5/21/08), 983 So.2d 84, 88.

The burden of proof on an exception of prescription initially lies with the party asserting it, but the burden shifts to the plaintiff if it is apparent from the face of the petition that his claims are prescribed. Mallett v. McNeal, 05-2289, p. 5 (La.10/17/06), 939 So.2d 1254,1258.

Although Mutual is not a health care provider subject to the Louisiana Medical Malpractice Act (“LMMA”), LMMA provides that the running of prescription is suspended during proceedings before a medical review panel, not only for qualified health care providers but also for any parties solidarity or jointly liable. La.R.S. 40:1299.47. The suspension ends ninety days after the claimant is notified of the medical review panel’s decision:

| ¡)The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, ... until ninety days following notification, by certified mail, ... to the claimant or his attorney of the issuance of the opinion by the medical review panel.... The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obli-gors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review. [Emphasis added.]

La.R.S. 40:1299.47(2)(a). Thus, the suspension of prescription provided under the LMMA applies not only to health care providers, but also to any joint or solidary tortfeasors.

“The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension.” La.C.C. art. 3472.

When the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to count the period of time that remains unused at the time the request for a medical review panel is filed. Guitreau v. Kucharchuk, 1999-2570, p. 1 (La.5/16/00), 763 So.2d 575, 576. “[W]hen the ninety day period expires, the period of suspension terminates and prescription commences to run again. Once prescription begins to run again, counting begins at the point at which the suspension period originally began.” Guitreau, 1999-2570 at 6, 768 So.2d at 579.

So long as a medical malpractice suit is timely filed as to a qualified health care provider, it will be timely filed as to a non-qualified health care provider if they are joint or solidary obligors. Williams v. Northgate Hosp., 1998-1477 |10(La.App. 3 Cir. 5/5/99), 734 So.2d 1251, writ denied, 1999-1588 (La.9/17/99), 747 So.2d 565.

Although a medical malpractice suit against one solidary obligor interrupts prescription as to other solidary obligors, prescription cannot be interrupted once it has accrued. Tuazon v. Eisenhardt, 98-666 (La.App. 5 Cir. 12/16/98), 725 So.2d 553, writ denied, 1999-0144 (La.3/12/99), 739 So.2d 209.

In this case, prescription began running on September 2, 1998, when Mr. Kamp-mann was diagnosed with priapism. His medical review panel request was filed 211 days later, leaving 154 days still to run on prescription. The opinion of the medical review panel was issued on February 5, 2003, and sent to the plaintiffs counsel by certified mail that date. Prescription was suspended, therefore, for another 90 days, or until May 6, 2003. The remainder of the one-year period expired on or about October 7, 2003. Mr. Kampmann did not amend his petition to name Mutual until June 29, 2007.

Although the petition was amended to name Sidmak in August 2003, due to Sid-mak’s dismissal from the suit Mutual cannot be considered a joint tortfeasor. Hence, the filing of suit against Sidmak cannot work in the plaintiffs favor.

In an ordinary tort suit not subject to the LMMA, filing of suit against one joint tortfeasor interrupts prescription as to other joint tortfeasors, and serves as a continuing interruption during the pen-dency of the suit. La.C.C. arts. 2324(C), 3462, 3463. However, “the specific provisions of the Medical Malpractice Act regarding the suspension of prescription against joint tortfeasors apply to the exclusion of the general code article on interruption of prescription against joint tort-feasors, LSA-C.C. 2324(C).” Borel v. Young, 2007-0419, p. 27 (La.11/27/07), 989 So.2d 42, 68.

|uIn the alternative the plaintiff invokes the doctrine of contra non valentem, on the ground he was misled by the actions of Sidmak and the other defendants. Contra non valentem non currit praescriptio is a jurisprudential doctrine developed to soften the occasional harshness of prescriptive statutes. Carter v. Haygood, 2004-0646, p. 11 (La.1/19/05), 892 So.2d 1261, 1268.

There are four instances where contra non valentem is applied to prevent the running of prescription:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Carter, 2004-0646 at 11-12, 892 So.2d at 1268. These categories allow the courts “to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” Id., 2004-0646 at 12, 892 So.2d at 1268.

Under the doctrine of contra non valen-tem, prescription does not run against a person when “the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.” Corsey v. State of La. through the Dep’t of Corrections, 375 So.2d 1319, 1322 (La.1979).

Here, however, Mr. Kampmann failed to show that he could not reasonably have discovered the true identity of the manufacturer of the Trazodone he took. According to the pleadings, the pills are marked with information that indicates the manufacturer. Information about the identity of the manufacturer was as readily 112available to the plaintiff as to the defendants. We find no merit to the contra non valentem arguments.

We find no merit to the plaintiffs arguments that the LMMA cannot be applied to Mutual. As discussed above, the plaintiff alleges that Mutual is jointly liable with the health care providers in this case. As such, the prescriptive period against Mutual is governed by the provisions of the LMMA.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Trazodone is the generic form of an antidepressant medication that is also sold under various trade names, such as Desyrel.

      . In a Second Supplemental and Amending Petition filed on January 10, 2006, the plaintiff added as defendants West Jefferson Mental Health Clinic; Regions Ten Pharmacy; Human Services Authority for the Parish of Jefferson, State of Louisiana; and State of Louisiana, Department of Health and Hospitals.

      . The prescriptive period for actions under the Medical Malpractice Act is set out in La.R.S. 9:5628(A), as “one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”

      . "Prescription does not run against a person who could not bring his suit."


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Cleon C. FLOYD, Jr.
    No. 08-KA-746.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gret-na, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Cleon Floyd, Gretna, Louisiana, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, GREG G. GUIDRY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2The defendant, Cleon C. Floyd, Jr., has appealed his conviction of possession of cocaine, in violation of R.S. 40:967. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

This matter has a complicated and unusual procedural history. Most notably, the defendant has pled guilty to the crime charged, reserving only certain issues, as will be discussed below. He now appears before this Court on his second appeal.

On November 20, 2002, the Jefferson Parish District Attorney charged the defendant with possession of cocaine, in violation of LSA-R.S. 40:967. On April 22, 2004, the court took up his Motion to Suppress. After hearing from the state’s witness, Kenner Police Officer Brent Donovan, the court continued the motion hearing for August 10, 2004 because the defendant stated he may want to call | ¡¡certain potential defense witnesses. The trial court did not issue a ruling regarding the Motion to Suppress.

In a special setting before the date scheduled for the remaining portion of the motion hearing, the defendant pled guilty on July 20, 2004, reserving his rights under Crosby and Alford. In a negotiated plea agreement, the defendant was sentenced to hard labor for four years, with credit for time served. The defendant did not initially appeal but at a later point sought an out of time appeal.

In the first appeal, this Court vacated his guilty plea and remanded to the district court. State v. Floyd, 946 So.2d 325, 330 (La.App. 5 Cir. 12/27/06). The Supreme Court of Louisiana reversed this decision and remanded the matter to the district court with instructions that the trial court complete the hearing on the Motion to Suppress and rule on the merits. State v. Floyd, 965 So.2d 865 (La.2007). The Supreme Court stated: “In the event of an adverse ruling on his motion, the trial court shall maintain the guilty plea and defendant may again appeal his conviction and sentence to the court of appeal on the basis of his original Crosby reservation.” Id.

In accordance with order of remand, on March 4, 2008, the district court completed a hearing on the Motion to Suppress. No additional testimony was taken and at the conclusion of proceedings the court formally denied the motion. The defendant was not present at this hearing, despite domiciliary service on him as well as oral notice from the court, but his counsel appeared. As per the Supreme Court’s remand, the trial court ruled adversely to defendant on the Motion to Suppress, and the defendant has appealed his conviction and sentence on the basis of his original Crosby reservation. Through counsel, he argues that the Motion to ^Suppress should have been granted. Additionally, he has filed a pro se brief listing six Assignments of Error.

The state argues the trial court correctly denied the Motion to Suppress. In addressing the pro se claims, the state responds on the merits to the first claim, but contends that all other claims were not preserved for review in the defendant’s Crosby plea and are therefore procedurally barred from appellate review.

FACTS

In the original appeal, this Court noted the following facts as established during the Motion to Suppress hearing:

Officer Donovan testified that at approximately 2:00 a.m. on November 8, 2002, he was on patrol on 31st Street in Lincoln Manor, an extremely high crime area, when he observed a vehicle heading east on 31st Street. Officer Donovan stated he followed the vehicle as it continued to proceed “with the left tires on the center lane.” The vehicle then “swerved back to the right, almost to the shoulder.” When Officer Donovan was approximately one-half block away from the vehicle, it made an abrupt U-turn in the intersection, and appeared to pick up a passenger on the corner. Officer Donovan followed the vehicle as it headed west and activated his overhead lights to stop the vehicle for improper lane usage.
Alter the vehicle stopped, Officer Donovan started to approach the driver’s side of the vehicle, until he saw the passenger, later identified as the Defendant, duck his head down several times. Because of the Defendant’s erratic movements, he approached the vehicle from the passenger’s side. Officer Donovan testified the Defendant was bent over with both of his hands in his jacket pockets. Officer Donovan instructed the Defendant to remove his hands from his jacket, and the Defendant complied. When Officer Donovan opened the door and asked the Defendant to exit, the Defendant complied, but put his hands back into his jacket pockets. Officer Donovan again told the Defendant to remove his hands from his pockets. “When the Defendant refused, Officer Donovan reached out to grab the Defendant’s hands. The Defendant then threw a brown paper bag on the grass in front of Officer Donovan. After handcuffing the Defendant, the officer picked up the bag and said, “What’s in here, Cleon?” According to Officer Donovan, the Defendant replied, “I did not throw that down.” Officer Donovan testified that the discarded bag contained rocks of crack cocaine.

┴5State v. Floyd, 06-657 (La.App. 5 Cir. 12/27/06), 946 So.2d 325, 327, rehearing denied, (La.App. 5 Cir. 1/12/07), reversed by 07-0216 (La.10/5/07), 965 So.2d 865.

ASSIGNMENT OF ERROR NUMBER ONE

In his sole counseled Assignment of Error, the defendant argues that his Motion to Suppress the evidence should have been granted. He contends that the driver of the vehicle should not have been pulled over by police for a traffic violation. He further contends that it was unjustifiable for the police to order him, as a passenger, to exit the vehicle.

As the state points out in response, the Supreme Court of Louisiana has rejected such an argument in a similar case, State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053. In Waters, the police detected the defendant’s car at 3:10 a.m. when it was veering into the right lane where it touched the fog line. A traffic stop was conducted and subsequently, marijuana was discovered. The Supreme Court concluded that the sudden and inexplicable veering provided the police with a “minimal level of objective justification.” Id. at 1057.

In this case, the police discovered the car at approximately 2:00 a.m. At the time the car was spotted, its left tires were on the center lane and shortly afterwards the car swerved to the right, almost to the shoulder. Furthermore, the car made a U-turn in an abrupt manner and is believed to have picked up a passenger off the street. Officer Donovan observed this passenger, the defendant, make erratic movements inside the car.

These facts, as established at the Motion to Suppress hearing, support the stop for improper lane usage, a violation of LSA-R.S. 32:79. Due to the defendant’s erratic activity, the officer approached on the passenger side. After he | fiwas ordered from the car, the defendant continued to put his hands in his pockets, despite instructions to the contrary. After exiting the vehicle, the defendant threw a paper bag to the ground.

Generally, the police act reasonably when they stop an automobile when they have probable cause to believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Additionally, following a lawful stop of a vehicle, the police are authorized to order the driver and the passenger to exit the vehi-ele. State v. Smith, 07-815 (La.App. 5 Cir. 8/11/08), 982 So.2d 821, 825.

Accordingly, because we find the stop was justified and the police have authority to order the passenger to exit the vehicle, we conclude that the Motion to Suppress the evidence was correctly denied

PRO SE ASSIGNMENT OF ERROR ONE

In his first pro se Assignment of Error, the defendant argues that his Motion to Suppress was denied ex parte. The record establishes that the trial court denied the defense motion on March 4, 2008, in the absence of the defendant.

The defendant was present during the initial Motion to Suppress hearing held on April 22, 2004. On remand, however, at the Motion to Suppress hearing set for March 4, 2008, the defendant was not present. The court specifically noted that the defendant had received domiciliary service and that he had also been given oral notice of the hearing. The assistant district attorney informed the court that the defendant was not in the custody of the Department of Corrections, thus establishing that he was not incarcerated at the time of the hearing.

|7At this remanded motion hearing, no witnesses were called by either the defense or the prosecution. At the end of the hearing, in compliance with the directive of the Supreme Court of Louisiana, the trial court formally ruled on the Motion to Suppress, denying said motion. The court directed that a copy of the minute entry be mailed to the defendant.

On appeal, the defendant complains of the ex parte denial of his motion. Clearly, the defendant has a constitutional and statutory right to be present at critical stages of proceedings. State v. Addison, 03-1421 (La.App. 5 Cir. 3/30/04), 871 So.2d 536, writ denied, 885 So.2d 584, 04-1291 (La.10/29/04) and LSA-C.Cr.P. art. 831. Nonetheless, the defendant’s presence is not essential under certain specific circumstances:

(1) The making, hearing of, or ruling on a preliminary motion or application addressed to the court;
(2) The making, hearing of, or ruling on a motion or application addressed to the court during the trial when the jury is not present; except as provided in Clause (4) of Article 831; and
(3) The making, hearing of, or ruling on a motion or application made after his conviction.

LSA-C.Cr.P. art. 834.

In State v. Serrato, 424 So.2d 214, 225 (La.1982), the Supreme Court reviewed a claim that neither the defendant nor his attorney was present for the court’s ruling on a Motion to Suppress. In upholding the conviction, the Court noted that although “it is better procedure for the defendant and his counsel to be present at rulings on preliminary motions, C.Cr.P. 834(1) does not require their presence.”

The Supreme Court of Louisiana has recognized that “article 834 provides that the defendant has the right to be present during the making, hearing of, or ruling on a preliminary motion or application addressed to the court. But this right ┴8may be waived by the defendant or his attorney, by his voluntary absence, or his failure to object to argument or discussion during his absence.” State v. Kahey, 436 So.2d 475, 483-84 (La.1983), emphasis added.

The defendant in this case was notified of the date for his remanded Motion to Suppress hearing. When he failed to appear for the first setting of this hearing, the court reset the matter on its own motion. Despite domiciliary service and notice by telephone of the hearing date, the defendant failed to appear for the hearing on his motion. Accordingly, based on all of the foregoing, we find that the trial court’s action of denying the motion to suppress in the absence of the defendant was not error.

PRO SE ASSIGNMENT OF ERROR TWO

The defendant argues that the initial, partial “motion to suppress” hearing held on April 23, 2004 was conducted in violation of the Louisiana Constitution: therefore, this hearing should be struck from the record and a new constitutionally protected hearing held in its place. Defendant claims that the trial court’s refusal of his request to have his handcuffs removed during the hearing on the Motion to Suppress resulted in a denial of his right to full confrontation. He contends that by being restrained he was unable to access certain documents.

We find no merit to defendant’s argument. A review of the transcript indicates defendant performed a thorough and comprehensive cross-examination of Officer Donovan, the only witness called at the hearing. Further, the record reflects that an attorney was present in the court room and assisted the defendant with obtaining documents during the cross-examination. While defendant claims he was denied access to the defense files during cross examination, the record 19shows the opposite. In fact, when defendant referred to a document during cross examination, the court requested the attorney to assist and obtain the document.

PRO SE ASSIGNMENT OF ERROR THREE

The defendant argues that constitutional right to “due process” was denied, by (1) alleged “illegal destruction” of the dispatch communication (2) alleged “illegal destruction” of the traffic citation book. He contends that the dispatch communication and traffic citation books of the Ken-ner Police Department are public records and should have been preserved as public records.

Prior to pleading guilty, the defendant subpoenaed dispatch calls and tickets from the Kenner Police Department. On July 13, 2004, in a contradictory hearing, a representative from the police department testified that the requested items were no longer available. The representative stated that the audio tapes between the dispatch and the officers are only preserved for one year. Defendant was arrested on November 8, 2002. The record indicates that he attempted to subpoena these records from the police department in December 2003 and the subpoena was actually served on the department in June 2004. Further, this representative testified that defendant subpoenaed a “traffic citation book” used by Officer Donovan, such a book does not exist. The representative explained that traffic citations are given to officers in packs of ten and once all ten are issued, there is nothing left. Thus, there is no showing of an infringement of defendant’s rights as he requested the dispatch tapes after they had been discarded in the normal course of business and he requested a “ticket book” that does not exist.

\ U)PRO SE ASSIGNMENT OF ERROR FOUR

The defendant argues the denial of due process by the Kenner Police Department alleged destruction of all field test data. As the defendant notes, at the hearing on the return of his subpoenas duces tecum, no physical field test data existed. One week after this hearing, the defendant pled guilty to the crime, obviating the state’s need to prove that the substance was cocaine. As stated previously, the defendant’s guilty plea under Crosby preserved only search issues for appellate review. Notably, Crosby itself holds that a plea of guilty normally waives all non-jurisdictional defects in proceedings prior to the plea, including insufficiency of the evidence. A valid guilty plea waives the defendant’s right to question the merits of the state’s case. State, v. Bourgeois, 406 So.2d 550 (La.1981). As this Court has stated, “When defendant entered a guilty plea, he admitted factual guilt and relieved the State of the necessity to prove it by a contested trial.” State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, 622.

PRO SE ASSIGNMENT OF ERROR FIVE

In his fifth pro se Assignment of Error, the defendant argues that an unconstitutional Motion to Suppress hearing was held on April 22, 2004. He essentially contends that the trial court proceeded with the hearing without material requested by the defense.

The Supreme Court remanded the matter to the trial court for completion of the suppression hearing and a ruling on the merits. Floyd, at 865. At this remanded hearing, the defendant had the opportunity to present further evidence or argument. At this hearing, the defendant could have called witnesses and/or raised his present due process arguments. In addition, defendant did not appear for the |ninitial hearing on remand. The court continued the hearing and notified the defendant of the date of the hearing by phone. Defendant was also served with notice of the hearing. Defendant did not appear at the hearing, nor did the attorney who appeared on his behalf present any further evidence or argument to the trial court. Thus, we find this Assignment of Error to be without merit.

PRO SE ASSIGNMENT OF ERROR SIX

This defendant argues the denial of due process by the Kenner Police Department: the “combined” alleged destruction of evidence that could impeach Office Donovan’s testimony. As discussed above, there was no illegal destruction of evidence.

At the time of his plea on July 20, 2004, the defendant reserved his rights under Crosby and Alford. Normally, a defendant’s guilty plea waives all non-jurisdictional defects. By tendering a plea with Crosby reservations, however, specific pretrial rulings may be preserved for review by appellate courts. In tendering his plea of guilty in this case, the defendant failed to state which of many pretrial rulings he wished to challenge.

Upon entering a plea of guilty, a defendant may be allowed appellate review, if he expressly reserves his right to appeal a specific adverse ruling. State v. Landry, 02-1242 (La.App. 5 Cir. 4/29/03), 845 So.2d 1233, 1236, writ denied, 03-1684 (La.12/19/03), 861 So.2d 556.

In State v. Anthony, 07-204 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219, 1222, this Court noted that in the absence of a detailed specification of which adverse pretrial rulings the defendant reserved for appellate review, an appellate | i2court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas. Thus, any issues in this second appeal not related to the Motion to Suppress are not subject to appellate review.

In light of the hearing held on March 4, 2008, we find that the trial court complied with the remand order from the Supreme Court in that it completed the hearing on the Motion to Suppress and ruled on the merits of the search issue.

ERROR PATENT DISCUSSION

The defendant received an error patent review on his original appeal, in accordance with LSA-C.Cr.P. art. 920. He is now limited to an error patent review of the trial court’s proceedings on remand. State v. Chisley, 06-900 (La.App. 5 Cir. 4/24/07), 957 So.2d 226. A review of the proceedings on remand, reveals no errors patent.

CONCLUSION

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

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . In brief, the defendant asserts that on January 15, 2008, counsel was asked to waive the defendant's presence. There is no transcript of proceedings from that date. Further, the minute entry does not reflect that counsel attempted to waive the defendant's presence.

      . The defendant filed a counseled Motion to Suppress the confession, identification, and identification. The defendant filed a pro se motion to suppress evidence as well. The Motions to Suppress were scheduled for hearing, commencing on April 22, 2004.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Brian RIDGLEY.
    No. 08-KA-675.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Warren Mouledoux, Assistant District Attorneys, Gretna, LA for Plaintifi/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding the defendant/appellant Brian Ridgley timely appeals his two armed robbery convictions and his 25-year concurrent sentences. He assigns as errors the trial judge’s failure to conduct a Prieur hearing; the erroneous admission of other crimes evidence; the trial judge’s failure to declare a mistrial; and, the excessiveness of his sentences. For the reasons that follow, we affirm the convictions and sentences.

Procedural History

Mr. Ridgley was charged by Bill of Information with two counts of armed robbery, in violation of La.R.S. 14:64. Count 1 charged him with committing armed robbery of Mary Crawford and Deborah Bourgeois on July 11, 2005. Count 2 charged him with committing armed robbery of Leeresa P. Maxwell on July 1, 2005.

|sA twelve-person unanimous jury found Mr. Ridgley guilty on both counts as charged. On May 12, 2008, the day of sentencing, Mr. Ridgley filed a motion in arrest of judgment or alternative motion for new trial. The trial judge denied the motion that date. Defense counsel informed the court that Mr. Ridgley was ready for sentencing and he would waive all delays associated with the post-trial motion. Thereafter, the trial judge sentenced Mr. Ridgley to 25 years at hard labor on each count to run concurrently. Next, defense counsel filed and argued a motion to reconsider sentences, which the trial judge denied. This timely appeal followed.

Trial

Two armed robberies occurred on July 1 and 11, 2005. Each took place at a Check Into Cash center, a short-term payday loan company. The first occurred in Harahan and the second occurred in Westwego. Two days after the Westwego robbery, an individual acted suspiciously at a third Check Into Cash in St. Bernard Parish. The suspicious behavior prompted the employee to alert the police. Information gained from the third incident, together with information from the robbery investigations, led to the defendant’s identification as the robber.

Leeresa Maxwell testified that on July 1, 2005 she was employed at the Harahan Check Into Cash. A man entered and inquired about making a loan. Ms. Maxwell gave the man an application and looked down. When she looked up, the man pointed a black revolver-type gun at her and asked her for the money. He looked in the cash registers, retrieved money, and left the business.

The police responded to her call. She told the police that the subject wore a black hat, a light-colored shirt, and khaki-looking light-colored pants.

Sergeant John Carroll, a supervisor with the Jefferson Parish Sheriffs Office in the armed robbery division, testified that he investigated the Harahan armed robbery. Ms. Maxwell described the robber as a black male armed with a handgun. |4She related that he had a white long sleeved dress-type shirt and khaki or beige cream colored pants and a baseball cap. The suspect was approximately five feet seven to five feet ten and weighed 180 to two hundred pounds. He was 26 to 28 years old.

Later, Sergeant Carroll recovered clothing from the defendant’s vehicle and residence pursuant to a consent search. The police found shirts at the residence that matched the descriptions of the robber’s shirts in the two robberies. Sergeant Carroll recovered two baseball caps, and two pairs of khaki or beige pants from the vehicle.

Ms. Maxwell positively identified the pants and shirt shown to her at trial as being “exactly like” the robber’s.

On July 13, 2005, Ms. Maxwell identified the defendant in the photographic lineup as the person who robbed her. She also identified the defendant in court. She explained that the store was well-lit. She said that she also noted that the defendant had pointy features and one of his eyes was a little different from the other one. It was like a “lazy eye.” She was positive that the defendant was the person who robbed her.

Deborah Bourgeois testified that on July 11, 2005 she was employed at the Westwe-go branch of check into cash. A man entered and inquired about the information he needed for a loan. She explained the requirements. He reached into his pocket and then said he would return. He left the premises saying that he was going to get his papers from the car. Ms. Bourgeois thought that the behavior | Swas strange because the man had no papers on him. Usually, people present some information. While this man was gone, she alerted Mary Crawford, her supervisor. A few minutes later, the man returned.

He placed a piece of paper on the counter. When she reached for it, however, he retrieved it and presented a short black gun. He told her this was a robbery and asked her to put her hands up. She feared for her life.

The man went behind a counter. While he held the gun in his right hand, he searched through the drawers with his left. Then, he went behind her to Ms. Crawford, who was sitting at a desk. He demanded money from Ms. Crawford.

Ms. Bourgeois could not see his car although she had a view of the front of the business’ parking lot. Her supervisor alerted the police who arrived immediately thereafter. Ms. Bourgeois gave a physical description of the robber to the police telling them that the robber wore a black cap and a tangerine-colored shirt, which might have been orange and white. She did not recall the pants.

A couple of days after the robbery, Ms. Bourgeois made a positive identification of the defendant from a photo array shown to her. During her testimony, Ms. Bourgeois was shown the surveillance tape of the robbery. She also made a positive in-court identification of the defendant, testifying that she had a good look at the robber and she was “100 per cent sure” of her identification. Ms. Bourgeois was not aware of the exact amount of cash that was taken in the robbery.

Once the incident was over, the robber fled toward the left side of the building. The left side is an open area, which is across from a grocery store.

1 fiMs. Crawford corroborated Ms. Bourgeois’ testimony at trial. She testified that the man entered and asked how to go about getting a loan. He was explained how to do so and he asked for an application. He was told that they would give him the application when he gave them his information. He pulled out his wallet. From her desk, she could see that there was nothing in his wallet. He said he was going to go out to get his information and return. He wore a light-colored shirt with khaki pants and a dark hat. She commented that he came to get a loan but he had nothing in his wallet. When Ms. Bourgeois asked her if she wanted to lock the door, she responded that she would keep her finger on the panic button.

When the man re-entered, she had her finger on the panic button. He entered with papers in his hand. He came to the counter. When Ms. Bourgeois attempted to get the papers, the man pulled a gun out and said “Don’t move. Don’t touch anything.” Ms. Crawford pressed the button quickly and threw it apparently though she did not hold it down long enough.

The man went behind the counter and looked through the drawers. Next, he stood next to her with a gun in his right hand and asked for the rest of the money. Ms. Crawford thought she was going to die. She told him that she did not have any other money because they had just opened.

The man pulled out her desk drawers and told her not to look at him. However, Ms. Crawford looked at his face. He had a medium build and a light complexion. There was something different about his eye. He had a pointy nose and a hat.

He left. When he did, Ms. Crawford pushed the panic button and alerted the police. She gave the police a description. A couple of days later, Ms. Crawford identified the defendant as the robber. She also identified the defendant in court. She was 100 percent certain at trial in her identification.

17Sergeant Kelly Carrigan Jr., a West-wego police officer, testified that he was called to investigate the robbery. The police interviewed Ms. Bourgeois and Ms. Crawford individually. Sergeant Carrigan also canvassed the neighborhood for additional witnesses. Since the victims advised the police that the subject fled in the direction of the 610 Quick Stop Sandwich Shop, he went to that business and spoke to Ray Mire.

Mr. Mire testified at trial that he works at the Quick Stop store, which is a family business. On the day of the Westwego robbery, he saw a person driving a black Lexus run the stop sign and pull into the front of them business. Mr. Mire was looking out the front door, which faces the parking lot. As he looked at the car, he could see the defendant. The defendant backed out and parked his car on the side of Winn-Dixie. The defendant exited his vehicle, put on a baseball cap, and started walking toward the check place.

Mr. Mire was approximately 10 to twelve feet from the defendant. WTile he was watching him, Mr. Mire did not actually see him walk into the check store.

Mr. Mire also testified that while he was watching the car, he noticed duct tape on the car’s mirrors, a missing chrome cap, and “after market” wheels. The police arrived five to 10 minutes after he saw the man he described as a black man.- When the police arrived, Mr. Mire described for them everything he saw, both the man and the car he was driving.

Later, he identified the actual vehicle for the police. He also identified the defendant in a photographic lineup. He was 100 percent certain that the defendant was the person he saw drive his car in front of his family’s business and then move the car over to Winn-Dixie.

At trial, Mr. Mire identified pictures of the vehicle with the duct tape. He also positively identified the defendant in open court.

IsAfter Sergeant Carrigan interviewed Mr. Mire, the police went to the office and researched police reports. They learned that the modus operandi that was used in Westwego was almost identical to the robbery that occurred days before in Jefferson Parish at another Check Into Cash business. They contacted Detective Carroll and together they compiled them information to search for the next lead.

The next lead occurred at a St. Bernard Parish Check Into Cash store. The police were able to speak to a regional representative of the business. The police learned that a person in a vehicle matching the suspect’s vehicle attempted to obtain a loan at the St. Bernard store. He had the same modus operandi. He left the store to go back to his car to get identification or some information and then attempted to re-enter the store. But, the employee locked the door and notified the police. Before he left the store to get his information from the car, the subject left his work check stub on the counter of that business. There was no robbery or crime committed at the St. Bernard store and therefore the police did not write a formal report.

Since Patrice Luter at the St. Bernard store had written down the license plate number on the Lexus parked in front of her store, Sergeant Carrigan was able to determine the vehicle’s license plate. From the check stub and a Department of Motor vehicles check the police learned that Mr. Ridgley owned a Lexus GS 300. The check stub was from Cisco foods. At this point, the police had the identification of Mr. Ridgley.

The police then determined that the Lexus was in the Cisco parking lot during the evening and assisted Detective Carroll in arresting Mr. Ridgley.

Sergeant Carrigan identified the defendant in court.

Patrice Luter testified regarding the St. Bernard incident. On July 13, 2005, an individual entered the center and said he wanted to apply for a loan. She | ^requested certain documents. The manner in which the man reached for the documents made her feel uncomfortable, She asked him for a recent pay stub, checking account statement, and a valid driver’s license or state identification.

The man then went to his car and returned with a pay stub. The pay stub was made out in the name of Brian Ridgley. Because of her suspicions of the man, Ms. Luter made an excuse to leave the counter. The man left the business, leaving his pay stub on the countertop, but Ms. Luter made a note of his license plate number. At some point, she locked the door. When he could not re-enter, he got in his car and quickly backed up. She noted the license plate number and the make of the vehicle. It was a black Lexus. She called the police and provided a full description of both the man and his vehicle.

No one produced a handgun that day and no money was stolen from her that day.

The defendant waived his constitutional rights and gave a voluntary statement to the police in which he admitted that he had entered the St. Bernard location of Check Into Cash. He stated that he was a regular customer at Check Into Cash but denied being the suspect of the robberies.

At trial, the defendant denied committing the robberies. He admitted that the Lexus with the duct tape was his car. However, he denied being at the Quick Stop that day. He admitted that he had visited the Check into Cash branch in St. Bernard Parish on July 13, 2005. He wanted to obtain a loan. The woman, however, acted strangely. He denied any intent to commit robbery. He believed the positive in-court identifications of the victims resulted from mistaken identity. He was previously convicted of what he thought was misdemeanor unauthorized use of a movable in 2004 and received a six-month sentence.

|inMary Czubak testified she is employed at Cisco food services as the director of human resources. She was also employed in that capacity in July of 2005. The defendant worked the night shift at Cisco in July 2005.

Other Crimes Evidence

The defendant argues that the trial judge erroneously denied his motion for mistrial based on the introduction of inadmissible evidence of an armed robbery or attempted armed robbery allegedly committed by the defendant in St. Bernard Parish. Furthermore, that evidence of another crime was admitted without proper notice and without hearing and deprived the defendant of his right to a fair trial.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is inadmissible at trial due to the risk of grave prejudice to the defendant. State v. Williams, 01-1007, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030 (Citation omitted).

Article 404(B)(1) provides:

Except as provided in Article 412 [not applicable here], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 404(B)(1) provides an exception, formerly known as res gestae, for admission of evidence of other crimes “... when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.”

_Jjjiies gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. State v. Taylor, 01-1638, p. 10 (La.1/14/03), 838 So.2d 729, 741. cert. denied, Taylor v. Louisiana, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). A close connexity between the charged and uncharged conduct is required in order to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 {quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)).

The res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Taylor, supra, 01-1638 at 10-11, 838 So.2d at 741 (Citations omitted).

In addition, res gestae or integral act evidence incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” State v. Taylor, supra, 01-1638 at 11, 838 So.2d at 741-42 (iquoting State v. Colomb, 747 So.2d at 1076 in turn quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

The doctrine of res gestae is designed to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. Id.

| ^Furthermore, other crimes evidence is admissible when offered for such purposes under La.C.E. art. 404(B)(1) as proof of identity. See also, State v. Prieur, 277 So.2d 126, 129-30 (La.1973). State v. Prieur requires notice of intent to use other acts or crimes evidence. The state must show the evidence is not repetitive or cumulative and is not being introduced to show defendant is of bad character. State v. Cotton, 00-850, p. 12 (La.1/29/01), 778 So.2d 569, 571, reh’g granted in part for clarification, 00-850 (La.4/20/01), 787 So.2d 278 (relying on State v. Miller, 98-0301 (La.9/9/98), 718 So.2d 960, 962, explaining Prieur).

One of the enumerated factors in Article 404(B)(1) must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible. State v. Hernandez, 98-448, p. 15 (La.App. 5 Cir. 5/19/99), 735 So.2d 888, 897, writ denied, 98-1688 (La.11/12/99), 750 So.2d 194, citing State v. Jackson, 625 So.2d 146, 149 (La.1993). Even when allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. State v. Jacobs, 99-991, p. 24 (La.5/15/01), 803 So.2d 933, 951, cert. denied, Jacobs v. Louisiana, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Id., citing La.C.E. art. 403; State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

The state must show that the defendant committed the other crimes. State v. Hernandez, supra, 98-448 at 16, 735 So.2d at 898. Hearsay evidence is sufficient to meet the Prieur standard for a hearing. See: State v. Scales, 93-2003, p. 2 (La.5/22/95), 655 So.2d 1326, 1330, cert. denied, Scales v. Louisiana, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996) (The trial judge did not err in denying the defendant’s hearsay objection at a pretrial Prieur hearing.) and State v. Brown, 01-230, p. 11 (La.App. 4 cir. 2/28/01), 782 So.2d 136, 144, writ denied, 01-884 (La.┴6/29/01),13 794 So.2d 811. (The state’s showing may include police reports and prior transcripts.).

No prior notice to the defendant is required for res gestae evidence. See, La. C.Cr.P. art. 720.

Prieur Notice

At the pretrial suppression hearing, defense counsel questioned an investigating officer about the St. Bernard incident. Then, on the day of trial but before trial proceeded, defense counsel asked the prosecutor if she intended to introduce evidence of Mr. Ridgley’s alleged suspicious action in St. Bernard parish because if so, defense counsel required La.C.CrJP. art. 404(B) notice and none had been provided.

The prosecutor responded that defense counsel had the police report and was aware that no crime had been committed. She argued that the evidence was being introduced as part of the events that led to the identification and the arrest.

Defense counsel stated that according to the police report from St. Bernard Parish, the reason the police were called was because Mr. Ridgley acted suspiciously in St. Bernard. She argued this was evidence of a bad act within the meaning of La.C.Cr.P. art. 404(B). Ms. Luter did not write down the defendant’s license plate because she thought he was a good person. Rather, she wrote down the license plate because he was doing something suspicious or wrong. She stated that she should have received La.C.Cr.P. art. 404(B) notice if the state was going to introduce the evidence. She argued that according to the police report, Ms. Luter locked the door and became scared. She quoted the report as saying: “Concerned for her safety she locked the business door and hit the holdup alarm button and called 911.”

114The trial judge stated he agreed with the state that the state should not be prevented from introducing the evidence. Later, during the trial he characterized the evidence as integral act evidence.

During opening statements, the prosecutor referred to the St. Bernard incident and Ms. Luter’s feeling uneasy. Defense counsel objected and reurged her objection to the prosecutor’s referring to that incident. She requested a mistrial and the trial judge denied the motion. After Sergeant Carrigan testified regarding the St. Bernard incident, defense counsel noted her objection to the reference to the St. Bernard incident based on her prior reasons.

Even if the evidence of the St. Bernard incident qualifies as res gestae or integral act evidence, for which no Prieur hearing was required, the defendant effectively had a Prieur hearing of the state’s intent to use the evidence of the St. Bernard incident when the trial judge ruled that the evidence was admissible. The hearing and the ruling, however, occurred on the date of trial.

Not every violation of Prieur notice requires reversal. Before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, 93-0001, p. 14 (La.11/30/94), 648 So.2d 1272, 1284, cert. denied, Sanders v. Louisiana, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996) (Citations omitted).

Notwithstanding the state’s failure to file a formal Prieur notice, the defendant clearly knew that the state would introduce evidence of the St. Bernard incident. Despite the late hearing about the admission of the evidence the defendant makes no showing how his strategy would have been different had he received notice earlier. Because the defendant does not demonstrate prejudice resulting from the state’s untimely notice, he shows no basis for relief under the notice requirements of Prieur. Accordingly, the defendant’s claim concerning the l^state’s purportedly insufficient notice that it would introduce the evidence of the St. Bernard incident does not warrant relief.

Admissibility

The defendant argues that evidence of the alleged misconduct in St. Bernard was inadmissible “other crimes” evidence.

In State v. Taylor, supra, the Louisiana Supreme Court considered the defendant’s claim that other crimes committed over a seven-day span and involving different victims in different states was improperly admitted. The Court held that “[ajpart from the question of whether the state’s evidence technically qualified as res gestae or under the “plan” exception to other crimes evidence in La. C.E. art. 404(B) ... the evidence [in that case] was clearly relevant for purposes other than simply proving the criminal disposition of defendant.” 01-1638 at 13, 838 So.2d at 743.

Similarly, whether the evidence of the St. Bernard incident qualifies as res gestae or integral act evidence, the evidence was nonetheless admissible. The evidence was admissible for the purpose of rebutting the defendant’s mistaken identity defense and was not being introduced to show that the defendant was of bad character. See: Article 404(B)(1) and State v. Jacobs, supra, 99-991 at 24, 803 So.2d at 933.

Furthermore, its probative value outweighed its prejudicial effect. The defendant ignores the fact that the jury had already received evidence that he was identified as the robber in the two charged offenses. Also, the jury had heard testimony from a police officer that no crime had been committed in St. Bernard Parish. In light of these facts, we fail to discern any significant prejudice to the defendant by having the judgmental label of attempted robber before the jury.

| ^Moreover, even if the evidence were erroneously admitted, the erroneous admission of other crimes evidence is subject to harmless error analysis. See: State v. Maise, 00-1158, p. 14 (La.1/15/02), 805 So.2d 1141, 1151. Erroneous admission of evidence requires reversal only where there is a reasonable possibility that the evidence might have contributed to the verdict. State v. Casey, 99-23, p. 13 (La.1/26/00), 775 So.2d 1022, 1033, cert denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, 391 So.2d 421 (La.1980). The relevant inquiry is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt ... i.e. was the guilty verdict actually rendered unattributable to the error. Id.

In this case, the jury had evidence from three robbery victims identifying the defendant as the man who robbed them. Therefore, in light of the overwhelming testimony identifying the defendant as the robber, then, the jury’s verdict was surely unattributable to the testimony regarding the St. Bernard incident, if improperly admitted. Thus, even assuming that the St. Bernard evidence was improper, its admission constitutes harmless error beyond a reasonable doubt.

Ms. hater's Remark

The defendant also complains that the trial judge erred in failing to grant his motion for mistrial following Ms. Luter’s remark that she was about to be robbed.

Ms. Luter testified regarding the St. Bernard Parish incident. At the beginning of her testimony, the prosecutor asked if she recalled that day. She said: “Unfortunately, yes.”

The prosecutor asked: “And why do you recall it?”

Ms. Luter replied: “I recall it because I was about to be robbed and—”

117Pefense counsel objected and moved for a mistrial. She argued that the statement referred to another crime. As such, the evidence was inadmissible and an admonition would be insufficient. Furthermore, she had not received Prieur notice or a Prieur hearing.

The prosecutor said that she was surprised and sorry that Ms. Luter made that comment. And when the prosecutor spoke to Ms. Luter on the telephone, she expressed to her the need to avoid making any conclusions. The prosecutor also pointed out that there was prior testimony from an officer that there was no crime committed in St. Bernard Parish. She asserted that an admonition that the jury disregard the last statement was sufficient.

In addition, the prosecutor argued that the reference was not a bad act. Rather, it was admissible because it showed the manner in which the police obtained the check stub and identified the defendant.

The trial judge denied the motion for mistrial. He found that the testimony was integral act evidence and he felt that an admonition was sufficient. He asked the prosecutor to speak to Ms. Luter and make certain that she avoided inadmissible testimony. The prosecutor agreed to reurge this directive.

The trial judge instructed the jury to disregard Ms. Luter’s last remark. He explained that witnesses cannot give their impressions or feelings because these feelings are unreliable and conclusory. Witnesses might have the wrong impression or feeling. He instructed the jury to only consider the evidence that had been admitted and the testimony.

La.C.Cr.P. art. 770 provides in relevant part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
|1S(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

As a general rule, Article 770 does not apply to testimony by a state witness, since a witness is not considered a court official. State v. Thomas, 08-113, p. 9, 988 So.2d 750, 756. But, the jurisprudence interpreting this article has held that an impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the state and would also mandate a mistrial. State v. Madison, 345 So.2d 485, 494 (La.1977) (Citations omitted).

The remark in question in this case was a reference to an attempted robbery. However, solely through this remark, Ms. Luter did not refer to another crime committed or alleged to have been committed by the defendant. Defense counsel was concerned that since Ms. Luter was describing her interaction with the defendant that day, her testimony gave the impression that it was the defendant who attempted to rob her.

As previously discussed, the defendant had notice that the state intended to call Ms. Luter to testify to the events which led to the identification of the defendant as the robber in the instant offenses. The defendant knew that Ms. Luter would testify regarding the defendant’s suspicious behavior, which prompted her to call the police. Therefore, the defendant had notice that the state would present evidence that suggested an attempt at robbery.

Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for mandatory reversal of a conviction. State v. Fowlkes, 352 So.2d 208, 212 (La.1977). In this case, the prosecutor asked a broad, vague | ^question of why Ms. Luter recalled that day. She did not ask if there was a robbery attempt. We cannot find that the reference to another crime was deliberately obtained by design of the prosecutor to prejudice the rights of the defendant. Consequently, La.C.Cr.P. art. 770 does not mandate a mistrial.

The defendant also argues that the trial judge erred in failing to exercise his discretion to grant the motion for mistrial pursuant to La.C.Cr.P. art. 775.

Article 775 provides in relevant part:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

The defendant asserts that he was unfairly prejudiced by the reference to an attempted robbery. The defendant ignores the fact that the jury had already received evidence that he was identified as the robber in the two charged offenses. Also, the jury had heard testimony from a police officer that no crime had been committed in St. Bernard Parish. In light of these facts, we fail to discern any significant prejudice to the defendant by having the judgmental label of attempted robber before the jury.

Excessive Sentences

The defendant was sentenced to 25-year concurrent sentences on the two counts of armed robbery. The offense of armed robbery, La.R.S. 14:64(B), mandates that a defendant be imprisoned at hard labor for not less than ten nor more than 99 years, without benefit of parole, probation or suspension of sentence. The trial judge did not impose the statutory restrictions. However, the trial court’s Igpfailure to impose the sentences without benefit of parole, probation or suspension of sentence will be automatically corrected by operation of La.R.S. 15:301.1(A).

On appeal, the defendant argues that his two concurrent twenty-five year sentences for the armed robbery convictions, which are without benefit of parole, probation or suspension of sentences, are constitutionally excessive. Furthermore, the armed robberies are crimes of violence. See: La. R.S. 14:2(B)(21). As such, the defendant argues that he will have to serve a full 85% of the sentences.

Specifically, the defendant asserts that he should receive the minimum 10-year sentence based on the following: (1) He is a first felony offender. (2) At the time of sentencing he was about 42 years old, steadily employed, and contributing to the support of his two children ages two and seven. (3) There is virtually no likelihood that he will commit another offense.

In the proceedings below, the defendant filed a motion to reconsider sentences, which the trial judge denied. He argued that his sentences were constitutionally excessive. He asserted the following mitigating circumstances: (1) l21He was a first offender. (2) He did not commit any acts of physical violence on the victims. (3) He cooperated with the police.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered constitutionally excessive, even when it is within the statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Pearson, 07-332, p. 15 (La.App. 5 Cm 12/27/07), 975 So.2d 646, 655 (Citation omitted).

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. Id., 07-332 at 15, 975 So.2d at 655-56. The trial court is afforded wide discretion in determining sentences and a court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id. (Citation omitted).

In reviewing a trial court’s sentencing discretion, three factors will be considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332 at 15-16, 975 So.2d at 655 (Citation omitted).

In this case, the defendant’s sentencing exposure was 10 to 99 years on each count. Thus, his 25-year sentences were near the lower end of the scale. The Louisiana Supreme Court held that a longer sentence, which is within the 35 to 50-year range, is acceptable for first offenders convicted of armed robbery. State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, citing State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50; State v. Augustine, 555 So.2d 1331, 1332 (La.1990) and the cases cited therein.

|.22The defendant in this case, as the charged offenses reveal, was armed during these robberies. He entered places of business and brandished a pistol at three female victims who could have easily been killed. Ms. Crawford testified that she thought she was going to die. Ms. Bourgeois also feared for her life.

Given the factual circumstances of these offenses, and the Louisiana Supreme Court’s acceptance of longer sentences for first offenders convicted of armed robbery, we find that the trial court judge did not abuse his broad sentencing discretion.

Error Patent

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990) regardless of whether the defendant makes such a request.

As the state points out, the sentencing transcript indicates that the trial judge did not correctly inform Mr. Ridgley of the period in which to file for post-conviction relief. La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. In this case, the trial judge informed the defendant that he had “two years to file for post-conviction relief’ without informing him that the two years was “after the judgment of conviction and sentence has become final.” The failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the ad-visal incomplete. State v. Rose, 05-770, p. 11 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1112, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554. In the past, this court has ordered the trial court to properly advise defendant of the prescriptive period under La.C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this court’s opinion and hsthen to file written proof in the record that the defendant received the notice. However, in State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445 (citing, State v. Morns, 40,322, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363), we corrected this error patent by way of our opinion rather than a remand. In accord with Davenport, we advise the defendant by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . On the date of trial, January 28, 2008, before trial commenced, the trial judge allowed the prosecutor to amend the bill to correct the dates in the original bill from July 13 to July 11 in Count 1 and from July 11 to July 1 in Count 2. The court also allowed the prosecutor to amend Count 1 by adding Deborah Bourgeois as a victim. Defense counsel, who conferred with Mr. Ridgely, had no objection to the amendments and did not want to continue the trial. See: La.C.Cr.P. art. 489 (continuance where amendment is prejudicial). Although Mr. Ridgely was not arraigned on the amended bill, the failure to do so was waived when Mr. Ridgely proceeded to the trial without objecting to the omission. La. C.Cr.P. art. 555. Such waiver is considered as if he had pleaded not guilty. Id.

      . Ms. Maxwell narrated a video surveillance tape of the event as it was played for the jury. The exhibit was a compilation of the videotapes from each of the robberies. The first portion is of the July 1, 2005 robbery. The second portion is the tape of the other robbery. The tape showed each event three times. Once was fast, second was slow, and third was close up. We have reviewed the videotape and find that it is of poor quality in that it does not clearly show the suspect’s facial features. It does, however, show that the suspect wore a cap and brandished what appears to be a gun. Sergeant Carroll testified that the video was not clear enough to see anyone's face.

      . Ms. Bourgeois testified that the videotape showed that it occurred on July 10th at 11:00 p.m. but that date and time were incorrect.

      .R.S.15:301.1(A) provides:
      When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

      . The armed robberies would be designated as crimes of violence, which would mandate that the defendant serve eighty-five percent of his sentence before becoming eligible for parole or good time release under La.R.S. 15:574.4(B), which pertinently provides:
      Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least eighty-five percent of the sentence imposed, before being eligible for parole.

      . At the time of the arrest, the defendant was 39 years old.

      . The trial judge in sentencing the defendant gave no reasons. The defendant suggests that the trial judge failed to consider mitigating factors because he did not articulate any of the sentencing guidelines provided in La. C.Cr.P. art. 894.1. The defendant, however, failed to raise the objection that the trial judge failed to articulate any Article 894.1 reasons in tire proceedings below. Since the defendant failed to raise the trial judge's compliance with Article 894.1 in the trial court below or in his motion to reconsider sentence, he is precluded from raising this issue on appeal. State v. Robinson, 07-832, p. 17, n. 8, 984 So.2d 856, 867 (Citation omitted). See also: State v. Mims, 619 So.2d 1059, 1060 (La.1993) ("Article 881.1 only precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court at a point in the proceedings when the trial court was in a position to correct the deficiency.”).


author: MARION F. EDWARDS, Judge.

text:
    Lynne Adams LANDRENEAU, Raymond L. Landreneau, Jr., Kimberly McFarland Roberts, and Carey William Roberts, Jr. v. COPELAND’S CHEESE CAKE BISTRO, L.L.C., Taco Bell Corp., Taco Bell of America, Inc., John Doe/Operator/Owner/Franchisee, ABC Insurance Company, and XYZ Insurance Company.
    No. 08-CA-647.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Glyn J. Godwin, Attorney at Law, Sli-dell, Louisiana, for Plaintiffs/Appellants.
    Scott S. Dittmann, Law Office of Robert E. Birtel, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| ¿Plaintiffs/appellants, Lynne Adams Landreneau (“Ms. Landreneau”) and Raymond L. Landreneau, appeal a summary judgment in favor of defendant/appellee, Copeland’s Cheesecake Bistro, L.L.C. (“Copeland’s”). For the following reasons, we affirm.

Ms. Landreneau, Kimberly McFarland Roberts (“Ms. Roberts”) and Carey William Roberts, Jr. filed suit against Copeland’s, Taco Bell of America Inc. and its insurer, and the “John Doe” operator of a Taco Bell on Williams Boulevard in Jefferson Parish. They alleged that, on Friday, November 4, 2004, four friends ate together at Copeland’s. Ms. Landreneau and Ms. Roberts ordered and ate a spinach salad while the others did not. On Saturday, Ms. Landreneau purchased food from Taco Bell, but could not eat much as she was feeling ill. Later, both Ms. Landre-neau and Ms. Roberts complained of severe abdominal and alimentary tract symptoms, headaches, and muscular weakness. Plaintiffs/appellants alleged that it |3was more probable than not that they suffered food poisoning, food infection, or food intoxication from the Copeland’s food.

Subsequently, in 2007, Ms. Roberts moved to dismiss all demands. Both Taco Bell and Copeland’s moved separately for summary judgment. Ms. Landreneau did not oppose Taco Bell’s motion, which was granted. Following argument of counsel, the trial court determined that Ms. Lan-dreneau had no medical evidence to show there was food poisoning or infection and granted the motion on behalf of Copeland’s.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. LSA-C.C.P. art. 966. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1). The mover has the burden of establishing the absence of a genuine issue of material fact. However, when a motion for summary judgment has been filed and supported by evidence, the adverse party may no longer rely on the mere allegations or denials of his pleadings, but his responses, through affidavits or otherwise, must set forth evidence demonstrating that there is a genuine issue for trial. LSA-C.C.P. art. 967. Once the motion for summary judgment has been properly supported by the moving party, the failure of the |4adverse party to produce evidence of a material factual dispute mandates the granting of the motion.

In her deposition submitted in connection with the motions, Ms. Landreneau stated that the spinach salad did not taste nasty or unusual. She testified that she became queasy on that Friday night, becoming more ill on Saturday, November 6, 2004. She developed severe diarrhea, vomiting, and abdominal cramps. She went to the emergency room at East Jefferson General Hospital that evening and was admitted early the next morning. Ms. Landreneau told the doctor that, two weeks prior to the incident, she and her daughter had a single bout of diarrhea, but, afterwards, she was okay until eating at Copeland’s. She had never had other intestinal problems, although the hospital records indicated she had symptoms for two weeks before admission. Ms. Landre-neau later found out that Ms. Roberts became ill at around the same time. Ms. Landreneau continued to have problems and had another acute intestinal attack in May 2005 and again in June 2006.

Ms. Landreneau’s medical records were attached as part of the deposition. Dr. David Dulitz (“Dr. Dulitz”) consulted with her primary care physician at East Jefferson General Hospital. His report indicated that Ms. Landreneau stated she had suffered loose stools for approximately two to three weeks before being admitted. Dr. Dulitz felt she was suffering from the symptoms “probably” secondary to an infection. She was given antibiotics. Laboratory test reports taken at the hospital showed no salmonella or other related bacteria. Although Ms. Landreneau continued to see Dr. Dulitz when she was released, no medical reports from him were in evidence.

|,-,Copeland’s also introduced an affidavit from Crystal Young, executive kitchen manager at the restaurant during the time in question, who stated that she was not aware of any other claims of food-borne illness made during her employment. A second affidavit from Patricia Amstutz, risk manager at A1 Copeland Investments, Inc., indicated that she was unable to locate any record of other food-borne illness claims in the three months both preceding and following the incident at issue. The final affidavit was from Barbara Patterson, claims specialist at Liberty Mutual, Copeland’s insurer, who also stated that no other complaints of food-borne illness had been made against the restaurant.

At the hearing on the motions, Ms. Lan-dreneau’s counsel admitted that an expert opinion was necessary and that there was no medical evidence to support or deny the claim of food poisoning. The “major link” was the fact that Ms. Roberts suffered the same symptoms after eating the same meal. Ms. Landreneau requested time to obtain a “proper expert,” not a physician, to testify to the dynamics of food infection and food poisoning.

To meet his or her burden of proof in a food poisoning case, the plaintiff must prove that the deleterious condition existed in the product when it was purchased. The plaintiff must further prove the existence of a causal relationship between the illness or injury and the consumption of the food. In fulfilling this burden of proof, “it is not necessary for the consumer to negate every conceivable cause but he must show that it is more likely than not that the food’s condition caused the injury of which he complains.”

“The courts have never compelled a plaintiff to produce an actual analysis of the food consumed in order to | (¡establish its unwholesome condition. Rather, the courts have been willing to infer the deleterious nature of the food consumed from the circumstances surrounding the illness. In all of the cases in which there has been successful recovery, the plaintiff has shown that the food was consumed by him, and that no other food which might reasonably be assumed to have caused the illness had been consumed within a number of hours before or after the consumption of the suspect product. The plaintiff has also had medical opinion to the effect that it was probable that his illness was caused by the consumption of the particular product involved. In addition, the successful plaintiffs in the above cases have been able to show some other independent circumstance, which tends to prove his case....”

In Fuggins, supra, the court found that the defendants successfully shifted the burden of going forward by showing that the medical evidence was inconclusive concerning whether or not the plaintiffs illness was caused by food poisoning. The defendants also called into question whether or not there was any evidence that the plaintiffs condition was caused by any ingredient in the hamburger served at its restaurant. The plaintiff there failed to present any opposing documentation to defeat the defendants’ motion for summary judgment relying on oral argument at the hearing in her attempt to avert summary judgment. The Second Circuit concluded: “In sum, plaintiff failed to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof on the issues of causation and liability at trial. Consequently, no genuine issue of material fact exists....”

Here, there is no diagnosis of food poisoning. The only reference to food-borne bacteria in the medical records presented indicated the absence of salmonella. Ms. Landreneau admitted that her meal did not appear or taste unusual or spoiled. Finally, Ms. Landreneau’s counsel stated to the court that she did not |7have, nor would she seek, medical evidence, but, rather, the opinion of a non-medical expert on food infection and food poisoning. She relied on the concurrent illness of Ms. Roberts who ate the same salad at the same time. This is insufficient to carry the burden of proof necessary to defeat a Motion for Summary Judgment.

For the foregoing reasons, the judgment is affirmed. Plaintiffs/appellants are assessed all costs of this appeal.

AFFIRMED.

      . Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730.

      . Fuggins v. Burger King, 33,473 (La.App. 2 Cir.5/10/00), 760 So.2d 605.

      . Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21; Mack v. Shoney's Inc., 07-922 (La.App. 5 Cir. 3/11/08) 983 So.2d 114.

      . Hairston v. Burger King Corp., 33,587 (La.App. 2 Cir. 6/21/00), 764 So.2d 176.

      . Id.

        . Griffin v. Schwegmann Bros. Giant Supermarkets, Inc., 542 So.2d 710, 712 (La.App. 4 Cir. 1989); See also, Foster v. AFC Enter., Inc., 2004-1014 (La.App. 3 Cir. 3/2/05), 896 So.2d 293, writ denied, 2005-0839 (La.5/13/05) 902 So.2d 1027.

      . Foster, 896 So.2d at 296 (citing Lee v. Church's Fried Chicken, 396 So.2d 374, 375 (La.App. 3 Cir. 1981)).

      . Fuggins, 760 So.2d at 608.