author: BROWN, Chief Judge.

text:
    David HARTER and Jan Harter Pipkin, Plaintiffs-Appellants v. Earl M. HARTER, III and Harter Oil Company, Defendants-Appellees.
    No. 48,426-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 2, 2013.
    Rehearing Denied Nov. 14, 2013.

      Michael S. Coyle, Ruston, William A. Jones, Jr., for Appellants.
    Jerald R. Harper, Shreveport, for Ap-pellees.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

| plaintiffs, David Harter and Jan Har-ter Pipkin, filed this breach of contract action against their brother, defendant, Mike Harter and his business, Harter Oil Company. Both plaintiffs claimed that they each purchased a 25% working interest in certain mineral leases from Harter Oil. The price was $250,000 for each 25% interest. Harter Oil Company agreed to finance the purchase price. The debts would be paid from funds arising out of or attributed to the working interests conveyed. There were no written assignments or promissory notes. Plaintiffs claim that defendants unilaterally terminated their ownership interests. Following the presentation of plaintiffs’ case, the trial court granted defendants’ motion for “directed verdict” and dismissed plaintiffs’ action with prejudice pursuant La. C.C.P. art. 1672(B). However, Article 1672(B) of the Louisiana Code of Civil Procedure relates to an involuntary dismissal. Lawyers and judges frequently use the terms “directed verdict” and “involuntary dismissal” interchangeably. However, the former applies only to jury trials and the latter to non-jury trials. Finding that plaintiffs presented sufficient evidence to prove that there was a valid oral transfer of the working interests, we reverse the trial court’s ruling and remand for further proceedings.

| zDiscussion

Facts

Marilee Davis Harter died on December 24, 2005. She was predeceased by her husband, Earl Michael Harter, Jr., with whom she had four children: Steven S. Harter (“Steve”), Earl Michael Harter, III (“Mike”), David Allen Harter (“David”), and Jan Harter Pipkin (“Jan”). Pursuant to their mother’s last will and testament, Steve was named as the Independent Administrator of the estate. The four children were residuary legatees owning a one-fourth interest each. Steve Harter, in his capacity as the Independent Administrator, sued Mike Harter. A settlement was reached. Mike was to pay off three promissory notes totaling $575,000 and was to purchase the interest of Harter Energy, LLC, in certain oil and gas leases for the sum of $1 million cash. These mineral leases were transferred to Harter Oil Company which was 100% owned by Mike. In return, Mike forfeited his interest in the estates which would proportionally increase the remaining shares of the other heirs. Thus, each of the three remaining heirs now held a one-third interest in the mother’s estate. Mike released all rights he might have against the estate or the remaining heirs or arising out of Steve’s handling of the estate. An assignment of the mineral interests to Harter Oil was executed by all parties. The leases transferred included Urania G and Tensas Delta, as well as seven other leases. The sale was made effective as of July 1, 2007.

Neither David nor Jan worked and each was receiving monthly payments of $6,000 from their mother’s estate; however, David and Jan felt |Rthat Steve was mishandling the estate’s money. After discussing problems concerning the estate, David, Jan, and Mike agreed that Harter Oil would sell a 25% interest to David and a 25% interest to Jan in the leases Mike had purchased from the estate. The purchase price was $250,000 per sibling for a total of $500,000. The purchase price was financed by Harter Oil at seven percent interest. Harter Oil’s internal records showed the actual amount of each of the loans to be $253,438, which included closing costs. The loans were to be paid out of the working interest revenues assigned to David and Jan. In return, David and Jan agreed to institute legal action to remove Steve as the Independent Administrator of the succession and that any recovery, including real estate, cash, and oil and gas leases, would go to Mike. In addition, Mike agreed to loan the money to David and Jan to finance the cost of the litigation against Steve. In his testimony, Mike was asked, “You knew you were not guaranteed success (in the litigation against Steve) were you?” Mike’s response was, ‘Tes. But David was telling me there was $46 million in the estate so I thought there was a pretty good chance that there would be something left.”

At some point in the latter half of 2007, Mike instructed Harter Oil’s corporate officer and secretary, Roslyn Hull, to make an entry in Harter Oil’s internal records showing the transfer of a 25% interest each to Jan and David in the subject oil and gas leases. The amount of production from these leases was to be attributed retroactively from July 1, 2007. Initially, all of David and Jan’s working interest revenues from July 1, 2007, until LDecember 81, 2007, were applied to the purchase loan. David and Jan received no cash payments during this period; however, they were issued 1099 forms by Harter Oil showing compensation to each in the sum of $148,187 and David and Jan paid the taxes due for 2007.

In late 2007, David, Jan, and Mike attended a meeting with attorney Billy Pes-nell to discuss his representing David and Jan in the legal action against Steve. On December 15, 2007, Mike issued a $10,000 personal check payable to Pesnell as a fee advancement. In anticipation of Steve’s negative reaction to the lawsuit and fear that he may withhold David and Jan’s monthly payments from the estate, a modification of the alleged agreement was made. Mike agreed to make $6,000 monthly payments from their working interests to David and Jan commencing on January 1, 2008. The cheeks were issued by Harter Oil. On April 1, 2008, David requested that Mike increase his and Jan’s monthly payments. Mike and David modified the payment provision to show that Harter Oil paid David and Jan all of their working interest revenues, less $8,000 per month which was applied to the balance of their loans. At that time checks for $17,342 were issued to both David and Jan. Mike confirmed the modification of the original payment agreement in an April 4, 2008, email, which stated, in relevant part, “will pass on all net revenues after note is paid ...”

Harter Oil’s books and records listed David and Jan as working interest owners for each lease established. The accounts receivable ledger showed David and Jan’s purchase price loans, the credits for their monthly loan payments, and the interest charges. The company’s lease analysis |sreports showed David and Jan as owners. Harter Oil sent them regular monthly reports such as joint interest billing and lease operating expense reports. David and Jan were both sent 1099 forms from Harter Oil for 2008 showing compensation of $236,712 each for that year.

In brief, defendants state that, “with this internal entry on the Harter Oil Company software, Jan and David would appear to be working interest owners for accounting purposes. Literally dozen of documents could be generated from the system which made them appear to be working interest owners.” Specifically, Mike testified under oath that, “I said (to Rosalyn Hull) put it on the books as working interest owners. Yes, I told her to treat it like a sale.” At trial, when asked if he implemented the agreement, Mike replied, “[W]ell, if you mean by implementing by me putting it in my books of my company for accounting purposes, yes.”

During this time period, David sent Mike three written requests asking that the parties finalize the purchase of the oil properties, which include a standard promissory note on which David had handwritten the terms. Despite these requests, no written agreement or promissory notes were executed. Notably, none of the drafts from David included the obligation of plaintiffs to file suit against Steve.

Mike decided to sell two of Harter Oil’s leases acquired from the estate, Urania G and Tensas Delta, to Voyager Energy for a purchase price of $2.5 million (he actually received $2,070,968) after he received a letter of interest from Voyager on September 2, 2008. When Voyager conducted its Ifidue diligence, it reviewed Harter Oil’s records and discovered that in addition to Harter Oil there were four working interest owners: David and Jan together had 50%, Edward Gaiennie and Gerald Burroughs each had 7.5% and Harter Oil the remaining 35%. Only Harter Oil’s original assignment was recorded in the public records. Shortly thereafter Mike instructed Roslyn to remove David and Jan from all of Harter Oil’s records as of August 2008. Burroughs and Gaiennie were paid their share of the sale proceeds. On September 28, 2008, Mike sent a handwritten note to David and Jan notifying them of his dissatisfaction with the lack of progress made in their suit against Steve. The note also stated that Mike would compensate both David and Jan $12,000 per month for the remainder of the year, at which point they would re-evaluate their “deal.” Harter Oil made payments of $12,000 per month to David and Jan for the months of September, October, and November 2008. Mike ceased making payments entirely after November 2008. Mike testified that these payments were not from the working interests but were personal loans.

On October 26, 2008, David sent an email to Mike stating that he and Jan had paid attorney Pesnell an additional $10,000, and a draft of the lawsuit was to be distributed for approval no later than October 30, 2008. On December 17, 2008, David and Jan filed a petition against Steve to recover damages for the breach of fiduciary duty or mismanagement of the succession. David and Jan entered into settlement agreements with Steve on or before January 14, 2009. Under that agreement, Jan and David each received (what they actually already owned) a 1/3 share of the estate |7without any compensation for damages. Mike claims that he was never informed of this settlement or of its terms.

In May 2011, Mike sold the remaining leases acquired from the estate plus other leases owned by Harter Oil to RYCA Energy (“RYCA”) for a total of $11.2 million. Mike testified that Harter Oil received $11,036,721, but, due to expenses, Harter Oil netted only about $10 million. David and Jan claim that their working interest shares in these sales should have been $798,078 from Voyager and $1,012,956 from RYCA.

Involuntary Dismissal

A motion for involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Gray v. City of Monroe, 41,087 (La.App.2d Cir.05/17/06), 930 So.2d 1148. When a party fails to carry his burden of proof there is no necessity for the opposing party to rebut insufficient evidence. Humphrey v. Humphrey, 614 So.2d 837 (La.App. 2d Cir. 1993). The appellate court should not reverse an involuntary dismissal in the absence of manifest error. Id.

Mike argues that because the mineral interests in question are classified as incorporeal immovables, they are insusceptible of delivery. As a result, he urges that the transfer failed to meet the delivery requirement set forth in Article 1839.

Requirements For Valid Transfer of Mineral Interest

A working interest in an oil and gas lease is a mineral right. La. R.S. 31:18 provides that a mineral right is an incorporeal immovable. It is ^alienable and heritable and subject to the laws of registry. Mineral interests are subject to the general rules regarding immovables set forth in the Louisiana Civil Code. La. R.S. 31:2. The Civil Code states that rights and actions that apply to immovable things are incorporeal immovables. Im-movables of this kind include personal ser-vitudes established on immovables, predial servitudes, mineral rights, and petitory or possessory actions. La. C.C. art. 470; Trident Oil & Gas Corp. v. John O. Clay Exploration, Inc., 622 So.2d 1191 (La.App. 2d Cir.1993).

La. C.C. Art. 1839 provides:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, • an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.
An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.

Two requirements must be met for a valid oral transfer of immovable property, namely, actual delivery of the property and recognition by the transferor under oath. Delivery must be actual, that is, the physical possession of the property must be in the transferee who claims title thereto. That is so because, in the absence of a writing, the symbolic delivery that always accompanies an authentic act of transfer simply cannot have taken place. Delivery alone is not enough, however, as possession might have been given to the alleged transferee in performance of an obligation arising from a contract of lease, or for custodial purposes, rather than in performance of a contract that effects a transfer of ownership. For that 19reason, actual delivery of the property to the transferee must be followed by recognition of the transfer by the transferor when interrogated on oath. Saul Litvinoff, 5 La. Civ. L. Treatise, Law Of Obligations § 12.40 (2d ed. 2001).

Once the two requirements are met, an oral transfer of immovable property is valid because, when taken together, those requirements perform the same evidentia-ry function as, and perhaps even in a stronger way than, a writing would perform. Id.

In Guillotte v. Wells, 485 So.2d 187 (La. App. 2d Cir.1986), this court held that the delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes “tradition.” Guillotte, supra; Langevin v. Howard, 363 So.2d 1209 (La. App. 2d Cir.1978). In Guillotte, the plaintiffs constructed a residential gas line which spanned from their home across the defendant’s property. The defendant judicially admitted granting the plaintiffs verbal permission to construct and utilize the gas line. This court opined that the plaintiffs’ construction and use of the gas line satisfied the requirement of “delivery.” Guillotte, supra.

In order for property to be actually delivered, the immovable which is the object of the verbal sale must have been transferred or placed into the possession of the buyer. The determination of delivery must be ascertained by the circumstances of each case. Martin v. Brister, 37,011 (La.App.2d Cir.07/23/03), 850 So.2d 1106, writ denied, 03-2374 (La.l 1/21/03), 860 So.2d 550.

In the case sub judice, Mike Har-ter’s actions constituted an actual delivery of the two 25% working interests. Harter Oil’s internal records [^indicate a transfer of 25% working interests to both David Harter and Jan Pipkin and showed loans to each representing their purchase payments. Additionally, Harter Oil created documents indicating the transfer and labeled them “David Harter and Jan Pip-kin’s share of ‘Energy Purchase’.” Harter Oil’s accounts receivable ledger reflected the total amount of the purchase price loans. David and Jan were added to the “ownership decks” as working interest owners. Initially, the money earned from their working interests was applied toward the loans. Harter Oil issued David Harter and Jan Pipkin monthly checks from January until November 2008, as well as 1099s for the years of 2007 and 2008. David and Jan were kept abreast of production through regular monthly joint interest billing reports and lease operating expense reports sent by Harter Oil. Based on the company’s records, Mike Harter treated the two other working interest owners, Gaiennie and Burroughs, in the same manner as David and Jan. During his testimony, Mike admitted that an objective third person viewing Harter Oil’s records would assume that David and Jan were working interest owners. In September 2008, Mike terminated David and Jan’s interests and “changed back” the records. This court finds that based upon the facts presented above, Mike delivered the interests by placing David and Jan in possession of ownership.

Secondly, Mike contends that he unequivocally denied transferring the working interests to David and Jan every time he was interrogated under oath.

|nThis court has held that only the admission under oath by the grantor or the transferor may be used against him in an effort to establish a verbal immovable property transfer. Langevin, supra. Jurisprudence establishes that article 1839 requires the recognition of the transfer or delivery by the transferor under oath, not necessarily that the transferor judicially confess the ultimate conclusion. Langevin, supra; Pierce v. Griffin, 95 So.2d 190 (La.App. 1st Cir.1957).

This court held that the transfer of rights pertaining to an incorporeal immovable may be verbally created upon the transferor’s judicial admission of delivery. In Langevin, supra, the defendant admitted at trial that he accepted a $200 check from his neighbor, the owner of the dominant estate, in exchange for permission to utilize the servient estate owner’s driveway for two years. This court found that the defendant’s admission of accepting the plaintiffs payment and allowing him use of the driveway constituted a verbal creation of a predial servitude.

Mike asserts that David and Jan failed to prove that he recognized the transfer of mineral interests under oath because he never judicially admitted transferring the working interests. We disagree and find that the art. 1839’s requirement of “recognition under oath” is satisfied by Mike’s admissions concerning the events surrounding the agreement during his trial testimony.

While under oath, Mike admitted several pertinent facts concerning the delivery of the working interests. He admitted issuing monthly payments to David and Jan from January 2008 until August 2008 which were derived from the leases’ revenues. Mike admitted instructing Roslyn 1 i2Hu!1 to make entries in the company’s internal records evidencing a transfer of 25% of the working interests to both David and Jan and to add them as working interest owners to the ownership decks. We find that Mike’s admissions made during trial constitute an oral confession under oath. Since Mike’s actions evidence an actual delivery of the interests and he subsequently recognized such delivery under oath, the requirements for a valid oral transfer found in Article 1839 have been met.

In a separate assignment of error, Mike argues that the agreement between the parties was merely tentative because all parties agreed to reduce the agreement to writing at a later date. As a result, Mike argues that his consent was suspended pending the agreement by all parties on the details of the transfer and the reduction of that agreement to a written form executed by all parties.

Louisiana law provides the necessary requisites in order for a sale to be perfected: the thing; the price; and the consent of the parties. La. C.C. art. 2439. The thing and price were clearly shown. It is the third element, consent, which Mike maintains was absent because the confect-ed agreement was never completed due to the absence of a final writing evidencing the terms. Therefore, Mike argues that the transfer of the working interests was never perfected. Mike persuasively cites Breaux Bros. Construction Co. v. Associated Contractors, Inc., 226 La. 720, 77 So.2d 17 (La.1954), in which the plaintiff sued for breach of an oral contract that the plaintiff had with the defendant to move dirt from drainage canals. In Breaux Bros. Construction Co., supra, the court held that consent is suspended when | mparties to an oral contract agree to later reduce such agreement into a writing. The distinguishing factor in the case at hand versus Breaux Bros. Construction Co., supra, is that in that case, the work on the canals had not commenced at the time the contract was disputed; therefore, performance had not begun.

The courts have held that when parties substantially comply with an oral agreement, neither one can subsequently withdraw on the basis that they failed to execute a writing despite the fact that all parties had initially agreed to reduce their agreement to writing. Southern Scrap Material Co. v. Commercial Scrap Materials Corp., 239 La. 958, 120 So.2d 491 (La. 1960); O’Glee v. Whitlow, 32,955 (La. App.2d Cir.04/07/00), 756 So.2d 1288. In O’Glee, supra, the plaintiff entered into an agreement with the defendant to sell his café. The defendant drafted a document in his own handwriting entitled “promissory note” that contained the purchase price, interest rate, and an amortization schedule for repayment. Both parties testified that they had agreed that a subsequent “sale document” would be drafted containing the terms of the sale. Regardless, the plaintiff transferred possession of the café to the defendant who began operating it and making monthly payments in accordance with the amortization schedule. Within a year of making the oral agreement, the defendant ceased making payments, claiming that the sale was never perfected due to lack of a written sales agreement. This court ruled that the defendant’s actions constituted substantial performance under the confected agreement. As such, the sale of | uthe café was perfected and the defendant could not withdraw because the agreement was not reduced to writing. O’Glee, supra.

In the case at hand, we find that the agreement to transfer the working interests in the leases was complete. A contract may be consented to by action or inaction. La. C.C. art. 1927. Even if the parties had believed that their agreement would be reduced into writing at a later date, Mike sufficiently admitted to the transfer as required by Article 1889 and Harter Oil’s substantial performance established consent.

After a review of the evidence presented, we find that the trial court erred in concluding that the evidence was insufficient to prove an assignment of the working interests and in dismissing plaintiffs’ action before defendants’ presentation of evidence.

Conclusion

For the reasons set forth above, this court reverses the trial court’s judgment granting defendants’ request for involuntary dismissal of plaintiffs’ action and remands the matter for the receipt of defendants’ evidence and a decision on the entire record. Taylor v. Tommie’s Gaming, 04-2254 (La.05/24/05), 902 So.2d 380. Costs of this appeal are to be paid by defendants, Earl M. Harter, III, and Har-ter Oil Company.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW and MOORE, JJ.

Rehearing denied.

      . La. C.C.P. art. 1672(B) provides: In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Mike and Roslyn were the only employees of Harter Oil.

      . Thus, the leases purchased by Mike from the estate produced income of more than $500,000 a year.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Sandra PRIMROSE, Plaintiff-Appellant v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 48,370-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 2, 2013.
    Rehearing Denied Nov. 14, 2013.

      The Law Office of Allen Cooper, Shreveport, by J. Allen Cooper, Jr., for Appellant.
    Blanchard, Walker, O’Quin & Roberts, Shreveport, by Jerry Edwards, for Appel-lee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

|TIn this trip and fall case, PlaintiffiAp-pellant Sandra Primrose is appealing the trial court’s decision to grant Defendant/Appellee Wal-Mart Stores, Ine.’s (hereinafter referred to as ‘Wal-Mart”) motion for summary judgment. The trial court found that the exposed corners of the display were open and obvious and did not present an unreasonable risk of harm. For the reasons stated herein, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On September 8, 2009, Sandra Primrose tripped on a watermelon display at the Wal-Mart store in Minden, Louisiana. She retrieved a watermelon from the display, and subsequently tripped over a corner of the display as she was walking back to her shopping cart. Ms. Primrose, who was 73 years old at the time of her deposition, sustained a concussion and other serious injuries as a result of the accident.

Ms. Primrose filed suit for damages on September 8, 2010. On October 15, 2012, Wal-Mart filed a motion for summary judgment, and a hearing on the motion was held on December 4, 2012. After reviewing pictures of the area where Primrose tripped and fell, the trial court noted that he “does not see how it’s not open and obvious.” Wal-Mart’s motion was granted.

Ms. Primrose now appeals, urging three assignments of error.

LAW AND DISCUSSION

In her first assignment of error, Ms. Primrose asserts that the trial court erred by using summary judgment to determine whether Wal-Mart’s conduct constituted negligence. In the second assignment, Ms. Primrose | ¡¡.asserts that the trial court erroneously determined that “the low protruding corner of the pallet” was open and obvious because that issue should not have been determined by a summary judgment. In her third and final assignment of error, Ms. Primrose argues that the trial court erred in finding that there are no genuine issues of material fact that preclude summary judgment. Since these assignments of error are interrelated, we will address them together to avoid repetition.

Ms. Primrose argues that the following issues of material fact should have precluded summary judgment:

1. Whether the protruding corner of the crate was visible to her under the circumstances presented in this case.
2. Whether the warning written on the side of the box near the protruding corner of the pallet was visible to her from the direction she was walking.
3. Whether the warning provided by Wal-Mart was adequate under circumstances presented in this case.
4. Whether Wal-Mart acted reasonably in not cutting the protruding corners of the pallet off or alternatively in not putting a square box instead of an octagonal shaped box on the square pallet so that the corners of the pallet did not protrude.
5. Whether Wal-Mart acted unreasonably by placing a trash can very near the watermelon display creating a very narrow path to walk by the display causing her to have to walk close to the watermelon display and the protruding corner of the crate.
6.Whether Wal-Mart knew or should have known that the customers’ act of carrying a watermelon back to their cart would obscure their view of the floor and the area near the floor.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ricks v. City of Monroe, 44,811 (La.App.2 Cir.12/9/09), 26 So.3d 858, writ denied, 2010-0391 (La.5/28/10), 36 So.3d 247. Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969.” The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is Lappropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks, supra; Freeman v. Teague, 37,932 (La.App.2 Cir.12/10/03), 862 So.2d 371.

Merchant liability for slip or trip and fall eases is governed by the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6, which places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising out of a fall on the premises. This statute provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of this cause of action, all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
|s3. The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.
C.Definitions:
1. “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Additionally, La. C.C. art. 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124; Richardson v. Louisiana-1 Gaming, 10-262 (La.App.5th Cir.12/14/10), 55 So.3d 893. Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risk of harm, and warn persons of known dangers. Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43. The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091. In addition to proving the above three elements, a plaintiff must come forward with positive evidence showing that the |6damage causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of its existence. White v. Wal-Mart Stores, 97-0393 (La.9/9/97), 699 So.2d 1081.

Defendants generally have no duty to protect against an open and obvious hazard. Dowdy, supra. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Caserta v. Wal-Mart Stores, Inc., 2012-0853 (La.6/22/12), 90 So.3d 1042.

In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of:

1. the utility of the complained-of condition;
2. the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition;
3. the cost of preventing the harm; and
4. the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature.

Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Russell Morgan’s Bestway of La., L.L.C., 47,914 (La.App.2d Cir.4/10/13), 113 So.3d 448.

In this case, the affidavit of Scott Harnden, who was the store manager at this Wal-Mart location at the time of Ms. Primrose’s accident, was submitted as evidence. In this affidavit, Mr. Harnden stated that the |7corners of the display were visibly marked with warning signs. He further stated that this type of display was customarily used by Wal-Mart for the display of produce. More specifically, the display at issue had been used at this Wal-Mart location for the display of produce for a minimum of four years prior to the incident. Mr. Harnden stated that he was never advised of any incident involving this display prior to Ms. Primrose’s accident.

A review of the photos shows the visible warning signs posted on the corners of the display. A trash can is located near one side of the display, but it does not obstruct the path alongside the display.

When applying the four factors to determine if the display was unreasonably dangerous, we first find that the display’s utility is relatively high, since it had been used for at least four years to display produce. Addressing the second factor, we find that based on the display’s large size, coupled with the fact that there is no record of any incident involving the display prior to Ms. Primrose’s accident, the likelihood that a customer would be harmed by the display is slight. Although the cost of creating a different display or modifying the current display was not specifically addressed in the record, it has the potential of being costly. Addressing the final factor, we find that Ms. Primrose’s act of transporting her watermelon from the display was not extraordinary, nor was it dangerous by nature.

We disagree with Ms. Primrose’s contention that Wal-Mart “created a trap” for her. Wal-Mart gave adequate warning via its “Watch Step” signs posted on each of the display’s corners. Additionally, Wal-Mart did not instruct her to pick her watermelon and take several steps around the display |swith it. We note that perhaps a safer option for Ms. Primrose would have been to push her shopping cart close to the display, and “scoop” her watermelon into her cart. That option would not have required her to take any steps, thus avoiding the unfortunate incident that occurred.

Based on these undisputed facts, we agree with the trial court’s decision to grant Wal-Mart’s motion for summary judgment, after it correctly determined that the exposed corners of the display were open and obvious and did not present an unreasonable risk of harm. Since Ms. Primrose failed to prove the necessary elements required to support her liability claim pursuant to La. R.S. 9:2800.6, we cannot impose any legal duty upon the defendant. Therefore, these three assignments of error have no merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to Plaintiff/Appellant, Sandra Primrose.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW and MOORE, JJ.

Rehearing denied.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Romale PERNELL.
    No. 2013-KA-0180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 2, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant/Defendant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO.)
   PAUL A. BONIN, Judge.

| jornale Pernell, the defendant, was found guilty as charged of the second degree murder of Richard Bruce. The trial judge later sentenced Mr. Pernell to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. First, Mr. Pernell appeals his conviction, arguing that no rational fact-finder could have found him guilty of second degree murder and that, as the remedy, we should enter a judgment of guilty on the lesser included offense of manslaughter. Second, Mr. Pernell asserts that we should reverse his conviction and order him a new trial because he has been denied his constitutional right to judicial review based upon a complete record through the material omission of documents and exhibits from trial court proceedings bearing on the merits of his appeal. Third, Mr. Pernell argues that his sentence is unconstitutionally excessive in light of his youthful age of nineteen years old at the time of the commission of this offense.

Mr. Pernell’s argument that the trial court’s judgment of guilty was irrational is reviewed under the well-known Jackson v. Virginia standard. See 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Mr. Pernell, however, is not arguing that the essential elements of second degree murder were not proven beyond a reasonable doubt, but rather that no rational fact-finder could have found that Mr. Per-nell had not proven the mitigating factors entitling him to a judgment of manslaughter by a preponderance of the evidence. See State v. Lombard, 486 So.2d 106, 110-111 (La.1986). After reviewing the judgment, we find that a rational trier of fact could find that Mr. Pernell did not prove the mitigating factors by a preponderance of the evidence. Furthermore, because Mr. Pernell’s argument necessarily concedes that all of the essential elements of second degree murder were proven beyond a reasonable doubt, we therefore affirm Mr. Pernell’s conviction.

Mr. Pernell argues that he has been denied his constitutional right to judicial review “based upon a complete record of all evidence upon which the judgment is based,” La. Const, art. I, § 19, due to the loss of crime scene photographs and diagrams marked-on by witnesses at trial. We conclude that, while the lost or missing exhibits were omitted from the record of the trial on appeal, neither the defendant’s ability to identify and assign errors nor our duty to discover errors patent on the face of the record were prejudiced by the omission of the marked trial exhibits. See La.C.Cr.P. art. 920. We are confident that we are able to afford Mr. Pernell full and meaningful review.

We would have considered Mr. Pernell’s claim regarding the excessiveness of his sentence, but have found an error patent requiring remand because the trial | ..judge failed to act on Mr. Pernell’s pending motion to reconsider his sentence. See La. C.Cr.P. arts. 881.1 A(l) and 881.2. We thus conclude that the trial judge shall, on remand, reconsider the imposition of the life sentence at hard labor without the benefit of parole, probation, or suspension of sentence under the directives set forth in State v. Sepulvado, 367 So.2d 762 (La. 1979), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

We turn now to a more complete explanation of our decision.

I

Mr. Pernell does not dispute that he intentionally fired the shot which killed Richard Bruce, who was also not yet twenty years old at the time. The bullet (one of three fired at Mr. Bruce from a distance) entered Mr. Bruce’s head just below his eye and lodged in his skull until it was removed during the coroner’s autopsy. Mr. Pernell’s girlfriend, Telisha Diaz, was an eyewitness to the shooting and testified at Mr. Pernell’s trial.

On the afternoon of the shooting, Mr. Pernell drove Ms. Diaz to the grocery store so that she could purchase some goods for her mother. Because Ms. Diaz was in her pajamas, Mr. Pernell decided that she would remain in the car while he went inside the store. Mr. Bruce was sitting on the steps outside of the store, and, as Mr. Pernell approached, Ms. Diaz observed them arguing with each other. She did not, however, hear the content of the argument. Both Mr. Pernell and Mr. 14 Bruce entered the store together and made their respective purchases. There is no testimony about whether their argument continued inside the store. Both, however, exited the store at about the same time.

Mr. Bruce was standing on the store’s steps exchanging words with Mr. Pernell when Mr. Pernell reached the car and fired his gun at Mr. Bruce. According to Ms. Diaz and the investigating officers, Mr. Bruce was unarmed at time. The only testimony to the contrary of this was given by Donna Diaz, Telisha’s mother, who stated that Mr. Pernell told her that he believed Mr. Bruce was armed. (Mr. Per-nell, however, did not testify at the trial.)

Both the prosecution and the defense seemed to believe that the young men’s argument was related to an incident from the previous day involving Mr. Pernell and Mr. Bruce’s younger brother, Jonas Bruce. According to Jonas, he was playing basketball at a public park in their neighborhood when an associate of Mr. Pernell’s, nicknamed Chicken, parked his car on the playground. Because Jonas knew that this would provoke a neighbor to call the police, he asked Chicken to move his car. This request apparently offended Chicken as he then began to fight with Jonas. Chicken’s friends, Mr. Pernell and “Glen,” also took turns fighting with Jonas. By the time Jonas returned home, his older brother, Mr. Bruce, had already heard details of the fight.

| ¡Apparently Chicken’s instigation of the fight led to neighborhood rumors, initially believed by the police, that Chicken killed Mr. Bruce. Donna Diaz testified that, when Mr. Pernell admitted to her that he killed Mr. Bruce, he also suggested that the entire matter would “blow over” because the police mistakenly believed that the shooter was Chicken. At first, Telisha Diaz lied to investigators by confirming that Chicken was the shooter. Shortly afterwards, however, with some prompting from her mother, Ms. Diaz told the truth about the identity of the perpetrator.

At the time he announced his judgment, the trial judge expressed that this was a premeditated murder, and not manslaughter.

II

In this Part, we explain why we find that a rational fact-finder could conclude that Mr. Pernell did not prove by a preponderance of the evidence that he was guilty of manslaughter rather than second degree murder. As such, we do not enter a judgment on the lesser included offense of manslaughter as Mr. Pernell requests.

A

The crime of manslaughter includes “a homicide which would be murder ... under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l). But 16such provoked “sudden passion” or “heat of blood” are not elements of the offense of manslaughter. They are only mitigating factors which lessen the culpability of a defendant charged with second degree murder. See Lombard, 486 So.2d at 110; State v. Moore, 11-0025, p. 7 (La.App. 4 Cir. 9/7/11), 75 So.3d 22, 26.

When a defendant claims, as here, that the trier of fact’s verdict or judgment of guilty of second degree murder is irrational and that he is entitled to a verdict or judgment of guilty of manslaughter, the burden of proof shifts to the defendant to establish by a preponderance of the evidence that he, having been sufficiently provoked, acted in “sudden passion” or “heat of blood.” See Lombard, 486 So.2d at 111. “Where such proof has been introduced, a second degree murder verdict [or judgment] is inappropriate.” Id. That is, “[w]hen the preponderance of the evidence shows that a homicide was committed in sudden passion or heat of blood which would have deprived an average person of his self-control and cool reflection,” a fact-finder, whether judge or jury, “errs in rendering a [judgment or] verdict of second degree murder.” State ex rel. Lawrence v. Smith, 571 So.2d 138, 136 (La.1990).

In reviewing Mr. Pernell’s claim, we “must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, 17could have found that the mitigatory factors were not established by a preponderance of the evidence.” Lombard, 486 So.2d at 111 (emphasis added). In making this determination under Lombard, we proceed in the same manner as we would for any insufficiency-of-evidence review under Jackson. See 443 U.S. at 319, 99 5.Ct. 2781. Thus, in discharging our review function, we consider 11 all of the evidence ” before the actual fact-finder. Id. (emphasis in original). Proof by a preponderance of the evidence is defined as, taking the evidence as a whole, the fact to be proved is more probable or likely than not. See Crowell v. City of Alexandria Through Snyder, 558 So.2d 216, 218 (La.1990).

This standard of review is highly deferential to the fact-finder as it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We may impinge on the fact-finding function of the trier of fact only to the extent necessary to assure compliance with Jackson. See State v. Macon, 06-0481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. See State v. Gilmore, 10-0059, p. 6 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 212-213. See also Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

“It is not the function of an appellate court to assess credibility or reweigh the evidence.” Macon, 06-0481, p. 8, 957 So.2d at 1286. Moreover, in Louisiana, |8“[i]n criminal cases[, a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const, art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 24 (La.App. 4 Cir. 2/24/10), 32 So.3d 999, 1015. Therefore, in discharging our review function for sufficiency of evidence, we should not re-weigh or reconsider testimony or the reasonable inferences drawn from basic facts. See Gilmore, 10-0059, p. 5, 50 So.3d at 212.

If we were to conclude, however, that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, “could only have found” the defendant guilty of manslaughter, then the conviction for second degree murder must be vacated. Smith, 571 So.2d at 136. And, under such circumstances, the court must render a conviction for the lesser included responsive judgment of manslaughter. See La. C.Cr.P. art. 814A(3); Lombard, 486 So.2d at 111; State v. Heck, 560 So.2d 611, 614 (La.App. 4 Cir.1990).

With these principles of review in mind, we turn to an examination of the evidence in this case to explain why we determine that a rational trier of fact could have concluded that Mr. Pernell did not prove by a preponderance of the evidence that he was acting in “sudden passion” or “heat of blood” when he killed Mr. Bruce.

B

In this case, there is only one eyewitness to the shooting who testified— Ms. Diaz. She did not, however, hear the argument that transpired between Mr. Pernell and Mr. Bruce. Nothing suggests that Mr. Bruce instigated the conflict rather than 19Mr. Pernell. Even if we accepted Mr. Pernell’s statement that Mr. Bruce was the instigator, there is no evidence from the testimony of Ms. Diaz that the shooting was done in “sudden passion” or “heat of blood.” There is no testimony as to the content of any supposed provocation by Mr. Bruce to determine if it was sufficient to deprive an average person of his self-control and cool reflection. The burden of persuasion was on Mr. Pernell, not the prosecution, to establish the existence of such facts by a preponderance of the evidence. See La. C.E. art. 302(1).

Mr. Pernell was a fair distance away from Mr. Bruce when he shot him in the face. Indeed, when he was shot, Mr. Bruce was standing in the same place where he had been sitting when Mr. Per-nell arrived. There is nothing to suggest that Mr. Bruce interfered -with Mr. Per-nell’s entry into the store or with his purchases in the store. The evidence is clear that Mr. Bruce was not pursuing or threatening Mr. Pernell when Mr. Pernell fired his weapon on the unarmed Mr. Bruce. Notably, Ms. Diaz did not testify that, following the shooting, Mr. Pernell appeared angry, agitated, or even upset. In the end, Mr. Pernell was also coolly willing to let Chicken take the blame for the homicide that he committed.

Thus, we hold that a rational trier of fact, viewing all of the evidence (and lack of evidence) in the light most favorable to the prosecution, could conclude that Mr. Pernell failed to prove by a preponderance of the evidence that there were mitigating factors in his killing of Mr. Bruce. The conviction for second degree murder was not irrational. Therefore, we do not render a conviction for manslaughter as requested by Mr. Pernell.

_½111

In this Part, we explain why the omission from the trial record of certain photographs and exhibits marked-on by witnesses at trial did not sufficiently prejudice Mr. Pernell’s appeal. Mr. Pernell’s constitutional rights under Louisiana Constitution Article I, Section 19 were not violated and we will not vacate his conviction and order a new trial.

A

In Louisiana, a defendant convicted of a crime triable by a jury may, as of right, appeal the judgment or verdict to the appropriate court of appeal. See La. Const, art. V, § 10; La.C.Cr.P. art. 912.1. In order to assure that appeals are properly and thoroughly considered, the Louisiana Constitution provides a complementary constitutional right which guarantees “judicial review based upon a complete record of all evidence upon which the judgment is based.” La. Const, art I, § 19. See also State v. Landry, 97-0499, p. 2 (La.6/29/99), 751 So.2d 214, 215. The scope of what constitutes a “complete record” under Article I, Section 19 encompasses “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, and orders, and charges by the court, and objections, questions, statements, and arguments of counsel,” La. C.Cr.P. art. 843, as well as “exact copies of all documentary evidence and other evidence ... in the order in which such evidence was filed.” Uniform Rules, Courts of Appeal, Rule 2-1.7. “It is the duty of the trial court to ‘require that criminal [^proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.’ ” Landry, 97-0499, 751 So.2d at 216 (quoting La. C.Cr.P. art. 17). “The trial judge is duty-bound to see that the court reporter makes a true, complete and accurate record of the trial.” Id. See also La. R.S. 13:961 C(l). And, notably, it is not the duty of the defendant to assure an adequate record exists. See Landry, 97-0499, p. 3, 751 So.2d at 216.

Two justifications form the foundation for the need for complete and comprehensive records. The Supreme Courts of both the United States and Louisiana have endorsed these justifications. First, it is essential in an adversarial legal system, particularly when counsel on appeal was not representing the client at trial, that a dependable record be provided so that errors by the trial court may be reviewed, assigned, and supported by appellate counsel. See Hardy v. U.S., 375 U.S. 277, 280-281, n. 3, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); State v. Robinson, 387 So.2d 1143, 1144 (La.1980); Landry, 97-0499 p. 3, 751 So.2d at 215. And, second, a complete record also ensures that the appellate court may review the transcripts for any errors committed during trial. See Robinson, 387 So.2d at 1144. See also State v. Walker, 02-1350, p. 13 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060, 1067. These two bases align with the scope of our appellate review as set forth in La. C.Cr.P. art. 920, which statute restricts our consideration of errors on appeal to those “designated in the assignment of errors,” and those “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La. C.Cr.P. art. 920.

|i2Not every omission from a record on appeal, however, constitutes a violation of constitutional rights warranting reversal of a conviction and the ordering of a new trial. See Walker, 02-1350, p. 11, 844 So.2d at 1066. Sometimes “an incomplete record may be adequate for [full] appellate review.” State v. Hawkins, 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480. See also State v. Bright, 00-1255, p. 7 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1116-1117. To justify reversal of a conviction and the ordering of a new trial, we must find that the omission from the trial record affects “substantial rights of the accused.” La.C.Cr.P. art 921. This imports the harmless error rule into this analysis. La.C.Cr.P. art. 921 cmt. c. Whether an omission constitutes harmless or reversible error depends on its materiality. State v. Deruise, 98-0541, pp. 10-11 (La.4/3/01), 802 So.2d 1224, 1234; Landry, 97-0499, 751 So.2d at 215. “[I]nconse-quential omissions or slight inaccuracies do not require reversal.” State v. Hoffman, 98-3118, p. 49 (La.4/11/00), 768 So.2d 542, 586. See also State v. Fortenberry, 11-0022, p. 10 (La.App. 4 Cir. 7/27/11), 73 So.3d 391, 397; State v. Allen, 95-1754, p. 11 (La.9/5/96), 682 So.2d 713, 722. The materiality of a given omission is measured by the prejudicial effect of the omission on the defendant in accessing the full scope of appellate review as set forth in La.C.Cr.P. art. 921. See Deruise, 98-0541, p. 11, 802 So.2d at 1234; Fortenberry, 11-0022, p. 10, 73 So.3d at 397. In determining whether an omission has sufficiently prejudiced a defendant, we consider the importance of the omission along with the value, relevance, and nature of other evidence made available in the trial record in light of the specific assignments of |1serror set forth by the defendant as well as the errors patent on the face of the record. See, e.g., Hawkins, 96-0766, p. 8, 688 So.2d at 480. If an omission is found to be material, the defendant’s conviction should be reversed, Hoffman, 98-3118, p. 49, 768 So.2d at 586, and “the interests of justice require that a defendant be afforded a new, fully recorded trial.” Landry, 97-0499, p. 3, 751 So.2d at 215-216.

B

Here, Mr. Pernell argues that the omission of certain exhibits from the trial record has denied his constitutional right to “judicial review based upon a complete record of all evidence upon which judgment is based.” La. Const, art. I, § 19. Many of these exhibits were photographic or documentary, and some of them had marks placed on them by the witnesses during their respective testimonies at trial. Mr. Pernell, however, did not assign this omission as an error in his original brief. Counsel for Mr. Pernell only filed this supplemental assignment of error after we ordered supplemental briefs regarding this issue.

Counsel recognizes that all of the trial testimony and most of the exhibits, although none that were marked-on, are contained in the trial record. The marked-on exhibits missing from the record were lost during Hurricane Katrina many years after Mr. Pernell’s conviction. Mr. Pernell was found guilty of second degree murder on May 28, 2002. A motion for an out-of-time appeal was filed in his case on April 4, 2004. Mr. Pernell sent numerous letters requesting status check on his filing, spanning from May 2005 to November 2011. His motion, however, was not acted upon until December of 2011 when the order of appeal was signed.

| ^Nevertheless, the loss of the marked-on exhibits introduced at trial does not prevent us from providing constitutionally adequate review of Mr. Pernell’s case on appeal. Unquestionably the marked-on exhibits certainly and importantly aided the fact-finder in his understanding of and determination of the locations or placements of Mr. Pernell, the vehicle and Mr. Bruce relative to the store during the moment immediately prior to Mr. Bruce’s death. But much of that same information is accessible to us by reading the transcript and comparing the testimony to the photographic exhibits which are available but not marked on by Ms. Diaz. The recorded testimonies of Ms. Diaz and Detective Robette are more than sufficient to establish that the car was a fair distance away from the door of the grocery store where Mr. Bruce was standing. And, for the purposes of our review, we have accepted that Mr. Pernell was not so close to Mr. Bruce that by pointing a gun in Mr. Bruce’s direction as it was fired is itself sufficient evidence of intent to kill or is necessarily the only reasonable inference to be drawn therefrom. See, e.g. State v. Johnson, 08-1488, p. 10 (La.App. 4 Cir. 2/10/10), 33 So.3d 328, 334. See also State v. Byrd, 2012-0556 (La.6/5/13), 119 So.3d 801; State v. Procell, 365 So.2d 484 (La. 1978).

Thus, the loss of the marked-on exhibits and their omission in the trial record are not material to the dispositive issues in this case, and the omission does not require reversal of the conviction. Therefore, we do not reverse Mr. Pernell’s conviction and do not order a new trial.

_biv

We turn now to the matter of Mr. Per-nell’s sentence.

The exclusive punishment authorized by the Legislature upon conviction of second degree murder is “life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.” La. R.S. 14:30.1 B. At the time of Mr. Pernell’s sentencing in 2002, the trial judge suggested, even encouraged, the filing of a motion to reconsider the sentence, which was done on behalf of Mr. Pernell. See La.C.Cr.P. arts. 881.1 A(l).

The trial judge, however, did not rule upon the motion to reconsider. We find this to be an error patent. See State v. James, 05-1468, p. 3 (La.App. 4 Cir. 10/4/06), 942 So.2d 569, 570; La.C.Cr.P. art. 920(2). We consistently refuse to review the excessiveness of a defendant’s sentence on appeal until the district court has ruled on a pending or outstanding motion for reconsideration. See James, 05-1468, p. 3, 942 So.2d at 570. The remedy under such circumstance is to remand the case so that the district court may consider and rule upon the motion. Id. at 571.

Before we set out our remand instructions, however, we note that, due to the absence of any range whatsoever in the penalty provision for second degree murder, this is not a case where the legislature intends for a sentencing judge to exercise his discretion and impose a sentence which is gradated according to the | ^individualized circumstances of the offense and the offender. Cf. State v. Sepulvado, 367 So.2d at 765. We emphasize, nonetheless, that a sentencing judge is constitutionally authorized to guarantee that sentences are not excessive, id., and, in rare and exceptional cases, a sentencing judge does have the discretion to deviate downward from a legislatively mandated sentence. See State v. Johnson, 97-1906, pp. 8-9, 709 So.2d at 676-677 (Departures downward from a minimum sentence should occur “only in rare situations” ... where the legislature’s sentence is not meaningfully tailored to the offender, the gravity of the offense, and the circumstances of the case); State v. Lindsey, 99-3302, p. 9 (La.10/17/00), 770 So.2d 339, 345-346; Sepulvado, 367 So.2d at 764. See, e.g., State v. Sims, 13-0177, p. 11-12 (La.App. 4 Cir. 8/28/13), 123 So.3d 806, 813, 2013 WL 4565221.

The constitutional prohibition against excessive sentences, and Sepulva do, 367 So.2d at 767, require a sentencing judge, when a defendant properly moves for reconsideration of his sentence, to explicitly determine whether the defendant’s situation is one of those rare and exceptional circumstances that would justify a downward departure from the legislatively mandated and presumptively constitutional sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

We particularly note, however, that we have not reviewed, and are not expressing any view about the merits of Mr. Pernell’s contentions regarding the excessiveness of his sentence.

_jjjREMAND INSTRUCTIONS

We remand this matter to the district court and direct that it conduct a hearing on the defendant’s pending motion to reconsider sentence under the criteria established in Sepulvado, 367 So.2d 762, and Johnson, 709 So.2d 672. If the sentencing judge concludes that Mr. Pernell’s sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence is excessive, and that a downward departure is authorized, he shall impose the most severe sentence that is not constitutionally excessive. Lindsey, 99-3302, p. 5, 770 So.2d at 343. If the sentencing judge decides to downwardly depart from the legislatively mandated sentence either by reason of its duration or, for example, by its restriction on parole eligibility, he shall justify his reduction. See State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669, 669. We reserve the parties’ rights to appeal any adverse ruling by the district court on remand. See, e.g., State v. Rainey, 09-1510, p. 5 (La.App. 4 Cir. 7/21/10), 43 So.3d 1090, 1093.

DECREE

The second degree murder conviction of Romale Pernell for the killing of Richard Bruce is affirmed. The matter, however, is remanded to the district court for a hearing on the defendant’s motion to reconsider his sentence, reserving unto the parties the right to appeal the sentence following the district court’s disposition of the motion.

CONVICTION AFFIRMED; REMANDED FOR RECONSIDERATION OF SENTENCE.

      . We have, as we always do, examined the record for errors patent. See La.C.Cr.P. art. 920(2). We have detected none pertaining to Mr. Pernell's conviction.

      . Ms. Diaz entered into a memorandum of understanding with the district attorney respecting her pending charges, which was disclosed to the trial judge and the defense. The agreement required Ms. Diaz to testify in accordance with her prior statement to the police in exchange for allowing her to plead guilty to accessory after the fact to second degree murder. See La. R.S. 14:25.

      . Mr. Pernell alternatively argues on appeal that his defense of "imperfect” self-defense entitles him to a judgment of manslaughter. We have reviewed the record for any indication that such a defense was urged at trial and can find nothing but his statement made to Donna Diaz. Under the holding of State v. Juluke, we consider this alternative argument no further. See 98-0341, pp. 4-5 (La. 1/8/99), 725 So.2d 1291, 1293 ("The Jaclcson standard also does not provide a defendant with a means of splitting alternative and inconsistent defenses in different forums, raising one defense before the jury and when that fails, a second defense presupposing a different set of facts in an appellate court conducting sufficiency review under Jackson and La. C.Cr.P. art. 821(E).”)

      . Properly speaking, a jury announces a verdict, but a judge without a jury announces a judgment. See La.C.Cr.P. art. 765(8).

      . At a trial the prosecution is not required to prove beyond a reasonable doubt that a defendant did not act in "sudden passion” or "heat of blood.” See Lombard, 486 So.2d at 111 n. 9. And because manslaughter is a responsive verdict or judgment to second degree murder, see La. C.Cr.P. art. 814A(3), no evidence of "sudden passion” or "heat of blood” is needed in order for the trier of fact to return a verdict or judgment of guilty of the lesser included offense. See Lombard, 486 So.2d at 111 n. 9. See also State v. Tompkins, 403 So.2d 644 (La. 1981); State v. Peterson, 290 So.2d 307 (La. 1974).

      . This burden shifting framework with respect to a mitigating factor is constitutionally permissible. See Patterson v. New York, 432 U.S. 197, 209-211, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

      . Thus, we pretermit Mr. Pernell’s assignments of error which raise excessiveness of the sentence or ineffective assistance of counsel relating to the sentence.

      . "No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.” La. Const, art. I, § 20 (emphasis added).


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Tayra R. HALL.
    No. 2013-KA-0453.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

I,In this criminal appeal, the State seeks review of the district court’s judgment granting the motion to quash filed by the defendant, Tayra Hall. Ms. Hall agrees that the district court erred in granting the motion to quash, but she contends that the State is not entitled to any relief on appeal. Rather, she contends that the State’s appeal should be dismissed as abandoned due to its failure to take any steps to proceed with its appeal for almost three years. For the reasons that follow, we find the State has not abandoned its appeal and reverse the district court’s judgment granting the motion to quash.

STATEMENT OF THE CASE

On May 20, 2010, Ms. Hall was charged by bill of information with one count of possession of cocaine in violation of La. R.S. 40:967(C). On June 11, 2010, Ms. Hall was arraigned and pled guilty. Following her guilty plea, the district court conducted a Boykin colloquy to verify that she was knowingly and voluntarily waiving her constitutional rights set forth on the guilty plea form, including her right to trial by jury, her right to confront her accusers, and her ^privilege against compulsory self-incrimination. The district court then requested the State to provide a factual basis for the plea. During the State’s statement of the factual basis, the district court discovered that the police officers had not field tested the substance found on Ms. Hall and that the State had not obtained a crime laboratory report confirming that the substance was cocaine.

Subsequently, Ms. Hall was allowed to withdraw her guilty plea and to enter a plea of not guilty. Ms. Hall also was allowed to file a handwritten motion to quash the bill of information. The sole basis for her motion to quash was the State’s failure to provide evidence that the substance seized from her was a prohibited narcotic. The district court granted the motion to quash from the bench. The State objected to the district court’s ruling and noticed its “intent to appeal and lodge a record.” The district court “noted” the State’s “notice of appeal.” No return date was set at that time.

No further steps were taken to advance the State’s appeal until approximately three years later. On March 27, 2013, the district court set an appeal status for April 8, 2013. On April 2, 2013, the district court’s clerk of court issued a notice of appeal. The record was lodged with this Court on April 10, 2013. Thereafter, the parties timely filed their briefs.

| STATEMENT OF THE FACTS

On May 5, 2010, the police officers stopped Ms. Hall for driving a vehicle with an inoperable license plate light and for a seatbelt violation. A name check revealed that Ms. Hall was driving under a suspension. A vehicle identification number (“VIN”) check revealed that Ms. Hall was driving a stolen vehicle. The officers advised Ms. Hall of her Miranda rights and that she was under arrest. During the search incident to arrest, the officers recovered a crack rock, a purple lighter, and $250.00. Ms. Hall was charged with possession of cocaine. As noted, the officers did not conduct a field test of the substance found on Ms. Hall. Nor did the State obtain a crime laboratory report confirming that the substance was cocaine.

DISCUSSION

The State’s sole assignment of error is that the district court “abuse[d] its discretion when it granted the defendant[’s] motion to quash.” As noted at the outset, Ms. Hall agrees that the district court erred in granting the motion to quash, but she contends that the State’s appeal should be dismissed because it abandoned its appeal. She also suggests that the State’s appeal is procedurally deficient. Before reaching the merits of the State’s appeal, we address the alleged procedural deficiencies in the State’s appeal and the abandonment issue.

Procedural deficiencies in the State’s appeal

Ms. Hall suggests that the State’s appeal is procedurally deficient in the following two respects: (i) the State’s oral notice of its “intent to appeal and lodge |4a record” is insufficient to constitute a notice of intent to appeal; and (ii) the district court’s response of “your notice of appeal is noted” is insufficient to constitute the granting of the motion. Neither of the suggested deficiencies is valid.

First, there is no requirement that the motion for appeal be in writing; an oral motion is sufficient. La.C.Cr.P. art. 914 (providing that “[a] motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.”); see State v. Wright, 95-377, pp. 3-Í (La.App. 3 Cir. 11/8/95), 664 So.2d 712, 714. In this case, the State orally noted its intent to appeal; and the minutes of the court document the State’s oral notice. The State’s oral notice of appeal was sufficient.

Second, the district court’s response to the State’s oral motion — “your notice of appeal is noted” — was sufficient to constitute granting the motion. See State v. Chambers, 07-0398, pp. 2-4 (La. App. 4 Cir. 8/22/07), 966 So.2d 98, 100-01 (finding it insignificant that the district court’s response to the State’s oral notice of intent was “not a problem” and that it did not specifically grant the motion on the record); see also Wright, 95-377 at pp. 3-4, 664 So.2d at 714 (finding that a district court’s comments in response to the State’s oral motion for appeal that “[y]ou may-may consider it timely, but I think you want it in writing” should be construed as granting the motion for appeal).

Abandonment of appeal

Ms. Hall’s principal defense to the State’s appeal is that it should be dismissed as abandoned because the State failed to pursue the appeal for three years. This court recently addressed and rejected this same abandonment argument in State v. Brooks, 13-0540 (La.App. 4 Cir. 9/18/13), 124 So.3d 1129, 2013 WL 5274244. In Brooks, supra, the State timely filed a motion for appeal. The district court timely granted |fithe motion and set a return date of April 18, 2010, but the district court clerk never filed a notice of appeal. Three years later, on March 13, 2013, the trial court set a new return date of April 15, 2013. On the same date, the minute clerk issued a notice of appeal. On March 21, 2013, the clerk of the district court forwarded the notice of appeal to this court. The record was lodged a month after the extended return date. On appeal, the defendant argued that the State’s appeal should be dismissed as abandoned because of the three year delay between the granting of the State’s motion for appeal and the lodging of the record.

Addressing the defendant’s argument, this court first noted the following distinction between civil and criminal appeals:

A civil appeal may be dismissed as abandoned when the parties fail to take steps in its prosecution or disposition for the time periods provided in the rules of the appellate court. See La. C.C.P. art. 561(C); La. C.C.P. art. 2162. Rule 20 of the Fourth Circuit Court of Appeal Local Rules provides that, “when no activity occurs in a [civil] appeal for three years, the appeal shall be dismissed as abandoned,” except in certain circumstances. There are no comparable provisions in the Code of Criminal Procedure or the rules of this Court that authorize the dismissal of a criminal appeal.

Brooks, 13-0540 at p. 2, 124 So.3d at 1131. This court next cited La.C.Cr.P. art. 915.1 and noted that under that article “the failure to timely lodge an appeal or to | fiobtain an extension of the return date should not cause an appellant to lose his right to appeal unless the failure was caused by the appellant.” Brooks, 13-0540 at p. 3, 124 So.3d at 1132. Finally, this court concluded that there was no basis for the defendant’s abandonment argument, reasoning:

Mr. Brooks cites no cases holding that an appeal that was timely moved for by the State should be deemed abandoned merely because the district court personnel failed to lodge the record by the return date or even within three years. He instead cites two cases holding that a defendant who had filed a pleading in the district court but failed to seek a hearing or a ruling on the pleading was deemed to have abandoned it. State v. Fugler, 09-1822 (La.9/17/10), 45 So.3d 1060; State v. Austin, 11-0122 (La.App. 1 Cir. 6/10/11), 99 So.3d 1008. These two cases are distinguishable from this case. In this case, the State timely moved for an appeal, and the district court did not delay in granting the motion. At that point, the burden fell upon the district court personnel, not the State, to have the record lodged. There is nothing in the record to indicate that the State in any way caused the delay. Mr. Brooks asserts only that the prosecutor should have inquired about the appeal during one of the many appeal status hearings held. None of the minute entries, however, reflects that a State representative was present at the status hearings. Furthermore, the district court was in the same, or better, position to determine' the status of the appeal and why it was not yet lodged.
Because there is nothing in the record to indicate that any delay in lodging the appeal was the fault of the appellant— the State — and because there are no statutes or rules of court authorizing dismissal of a criminal appeal as abandoned, we deny Mr. Brooks’ motion to dismiss this appeal as abandoned due to the lapse of time from the granting of the motion for appeal to the lodging of the record in this court.

Brooks, 13-0540 at p. 4, 124 So.3d at 1133.

Another case relevant to the abandonment issue presented in this case is State v. Ross, 06-1328 (La.App. 4 Cir. 3/14/07), 955 So.2d 167. In Ross, supra, the defendant challenged the timeliness of the State’s appeal due to the district court clerk’s delay in lodging the record. Finding the State’s appeal timely, we |7held that once the State timely moves for an appeal, “there is no further action that must be taken by the State until the record is lodged with the court of appeal.” Ross, 06-1328 at p. 4, 955 So.2d at 170. We further reasoned that:

The failure of the trial court, the court reporter, the minute clerk, or the clerk of court [footnote omitted] to perform their functions in connection with the filing of a criminal appeal does not affect the validity of the appeal. La.C.Cr.P. arts. 915(A) and (B)The failure of the trial court, the court reporter, the minute clerk, or the clerk of court [footnote omitted] to perform their functions in connection with the filing of a criminal appeal does not affect the validity of the appeal. La.C.Cr.P. arts. 915(A) and (B)[] and 915.1(B).
In the instant case the motion for an appeal was clearly timely, because it was orally made at the hearing immediately after the motion to quash was granted. Once the notice of appeal was given, the trial court, the court reporter, the minute clerk, and the clerk of court lawere responsible for preparing the record for the lodging of the appeal.

Id. at pp. 4-5, 955 So.2d at 170; see also State v. Jackson, 07-84, p. 19 (La.App. 5 Cir. 6/26/07), 963 So.2d 432, 443 (refusing to dismiss a defendant’s appeal of his conviction when the record was lodged several months after the return date expired without an extension because “[o]nce defendant timely moves for an appeal, which was done in the instant case, the clerk handles the matter thereafter...., the failure to lodge the record is not imputable to defendant.”).

In this case, as in Brooks, the State timely moved for an appeal, and the district court on the same day granted the motion. Similar to the defendant in Brooks, Ms. Hall contends that the State’s appeal should nonetheless be dismissed as abandoned because “the State, who is in the courtroom every day, should not be allowed to have waited three years to undertake the very simple task of calling to the court’s attention to the matter.” She further contends that the State’s indifference to this prosecution and to the judicial process constitutes an abandonment of its appeal. In support of contention that the State’s appeal should be dismissed as abandoned, she cites the same two cases cited by the defendant in Brooks—State v. Fugler, 09-1822 (La.9/17/10), 45 So.3d 1060; and State v. Austin, 11-0122 (La. App. 1 Cir. 6/10/11), 99 So.3d 1008. As we explained in | ⅜Brooks, those two cases are inapposite. Neither of those cases address the issue presented here of the State’s alleged abandonment of its appeal.

Applying these principles, we find that Ms. Hall’s contention that the State abandoned its appeal is without a basis. As in Brooks, we find that once the State timely moved for an appeal and the district court granted that motion, the burden fell upon the district court personnel, not the State, to perform their functions — to prepare the record for appeal and to lodge the record. Thus, the district court’s initial failure to set a return date for the State’s appeal, the clerk’s failure to forward notice of the appeal until April 8, 2013, and the fact that the record was lodged on April 10, 2013, two days after the return date, did not affect the validity of the State’s appeal. Although this case has endured delays, the record reflects that the delays in the appeal process cannot be attributed to the State. Accordingly, we find, as in Brooks, supra, that the State did not abandon its appeal.

In the alternative, Ms. Hall argues that her constitutional rights to due process and a speedy trial will be violated if this court finds the State did not abandon its appeal and reverses the district court’s decision to quash the bill of information— which she concedes is erroneous. The defendant in Brooks made this same argument. Rejecting this argument, this court in Brooks stated:

|inMr. Brooks also argues that if this court vacates the district court’s ruling and remands the matter for further proceedings, his rights to due process and a speedy trial will be denied. There is nothing in the record or Mr. Brooks’ appellee brief that shows in what way he will be prejudiced by going to trial now, and it is his burden of demonstrating that his rights have been violated. We find the appropriate remedy is not dismissal of the State’s appeal; rather, we find it appropriate to instruct the district court on remand to reserve Mr. Brooks’ right to file a motion to quash on the basis that his right to a speedy trial has been denied. If Mr. Brooks elects to file a motion on that basis, the district court can conduct a hearing at which Mr. Brooks can make the requisite showing.

Brooks, 13-0540 at p. 4, 124 So.3d at 1134.

The defendant asserting a speedy trial violation has the burden of demonstrating that his or her right to a speedy trial has been violated. See State v. Bias, 06-1153, p. 3 (La.App. 4 Cir. 12/20/06), 947 So.2d 797, 799. In this case, as in Brooks, nothing in the record or in Ms. Hall’s brief shows in what way she will be prejudiced by going to trial now. Her only allegation in her brief is that but for the district court’s erroneous ruling and the State’s inability to produce a crime laboratory report, she would have pleaded guilty and would have completed her sentence of probation over a year ago. Nonetheless, we find the appropriate remedy in this case, as in Brooks, is not to dismiss the State’s appeal, but rather to reserve Ms. Hall’s right to file a motion to quash on the basis that her right to a speedy trial has been denied. See State v. Reaves, 376 So.2d 136, 137-38 (La.1979) (a motion to quash is the proper procedural mechanism for a defendant to assert a violation of his or her constitutional right to a speedy trial). If Ms. Hall elects to file a motion on that basis, the district court can conduct a hearing at which Ms. Hall may make the requisite showing.

We now turn to the merits of the State’s appeal. Before reaching the merits, we address a preliminary issue of the appropriate standard of review.

| ^Standard of Review

As noted, the State frames its assignment of error as whether the district court abused its discretion in granting the motion to quash. Contrary to the State’s suggestion, we find the appropriate standard of review in this case is not an abuse of discretion, but rather a de novo review. Explaining the reason for applying a de novo standard in this context, Judge Bo-nin, in his concurrence in State v. M.C., 10-1107, p. 10 (La.App. 4 Cir. 2/18/11), 60 So.3d 1264, 1270-71 (Bonin, J., concurring) (citing State v. Roach, 10-0991, p. 4 (La. App. 1 Cir. 12/22/10), 68 So.3d 558, 560), aptly stated:

Although a trial court’s ruling on a motion to quash will generally not be reversed absent an abuse of discretion, see State v. Batiste, 05-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251, a trial court’s legal findings are subject to a de novo standard of review, see State v. Smith, 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504. Here, the trial court’s ruling on the motion to quash was based on a legal finding and is, therefore, subject to this Court’s de novo review.

To summarize, this court in reviewing a motion to quash involving solely a legal issue, such as presented in the instant case, applies a de novo standard of review. State v. Guillott, 12-0652, p. 4 (La.App. 4 Cir. 2/20/13), — So.3d -, - (citing State v. Schmolke, 12-0406, pp. 2-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-99). In cases involving other types of motions to quash involving factual determinations — such as speedy trial violations and nolle prosequi dismissal-reinsti-tution cases — this court applies an abuse of discretion standard. M.C., 10-1107 at p. 10, 60 So.3d at 1270; see also State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3 (explaining that “[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00-3347, pp. 9-10 112(La.5/23/03), 847 So.2d 1198, 1206 (“[b]eeause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion”). Since this case involves solely a legal issue, we apply a de novo standard of review to determine whether the district court erred in granting Ms. Hall’s motion to quash.

Motion to quash

A motion to quash in a criminal case is equivalent to an exception of no cause of action in a civil suit; hence, “ ‘the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.’ ” Schmolke, 12-0406 at p. 3, 108 So.3d at 298 (quoting State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103; see also State v. Bremer, 97-0456, p. 3 (La.App. 4 Cir. 12/10/97), 704 So.2d 917, 919). Addressing the purpose and limitations of a motion to quash, the Louisiana Supreme Court in State v. Byrd, 96-2302, pp. 18-19 (La.3/13/98) 708 So.2d 401, 411, stated:

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

Id.

In this case, the bill of information charges Ms. Hall with a valid offense— possession of cocaine in violation of La. R.S. 40:967(C). Ms. Hall’s motion fails to allege any of the grounds set forth in either La.C.Cr.P. art. 532 or La.C.Cr.P. art. 584. Rather, Ms. Hall’s handwritten motion to quash alleges that “[t]he State 114has failed to provide any evidence that the substance seized from Ms. Hall is a prohibited narcotic” and “[t]here is no finding that the substance is cocaine.” Her motion thus alleges a factual defense, which is not a proper basis for a motion to quash. Stale v. Carter, 11-0859, pp. 2-3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182-1183 (holding that “Mr. Carter’s assertion that the seized pills ‘tested negative for violation drugs’ is a factual defense, which is not a proper basis for a motion to quash” and citing State v. Fox, 09-1423 (La.App. 4 Cir. 7/07/10), 43 So.3d 318); Fox, 09-1423 at p. 6, 43 So.3d at 321-22 (holding that district court erred in granting a motion to quash based on the defendant’s assertion that the State presented no evidence to show that the defendant knew the seized vehicle was stolen); State v. Major, 12-0407, pp. 5-6 (La.App. 4 Cir. 1/16/13), 108 So.3d 288, 291 (holding that the district court erred in granting motion to quash based on its determination that “the State was ‘not in a position’ to carry its burden of proof’); State v. Billard, 03-319, p. 9 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1074 (holding that the defendant’s motion to quash improperly raised factual questions of guilt or innocence). Based on our de novo review of the record, we find the district court erred in granting the motion to quash.

DECREE

For the foregoing reasons, the district court’s judgment granting the defendant’s motion to quash is reversed. This matter is remanded for further proceedings.

1 ^REVERSED

      . Ms. Hall pled guilty in exchange for the State’s recommendation of a two year sentence, suspended, and two years active probation.

      . Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), “[a] guilty plea is not valid unless it is an intelligent and voluntary choice. The defendant must expressly and knowingly waive his right to trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination.” State v. Martin, 599 So.2d 422, 423 (La.App. 4th Cir.1992).

      . The June 11, 2010 minute entry states that "[t]he State’s objection noted for the record and designation of record. Appeal status 7-8-10.” The July 26, 2010 minute entry states that ”[t]he matter was continued without date.”

      . The notice of appeal states that the State filed its motion for appeal on March 27, 2013 and was granted an appeal on the same date. The notice also states that the district court set April 8, 2013, as the return date. Although the clerk forwarded the notice of appeal to this court on April 2, 2013, the notice indicates that it was filed on March 27, 2013. The minute entry on March 27, 2013, states: “[ajppeal forms done. Appeal status in this matter is set for 4/08/13.”

      . Although there is no trial transcript in this matter, the record contains the transcript of the guilty plea hearing. From the transcript, it is possible to glean the basic facts of the alleged offense.

      . The rules regarding obtaining extensions of the return date are set forth in La.C.Cr.P. art 915.1, which provides:
      A. The district court may grant one extension of the return date of not more than thirty days. An extension may not be granted after the return date has passed. The extension may be granted only upon proof presented by the moving party that additional time is necessary due to extenuating circumstances beyond the control of the moving party and that, without the extension, an unusual and undue hardship would be created. A copy of the extension shall be filed with the appellate court and the clerk of the trial court.
      B. Subsequent extensions may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in Article 919. When a subsequent extension is granted by the appellate court, notice thereof shall be given by mail by the clerk of the trial court to all parties. Failure of the clerk of the district court to mail such notice shall not affect the validity of the appeal nor will any error or defect which is not imputable to the appellant affect the validity of the appeal. (Emphasis supplied).

      . The rules governing the procedure and time limits of criminal appeals are set forth in La.C.Cr.P. art. 914, which provides:
      A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
      B. The motion for an appeal must be made no later than:
      (1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
      (2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.
      La.C.Cr.P. art. 915 provides:
      A. When a motion for an appeal is made in conformity with Articles 912, 914, and 914.1 the trial court shall grant or deny the motion within seventy-two hours, exclusive of legal holidays, after the motion is made. The return date shall be seventy-five days from the date the motion for appeal is granted, unless the trial judge fixes a lesser period. When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court.

      B. The minute clerk for each section of the trial court shall forward a copy of the notice of appeal to the clerk of the trial court and to the court reporters responsible for preparing the necessary transcripts, within twenty-four hours, exclusive of legal holidays, of the date the appeal is ordered. The clerk of the trial court shall forward a copy of the notice of appeal to the sheriff having custody of the defendant, to the appropriate appellate court, and to each party, within seven days of the date the appeal is ordered. The party moving for the appeal must forward notice that a motion for appeal has been made to the appropriate appellate court within seven days of the date the motion is made. Failure of the minute clerk, the clerk of court, or the party moving for the appeal, to provide notice shall not affect the validity of the appeal, (emphasis supplied).

      . The State orally noticed its intent to appeal on the same day as the ruling; thus, the State’s appeal was timely under La.C.Cr.P. art. 914(B)(1). State v. Chambers, 07-0398, pp. 3-4 (La.App. 4 Cir. 8/22/07), 966 So.2d 98, 100 (finding the State’s oral notice of intent to appeal made on the same day as ruling timely under La.C.Cr.P. art. 914(B)(1)); see also State v. Ross, 06-1328, p. 5 (La.App. 4 Cir. 3/14/07), 955 So.2d 167, 170 ("the motion for an appeal was clearly timely, because it was orally made at the hearing immediately after the motion to quash was granted”); State v. Jones, 12-0565, p. 4 (La.App. 4 Cir. 4/24/13), 115 So.3d 643, 647 (holding that the State's oral statement, in response to district court’s quashing a bill of information, ”[y]our Honor, note the State’s intent to seek an appeal,” qualified as a timely oral motion for appeal); State v. Greene, 12-2027 (La.3/15/13), 109 So.3d 370 (finding that a defendant’s oral notice of intent to appeal at sentencing constituted an oral motion for appeal and preserved the defendant’s right to seek appellate review of her conviction and sentence).

      . As we noted in Brooks, 13-0540 at p. 4, 124 So.3d at 1135, n. 3;
      In State v. Fugler, 09-1822 (La.9/17/10), 45 So.3d 1060, the pleading at issue was a timely filed motion to reconsider sentence. After twelve years, the defendant sought a ruling on the motion; apparently the district court vacated his original sentence and set the matter for a hearing. The Supreme Court reinstated the defendant’s original sentence and vacated the district court’s decision to set the matter for a hearing on the motion to reconsider. In State v, Austin, 11-0122 (La.App. 1 Cir. 6/10/11), 99 So.3d 1008, the defendant had filed a motion to suppress evidence, but he proceeded to trial without moving for a hearing or obtaining a ruling on the motion. The appellate court held that the defendant abandoned his motion by failing to have the district court act before the trial.

      . The Louisiana Supreme Court, however, has also recognized a very narrow exception to the general rule "for cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial.’’ State v. Advanced Recy

        cling, Inc., 02-1889, p. 9 (La.4/14/04), 870 So.2d 984, 989 (citing State v. Legendre, 362 So.2d 570, 571 (La. 1978)).

      . La.C.Cr.P. art. 532 provides:
      A motion to quash may be based on one or more of the following grounds:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII [Footnote omitted]. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury veni-re was improperly drawn, selected, or constituted.
      (10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.

      . The Criminal Code of Procedure also sets forth special grounds for a motion to quash a bill of information in La.C.Cr.P. art. 534, which provides:
      A motion to quash an information may also be based on one or more of the following grounds:
      (1) The information was not signed by the district attorney; or was not properly filed.
      (2) The offense is not one for which prosecution can be instituted by an information. The procedural requirements for a motion
      to quash are set forth in La.C.Cr.P. art. 536, which provides that "[a] motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” Id. It further provides that the motion to quash "specify distinctly the grounds on which it is based” and that "[t]he court shall hear no objection based on grounds not stated in the motion.” Id.