author: WINDHORST, J.

text:
    Michael PITRE and Nancy Pitre Desalvo, Individually and on Behalf of their Decedent, Verna R. Pitre v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital and DCI Door Controls, Inc. d/b/a Door Controls, Inc.
    NO. 16-CA-361
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, MICHAEL PITRE AND NANCY PITRE DESALVO, INDIVIDUALLY AND ON BEHALF OF THEIR DECEDENT, VERNA R. PITRE, Jennifer L. Thornton, Richard P. Voorhies, III, James F. Flinn, Jennifer R. Rust
    COUNSEL FOR DEFENDANT/AP-PELLEE, J.P. HOSPITAL SERVICE DIST. #2, PARISH OF JEFFERSON, STATE OF LOUISIANA, D/B/A EAST JEFFERSON GENERAL HOSPITAL, Conrad Meyer, Charles O. Taylor, Ryan P. Monsour
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

h Plaintiffs, Michael Pitre and Nancy Pi-tre DeSalvo, individually and on behalf of decedent, Verna R. Pitre (“the Pitres”), appeal from the granting of a motion for involuntary dismissal in favor of defendant, Jefferson Parish Hospital Service District No. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital (“EJGH”) and DCI Door Controls, Inc. d/b/a Door Controls, Inc., (“Door Controls”), dismissing the Pitres’ cause of action with prejudice. For the reasons that follow, we affirm the decision of the trial court.

FACTS

On August 13, 2013, Mrs. Verna Pitre was attempting to exit EJGH through the automatic doors located on the second floor, exiting into the Hudson Street garage, when she was struck by the automatic door which closed on her. At the time, Mi’s. Pitre was eighty-seven years old and was walking with the aid of a walker. The door, which struck her on the left side, caused her to fall to her right, and she struck her head on the terrazzo floor immediately inside the automatic doors. Her husband, who had been with her, exited earlier to retrieve their automobile and drive it up to the door to pick her up. He did not witness the accident, but arrived moments later. Mrs. Pitre died approximately eighteen days later from her injuries and resultant complications. The parties stipulated that the fall and resultant injuries were the cause of Mrs, Pitre’s death.

Mrs. Monica Friedrichs was leaving the hospital at the same time as Mrs. Pitre and was an eyewitness to the accident. She testified that as she was approaching the automatic doors, trailing behind her husband and two grandchildren. She saw this “little lady,” later identified as Mrs. Pitre, with a walker, coming from the left of the doors, which were open. Mrs. Pitre was getting [ ¡ready to go through the doors and the doors started closing. Mrs. Fried-richs’ husband tried to grab Mrs. Pitre’s walker to stabilize it, and her grandson tried to stop the doors from closing, however they were unsuccessful. The doors slammed shut and struck Mrs. Pitre, and she fell to the right and hit her head on the floor. According to Mrs. Friedrichs, “the door hit her hard enough that it knocked her basically off her feet, hit her from the left, and she fell to the right and fell just straight out and hit her head.”

Wilmer Calix is a technician for Door Controls. He testified that the door at issue was manufactured by Stanley, and was a full-power automatic door. He had gone on many service calls to EJGH, and on these calls he would deal with EJGH employee Freddy Fernandez.

On July 26, 2013, Mr. Calix went to EJGH to replace some parts on the exit door, second floor, Hudson Garage, after another Door Controls employee, Mr. Rue-ben Urbina, generated a work ticket on July 23, 2013. Mr. Urbina’s ticket indicated an unsatisfactory safety rating in that the door did not have I-One sensors. Mr. Ca-lix also indicated an unsatisfactory rating on his work ticket for the same reason. In his testimony, Mr. Calix stated that, in an automatic door without these presence sensing detectors, “the risk is that the door will close on somebody, should they be moving slow enough or coming at just the right angle where the motion sensors wouldn’t see them.. .Although it’s a very slight chance, the risk was still there.” It was this risk that the presence sensors were designed to address.

Mr. Calix testified that he discussed the lack of these sensors with Mr. Fernandez on July 26, 2013, and that he went over scenarios with Mr. Fernandez in |3which these additional sensors might be important, including “like some little old lady on a walker, you know, going through there and being hit by the door.” Mr. Calix testified that Mr. Fernandez asked for a price quote to address the issue. Mr. Calix also stated that he believed he had discussed this issue in general with Mr. Fernandez, concerning both this door and other doors, although he admitted that his memory was vague.

At trial, Mr. Calix stated that he did not think that the doors were “essentially unsafe,” but that there was always a small chance that if someone moved slowly enough in the right direction, the doors had the potential to close on them. He stated that the doors were “up to the original manufacturer’s specification, but not up to the current [American National Standards Institute (ANSI)] standards.” He further stated that he discussed the lack of sensors with Mr. Fernandez because they were not up to current standards, however this did not mean that the doors were unsafe. Mr. Calix clearly stated that he did not think that the doors were unsafe and that the work tickets, which found that they were unsatisfactory for failure to have the most current sensor, did not mean that the doors were dangerous.

Mr. Calix testified that he could not force a client to perform work on one of its doors, nor could he take a door out of service if it exhibited a “clear safety problem.” Mr. Calix stated that “There was no reason to take it [the doors] out of service since I already explained the door was safe.”

Freddy Fernandez testified that he was employed by EJGH in the Building Services Department, and that he was the person who oversees the maintenance and operation of the automatic doors in the facility. If there was a problem with an | ¿automatic door, he would call Door Controls. If Door Controls makes a recommendation, he would submit a purchase requisition to have the work performed. Mr. Fernandez testified that EJGH did not have a preventive maintenance contract on the automatic doors, but would call Door Controls on an as needed basis. Mr. Fernandez stated that he had made the call that led to Mr. Calix’s repair visit because the doors in question had begun opening and closing slowly. After the accident, Mr. Urbina of Door Controls inspected the doors, and recommended that presence sensors be upgraded. Thereafter, Mr. Fernandez took the necessary steps to upgrade the automatic doors.

After Mr. Urbina inspected the doors, they were taken out of service until upgraded. Mr. Fernandez stated that he turned off the power to the doors after they were inspected “because someone got hit by the door, to prevent it happening again.” When asked if the doors had ever hit someone else, Mr. Fernandez responded, “Never.”

Dr. Charles Carr was stipulated as an expert in the field of power-operated automatic doors and the standards that govern that industry. Dr. Carr stated that the cause of the accident was that the sensors failed to detect Mrs. Pitre, and that the accident could have been avoided had the sensors been upgraded. He also stated that, in his review of the records, he found that EJGH did not conduct regular safety checks, and had these checks been performed, the “defect” with the sensors would have been discovered prior to the accident. However, Dr. Carr acknowledged that three other experts disagreed with his conclusion that the doors presented an unreasonable risk of harm of which EJGH should have been aware. Dr. Carr also agreed that had Mrs. Pitre’s husband been with her, the doors would not have closed.

Is DISCUSSION

Mr. Pitre, the decedent’s husband, and Nancy Pitre DeSalvo, the decedent’s daughter, filed this petition for survival injuries and wrongful death against EJGH pursuant to La. C.C. arts. 2315, 2315.1, 2315.2 and 2317 and La. R.S. 9:2800, alleging that the automatic doors presented an unreasonable risk of harm and that EJGH knew or should have known of the risk. The matter proceeded to trial, and at the conclusion of the plaintiffs’ case, the trial court granted a motion for involuntary dismissal, dismissing their cause with prejudice.

In this appeal, the Pitres allege that the trial court failed to apply the proper legal test to determine constructive knowledge, and further failed to find that EJGH was not shielded from liability by Door Control’s failure to recommend removing the doors from service pending upgrade. The Pitres also allege that the trial court committed manifest error in failing to find that EJGH had actual knowledge that the sensors were not up to date, and that this created an unreasonable risk of harm.

In a claim for injury as a result of an alleged defective condition against a public entity such as EJGH, the plaintiff bears the burden of showing that: (1) the public entity had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. To recover, a plaintiff bears the burden of proving all of these inquiries in the affirmative and failure on any one is fatal to the case. La. C.C. art. 2317; La. R.S. 9:2800; White v. Select Specialty Hosp., 12-611 (La.App. 5 Cir. 03/13/13), 110 So.3d 1254, 1260; Graff v. Jefferson Parish Hosp. Serv. Dist. No. 2, 09-598 (La.App. 5 Cir. 3/23/10), 39 So.3d 685, 690-91, writ denied, 10-0907 (La. 6/18/10), 38 So.3d 331.

^Constructive notice as it relates to actions against a public entity is defined as the existence of facts which infer actual knowledge. Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Graff, supra at page 691; Jeansonne v. S. Cent. Bell Tel. Co., 08-568 (La.App. 5 Cir. 01/13/09), 8 So.3d 613, 621.

La. C.C.P. art. 1672B provides that after the plaintiff has completed the presentation of his evidence, any party 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. In order to determine whether an involuntary dismissal is appropriate pursuant to article 1672B, the trial court must determine whether the plaintiff has presented sufficient evidence to establish his claim by a preponderance of the evidence.

A motion for involuntary dismissal is raised in a judge trial after the plaintiff has completed the presentation of his evidence. Chateau Homes by RJM, Inc. v. Aucoin, 11-1118 (La.App. 5 Cir. 05/31/12), 97 So.3d 398, 405; Brock v. Singleton, 10-550 (La.App. 5 Cir. 03/29/11), 65 So.3d 649, 660. In this motion, a party may move for a dismissal of the action against him on the ground that the plaintiff has shown no right to relief based upon the facts presented and the law. Chateau Homes, supra at page 405; Zapalowski v. Campbell, 08-55 (La.App. 5 Cir. 06/19/08), 988 So.2d 772, 774-775. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Chateau Homes, supra at page 405.

An appellate court should not reverse an involuntary dismissal based on La. C.C.P. art. 1672B in the absence of manifest error. Autman v. Bd. of Supervisors, 36,981 (La.App. 2 Cir. 04/09/03), 843 So.2d 1183, 1184. To reverse the trial court’s grant of involuntary dismissal, the appellate court must find, after reviewing the record, that there is no factual basis for its finding, or that the finding is clearly ■wrong or manifestly erroneous. The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable. Broussard v. Voorhies, 06-2306 (La. App. 1 Cir. 09/10/07), 970 So.2d 1038, 1041-1042, citing Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).

In finding that EJGH did not have notice, either actual or constructive, of the defect which created the unreasonable risk of harm, the trial court stated that

We find that DCI did make recommendations to East Jefferson Hospital on July 23rd, T3, and July 26th, 16 (sic), on what it would take to bring the doors into compliance with current ANSI standards but did not state that the doors were defective, unsafe, or that they presented an unreasonable risk of harm. If DCI had believed that the doors were defective, unsafe, or presented an unreasonable risk of danger, DCI testified that they would have taken the doors out of service.
Therefore, we find that the hospital did not have notice that the doors were defective, unsafe, or presented an unreasonable risk of harm. We therefore grant the motion for a directed verdict [involuntary dismissal].

We have reviewed the record and find no manifest error in the trial court’s conclusion that EJGH did not have actual or constructive knowledge that the doors were defective, unsafe or presented an unreasonable risk of harm. The Pitres allege that because the sensors were not up to date, the doors created an unreasonable risk of harm. They further contend that EJGH should have known of this unreasonable risk by virtue of the fact that it was informed that its door sensors |8were no longer up to date, and therefore the trial court committed legal error, necessitating a de novo review by this Court. We disagree. The issue of what EJGH knew or should have known is clearly a factual issue, subject to the manifest error/clearly wrong standard.

In this case, Mr. Calix testified that, although he recommended that the sensors be updated to conform to modern standards, he did not consider that the outdated sensors created an unreasonable risk of harm, and that he conveyed this EJGH through Mr. Fernandez. Further while Dr. Carr, plaintiffs expert, testified that the accident could have been prevented had the sensors been upgraded, he also admitted that “it takes a certain amount of circumstances coming together as it did in this case to have a problem.” It was also established at trial that this was the only accident of its kind to occur with the doors in question. Accordingly, the Pitres’ contention that the trial court committed legal error and/or was manifestly erroneous is without merit.

CONCLUSION

For the above discussed reasons, the trial court’s judgment granting defendant East Jefferson General Hospital’s motion for involuntary dismissal and dismissing plaintiffs suit with prejudice is affirmed. Costs are assessed against plaintiffs.

AFFIRMED

      . Although defendant EJGH titled its motion at the close of plaintiff's evidence as a "Motion for Directed Verdict,” it is clear that the motion was actually a Motion for Involuntary Dismissal, which the trial court acknowledged in its judgment.

      . There are two types of sensors. The activating device is the motion sensor, and the safety device is the presence sensor. The I-One sensors, recommended on the work order, are presence sensors. At the time the doors were installed at EJGH, the presence sensors were "StanGuard” sensors, which would disable when the doors started to activate. StanGuard sensors were acceptable when the doors were installed. However, in July of 2013, the American National Standards Institute (A156.10) required that an automatic door have either I-one sensors or beams to detect a presence in the door path.

      . EJGH’s Departmental Policies and Procedures, Building Services, provides in part that “All purchases shall be approved by the Director or his designee. All purchases that exceed the sum of $500.00 need a price comparison form completed, showing that three (3) vendors were called.” Bids from three vendors were obtained and a price comparison record was submitted on September 6, 2013. The I-One sensors were installed on September 11, 2013.

      . Because the plaintiffs’ cause was dismissed at the conclusion of the presentation of its evidence, these experts who were defense witnesses did not testify.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    STATE of Louisiana v. Shondrell CAMPBELL
    NO. 16-KA-341
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR DEFENDANT/APPELLANT, SHONDRELL CAMPBELL, Gwendolyn K. Brown

      Panel composed of Marc E. Johnson, Robert A. Chaisson, and Robert M. Murphy
   MURPHY, J.

| iDefendant, Shondrell Campbell, appeals her sentence following a conviction for issuing worthless checks. Defendant’s conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

This case comes before us for the third time on appeal. In defendant’s first appeal, we affirmed her conviction for one count of issuing worthless checks, in violation of La. R.S. 14:71.C, vacated defendant’s sentence, and remanded the matter for resentencing. State v. Campbell, 13-130 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137. In defendant’s second appeal, we again affirmed her conviction, vacated the sentence, and remanded to the trial court for resentencing in accordance with La. C.Cr.P. art. 895.1. State v. Campbell, 15-98 (La.App. 5 Cir. 09/15/15), 173 So.3d 1256.

On December 16, 2015, following remand after defendant’s second appeal, the trial court sentenced defendant to a suspended 24-month sentence with the Department of Corrections, two years of active probation, 480 hours of community service, and also ordered defendant to complete a three-hour accounting course. She was given credit for all the time served in Louisiana correctional facilities. Defendant was ordered to pay a fine in the amount of $500.00, $314.50 in court costs, and total restitution in the amount of $10,975.00, with a credit of $2,349.00. The trial court also imposed a $15.00 per check charge pursuant to La. R.S. 14:71, for a total of $45.00. Defendant was ordered to pay $100.00 per month until all restitution was paid. This timely appeal followed.

| .ASSIGNMENTS OF ERROR

Defendant raises five assignments of error in which she argues, in summary, that the trial court erred in imposing certain fees and court costs, as well as ordering her to appear in open court to make restitution payments, and in also failing to give her credit for time served.

LAW AND ANALYSIS

The record in this matter demonstrates that defendant did not object to the sentence imposed, either on the date of resentencing or by way of a timely filed motion for reconsideration of sentence. The failure to file a motion to reconsider sentence limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E); State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, writ denied, 03-1978 (La. 5/14/04), 872 So.2d 509. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La. 1992). Trial judges are granted great discretion in imposing sentences, and a sentence will not be set aside as excessive absent a clear abuse of that discretion. State v. Parker, 03-288 (La.App. 5 Cir. 7/29/03), 853 So.2d 67. The issue on appeal is whether the trial judge abused his discretion, and not whether another sentence might have been more appropriate. Id.

In her first assignment, defendant argues that the trial court erred in ordering the payment of a “DA fee,” and in her third assignment, defendant contends that the court erred in including $75.00 in “NSF fees” in her sentence.

Defendant was convicted of issuing three worthless checks in the amount of $500.00 or more, violations of La. R.S. 14:71(C). As defendant acknowledges in I.«¡her brief, pursuant to La. R.S. 16:15(A)(1), a Louisiana District Attorney’s Office is specifically authorized to collect fees whenever his office collects and processes a check, draft, or order for the payment of money upon any bank or other depository, if the check, draft, or order for payment of money on any bank or depository “[h]as been issued in a manner which makes the issuance an offense under R.S. 14:71.” In this case, under La. R.S. 16:15(C), the amount that the District Attorney’s Office could collect is “One hundred seventy-five dollars or twenty percent, whichever amount is greater, if the face amount of the check, draft, or order for the payment of money is greater than five hundred dollars.” Based upon the amounts of the worthless checks defendant was convicted of issuing, two for $3,000.00 and one for $3,100.00, the District Attorney’s fee equals $1,820.00, which is twenty percent of $9,100.00. Thus, the part of defendant’s sentence which required her to pay $1,800.00 was actually less than the amount allowed by statute. Accordingly, we do not find this fee to be constitutionally ^excessive. Similarly, with respect to defendant’s assignment of error that a $75.00 NSF fee was improperly ordered, we also find no merit. As defendant acknowledges in her brief, La. R.S. 16:15(F) specifically requires a District Attorney’s Office to collect worthless check fees:

Notwithstanding the provisions of Subsection E of this Section, in addition to the fees collected as provided in Subsection C of this Section, the district attorney shall collect a fee of twenty-five dollars per worthless cheek which shall be payable to the person or entity that honored the worthless check or checks.

In this case, the $75.00 fee imposed is the correct amount for the three worthless checks issued by defendant.

In her second assignment of error, defendant asserts that the trial court erred in adding court costs to her sentence.

La. C.Cr.P. art. 887 provides:

A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court...

[Emphasis added]. In State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262, the Louisiana Supreme Court discussed the discretion of the trial court to impose costs |fiupon a convicted criminal defendant and a reviewing court’s ability to determine whether the costs in a particular case are constitutionally excessive:

We find that it is within the discretion of the trial court to impose a broad category of costs on a convicted criminal defendant pursuant to article 887(A). The official comments to La. C.Cr.P. art. 887 state that the “general rule” is, “upon conviction, either upon a plea or finding of guilty, the defendant becomes liable for all costs of the prosecution .... [Liability for costs is inherent in the adjudication of guilt, whether stated in the sentence or not.” La. C.Cr.P. art. 887, official cmt. (a) (1966). In other words, the only limitation on costs in article 887 is “the adjudication of guilt,” i.e., a conviction.
Though we specifically find that a trial court has broad discretion to impose costs in this context, the discretion is not unlimited. The Louisiana Constitution limits a court’s power to impose fines and costs when those costs are excessive or unreasonable. See State v. Dorthey, 623 So.2d 1276 (1993) (“Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional exces-siveness.”) (citing La. Const, art. 1, sec. 20). To constitute an excessive sentence, a court must find that “the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering.” State v. Guzman, 99-1753, p.15 (La. 5/16/00), 769 So.2d 1158, 1166.

Id. at 1269-70. In the instant case, defendant was assessed a total of $314.50 in court costs. While defendant argues that she had already paid court costs prior to her most recent sentencing, no proof of this appears in the record. Defendant does not contend that the amount of the court costs is excessive or that the total amount was incorrectly calculated. We cannot say that the amount of court costs imposed in this case shocks our sense of justice. This assignment is without merit.

In her fourth assignment of error, defendant contends that the trial court erred in ordering her to appear in open court to make restitution payments. However, neither the trial court transcript from the date of sentencing or the corresponding minute entry shows that the court expressly imposed such ¡^requirement as part of defendant’s sentence. Accordingly, there is nothing in the record upon which to base our review. See State v. Orgeron, 512 So.2d 467, 472 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). However, even if defendant was required to pay her restitution in such a manner, we do not find that to be a clear abuse of the trial court’s discretion. This assignment is without merit.

The defendant complains in her last assignment that the trial court failed to give her credit for time served. This assertion is directly contradicted by both the trial court transcript from the date of sentencing and the corresponding minute entry. Nevertheless, credit for time served is self-executing under La. C.Cr.P. art. 880. This assignment is without merit.

Finally, although not specifically assigned as error, defendant contends throughout her brief that the cumulative actions of the trial judge in sentencing her amount to “vindictiveness,” resulting in a sentence that is both “excessive” and “unclear.” The record does not support this allegation. The trial court complied with this Court’s order on remand by setting a determinate amount of restitution due pursuant to La. C.Cr.P. art. 895.1. Nothing in the record before us demonstrates that the amount of restitution was calculated incorrectly. As discussed above, the fines and fees imposed as part of defendant’s sentence were ^authorized by State law and, in some cases, were mandatory. To the extent that the fines and fees were not previously imposed, defendant’s prior sentences were illegally lenient. In reviewing defendant’s sentence for constitutional excessiveness, we do not find that any portion of her sentence is a “needless imposition of pain and suffering.”

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We find no errors which require correction.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

      . The facts of this case were set forth in this Court’s opinion in defendant’s first appeal. See Campbell, 13-130, pp. 3-4 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137, 1139.

      . Specifically, we ordered the court to make "a judicial determination of the amount of restitution due, after determining the amount of the credit to which defendant is entitled to for restitution amounts already paid.”

      .The record shows that defendant filed a pro se motion to amend, modify and correct sentence on October 21, 2015, prior to the sentencing date of December 16, 2015. On October 26, 2015, the trial court denied defendant’s motion as premature.

      . No specific procedure for the collection of the District Attorney’s fee is provided for in the statute, nor is there a prescriptive period within which the fee must be collected. It is not clear from the record why the District Attorney's Office did not seek this fee as a part of defendant's previously vacated sentences.

      . We note that the $1,800.00 amount for the "D.A. fee” was provided to the trial court through the testimony of Jennifer Duhe, who was identified as working for the St. John District Attorney’s Office in the Victims’ Assistance and Worthless Checks Division. Duhe's testimony was that defendant had not made any payments toward the $1,800.00 D.A. fee as of the time of resentencing. The sentencing transcript from December 16, 2015, provides as follows:
      THE STATE: Can you tell the Court prior to any restitution being paid, exactly what the defendant owed the two victims in this case?
      MS. DUHE: She owed Acadian Plumbing $6,150.00. She owed the District Attorney’s Office for the checks—the two companies, $1,800.00....

      THE STATE: And then separately she owed the D.A.'s Office $1,800.00 as a D.A. fee, resulting from these worthless checks?
      MS. DUHE: Yes.

      THE STATE: In regard to the $1,800.00 D.A. fee, has she made any payment in regard—
      MS. DUHE: No.
      Defendant did not object to the calculation of the $1800.00 D.A. fee referenced in Duhe’s testimony. The record then shows that the trial court included the $1,800.00 D.A. fee as a part of the $10,975.00 it ordered defendant to pay as the total amount of restitution.
      THE COURT: Okay, the 6,150. Then 1800. Then, 3025?
      THE STATE: That is correct, Your Honor.
      THE COURT: And I total that to 10,975.
      THE STATE: That is correct, Your Honor.
      THE COURT: And as you were going on down the row, the credit I amount to 2,349?
      THE STATE: That is correct, Your Honor.
      THE COURT: Ms. Mengisen, any problems with the Math?
      DEFENSE COUNSEL: No objection, Your Honor.
      Technically speaking, "restitution” is defined as a means by which persons convicted of certain crimes compensate an “actual pecuniary loss to a victim.” See La. C.Cr.P. art. 883.2. As noted above, in defendant’s second appeal, we remanded with instructions to the trial court to resentence defendant and to calculate restitution in accordance with La. C.Cr.P. art. 895.1, which also provides for the imposition of costs and fines. The entirety of the transcript clearly identifies the D.A. fee as separate and apart from the amount owed as compensation to the victims in this case. However, the trial court referred to the total amount that the defendant would pay as part of her sentence, including the D.A. fee, as “restitution,” Similarly, the minute entry for December 16, 2015, provides a total "restitution” amount of $10,975.00, but without a line item explanation of how that amount was calculated. It appears, however, that the $1,800.00 "D.A. fee” was included in that amount. In this particular case, where the record clearly delineates the amounts of "restitution” from the fines and fees imposed as part of defendant’s sentence, and where no objections were made by defendant, we find that the trial court’s reference to the entire amount of the fines and fees as "restitution” is harmless error. To the extent that the commitment/minute entry does not provide the same detail of calculation in the sentencing transcript, the transcript prevails. State v. Vincent, 07-239 (La.App. 5 Cir. 12/27/07), 978 So.2d 967.

      . We also find no error in the trial court’s inclusion of the D.A, fee as a part of defendant’s sentence, as this Court has previously affirmed similar sentences. See State v. Jones, 08-1158 (La.App. 5 Cir. 02/25/09), 9 So.3d 893. (District Attorney's fee in the amount of $ 3,739.53 made part of the sentence was affirmed.) See also West v. Foti, 94-2139 (La. App. 4 Cir. 04/26/95), 654 So.2d 834, writ denied, 95-1333 (La. 9/1/95), 658 So.2d 1267; and State v. Dean, 99-475 (La.App. 3 Cir. 11/03/99), 748 So.2d 57, writ denied, 99-3413 (La. 5/26/00), 762 So.2d 1101.

      . In defendant’s prior appeal, this Court observed that the trial court had assessed court costs in the exact same amount of $314.50. State v. Campbell, 15-98 (La.App. 5 Cir. 09/15/15), 173 So.3d 1256.

      . We note that the record contains four minute entries for "Proof of Payment" that occurred after sentencing, which indicate that defendant was present in court on February 25, 2016, and March 23, 2016. Defendant failed to appear April 20, 2016 and May 18, 2016, and an attachmenl/bench warrant was issued by the trial court.

      .During sentencing, the trial judge stated, "We’re giving you credit for all the time served in Louisiana correctional facilities."

      . The minute entry from December 16, 2015 provides, "Defendant given credit for all time served.”

      . The Fifth Circuit Court of Appeal is not the proper venue in which to challenge the calculation of parole. Under La. R.S. 15:571.15, venue in any action in which an individual committed to the Department of Public Safety and Corrections contests the computation of his sentence or sentences, discharge, good time dates, or any action concerning parole shall be in the parish of East Baton Rouge.

      . The Supreme Court has noted that the "cumulative error” doctrine has lost favor in the Louisiana courts. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, cert. den., 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Significantly, the Supreme Court in State v. Manning, 03-1982 (La. 10/19/04), 885 So.2d 1044, cert. den., 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005), rejected the cumulative error doctrine by noting that "twenty times zero equals zero.”

      . With regard to her claim of vindictiveness, we note that defendant, at no time during the resentencing hearing, claimed that any portion of her sentence, including the imposition of the $1,800.00 D.A. fee, was vindictive. As such, neither the trial court nor the district attorney had any opportunity to address or respond to this possible issue. Therefore, on the record before us, it is difficult to specifically evaluate defendant’s allegations of vindictiveness.

      . In concluding that the amount of restitution was properly calculated, we foreclose defendant's argument that her trial attorney's failure to object at sentencing constituted ineffective assistance of counsel.

      . We specifically found in defendant’s first appeal that the trial court's failure to impose a fee, pursuant to La. R.S. 14:71(G), resulted in an illegal sentence. State v. Campbell, 13-130 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137, 1143.


text:
    STATE of Louisiana v. Rafael BROOKS
    NO. 16-KA-345
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Joel T. Chaisson, II, Louis G. Authement
    COUNSEL FOR DEFENDANT/AP-PELLEE, RAFAEL BROOKS, David S. Moyer
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

_JjOn November 9, 2015, the District Attorney for the Parish of St. Charles filed a bill of information charging defendant, Rafael Brooks, with one count of possession of heroin, on or about November 2, 2015, in violation of La. R.S. 40:967 C. On December 8, 2015, defendant was arraigned and entered a plea of not guilty. On January 28, 2016, the trial court heard co-defendant, Kevin Jago’s motion to quash the bill of information, which defendant orally joined in the motion. It was argued that the bill of information should be quashed pursuant to application of the immunity statute set forth in La. R.S. 14:403.10 B. The trial court granted defendant’s motion to quash the bill of information. This appeal by the State followed. For the reasons stated below, the trial court’s judgment granting the motion to quash is reversed, the bill of information is reinstated, and the matter is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

In its sole assignment of error, the State argues the trial court erred in quashing the bill of information against defendant because the limited testimony presented at the motion to quash hearing did not establish sufficient evidence to support the application of La. R.S. 14:403.10 B.

| aAt the hearing on the motion to quash, Deputy Charles Warren with the St. Charles Sheriff’s Office testified that on November 2, 2015, he responded to an anonymous call regarding two males “using drugs” or “passed out high on drugs” inside a red Nissan Altima located on Airline Highway in St. Rose. Upon arrival, Deputy Warren observed the vehicle running, and approached the driver’s side door. He observed a white male in the driver’s seat, later identified as co-defendant, Kevin Jago, and a black male in the passenger seat, later identified as defendant, and both men were unconscious and “slobbering on themselves.” He knocked on the window, and when neither man responded, he opened the driver’s door, which was unlocked. After opening the door, he spoke with Jago and touched his neck to check for a pulse when Jago “started coming around.” Deputy Warren then looked over and saw a hypodermic needle in the defendant’s right hand as he was “coming to.”

Concerned for his own safety, Deputy Warren drew his weapon and ordered defendant to drop the needle and put his hands on the dashboard while he removed Jago from the vehicle. Defendant complied with Deputy Warren’s orders, and after Jago was placed on the ground, defendant was removed from the vehicle and placed on the ground. Defendant understood Deputy Warren’s commands to get on the ground and put his hands behind his back. Deputy Warren testified that at no point after the defendant “came to” did he lose consciousness or “slobber” again, nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. Defendant and Jago were arrested and placed in his vehicle.

| ¡¡Deputy Warren then conducted a search of the vehicle and recovered the hypodermic needle initially seen in defendant’s hand, a metal container that had a brown substance in it, additional hypodermic needles on the driver’s seat and in the driver’s side door, a brown belt that was around defendant’s left arm, and a belt-like object on the driver’s seat. The hypodermic needles and the brown substance field-tested positive for heroin.

Other officers arrived on the scene to assist and Deputy Warren informed his sergeant that the defendant was initially unconscious. His sergeant directed him to call emergency medical services (“EMS”) “just to check on them.” Once EMS arrived approximately an hour and a half later, defendant informed EMS that he “shot up heroin” 3 to 4 hours ago, it was approximately two “$5 bags of heroin.” He further informed them that he did not need medical assistance, and he signed a refusal form.

Deputy Warren transported defendant and Jago to the Nelson Coleman Corrections Center. Defendant did not experience any medical problems that needed assistance on the way. Upon arrival, defendant was able to walk inside without assistance. The correctional facility’s medical records showed that defendant was not treated for an overdose.

The trial court found that Deputy Warren’s action of opening the door was due to his concern that defendant was experiencing a medical emergency, and therefore La. R.S. 14:403.10 B applied. The trial court did not make a specific finding that defendant experienced an overdose, and in fact, questioned whether experts were needed to determine if an overdose occurred. The trial court then had 14a lengthy discussion about the heroin/drug problem in the parish and “reluctantly” granted the motion to quash.

ANALYSIS AND DISCUSSION

A motion to quash is a procedural vehicle for challenging an indictment or a bill of information. La. C.Cr.P. arts. 531-533. Such a motion must be in writing. State v. Dauzart, 07-15 (La.App. 5 Cir. 05/15/07), 960 So.2d 1079, 1084, writ denied, 07-1269 (La. 12/14/07), 970 So.2d 532; State v. Branch, 00-1668 (La.App. 5 Cir. 03/28/01), 784 So.2d 43; State v. Bentel, 00-0057 (La.App. 5 Cir. 09/27/00), 769 So.2d 1247.

Defendant did not file a written motion to quash. The transcript of the hearing on the motion to quash reflects that he orally joined in co-defendant Jago’s written motion to quash. While the failure to file a written motion to quash or to specify the grounds upon which the motion to quash is based was previously considered reversible error, we find defendant’s lack of a written motion to quash in this case is not reversible error since defendant orally jointed in his co-defendant’s written motion to quash at the hearing. See State v. Billard, 03-319 (La.App. 5 Cir. 07/29/03), 852 So.2d 1069, 1074 n.3, writ denied (La. 02/06/04), 865 So.2d 739; State v. Donnaud, 04-624 (La.App. 5 Cir. 02/15/05), 896 So.2d 1151; Dauzart, 960 So.2d at 1083-84. Further, the State did not object to the lack of a written motion at the hearing, and it does not raise the lack of a written motion to quash as to defendant as error in this appeal.

This Court applies an abuse of discretion standard when reviewing a trial court’s determination on a motion to quash. State v. Whitley, 14-737 (La.App. 5 Cir. 03/25/15), 169 So.3d 658, 661; State v. Lommasson, 11-536 (La.App. 5 Cir. 11/29/11), 81 So.3d 796, 799. The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court. State v. Mendoza, 12-589 La.App. Cir. 3/13/13, 113 So.3d 288, 292; State v. Payton, 06-1202 (La.App. 4 Cir. 02/28/07), 954 So.2d 193, 195 (citing State v. Love, 00-3347 (La. 05/23/03), 847 So.2d 1198, 1208).

The motion to quash argued that the evidence was obtained while defendant was experiencing an overdose, and was in need of medical assistance. The bill of information which charged defendant with possession of heroin was, therefore, in violation of La. R.S. 14:403.10 B.

La. R.S. 14:403.10 B provides:

A person who experiences a drug-related overdose and is in need of medical assistance shall not be charged, prosecuted, or penalized for possession of a controlled dangerous substance under the Uniform Controlled Dangerous Substances Law if the evidence for possession of a controlled substance was obtained as a result of the overdose and the need for medical assistance.

The starting point in the interpretation of any statute is the language of the statute itself. State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233, 1242 (citing State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d 568, 575; Theriot v. Midland Risk Insurance Company, 95-2895 (La. 05/20/97), 694 So.2d 184, 186). A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. La. R.S. 14:3. Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. A criminal statute should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature and an interpretation should be avoided which would operate to defeat the object and purpose of the statute. Shaw, 969 So.2d at 1242. Thus, where the words of a statute are clear and free from ambiguity, they are not to be disregarded under the pretext of pursuing their spirit. La. R.S. 1:4.

| ^Application of La. R.S. 14:403.10 B

As written, La. R.S. 14:403.10 B establishes a three-prong test for determining whether the immunity it establishes applies. The person in possession of the controlled dangerous substance must be experiencing an “overdose”; the person must be in need of medical assistance; and the evidence of the controlled dangerous substance must have been obtained as a result of the overdose and the need for medical assistance. This statute does not define “overdose,” and there is no jurisprudence interpreting this statute.

First, the record of the hearing on the motion to quash does not support a finding that the defendant was in need of medical assistance. Deputy Warren testified that after rousting the defendant, at no point did he again lose consciousness or “slobber,” nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. His sergeant had an EMS unit called “just to check on them.” The defendant informed EMS that he “shot up heroin” 3 to 4 hours ago, it was approximately two “$5 bags of heroin.” The defendant informed them that he did not need medical assistance, and he signed a refusal form. The defendant did not experience any medical problems while en route to the corrections center, and was able to walk inside without assistance. The correctional facility’s medical records showed that defendant was not treated for an overdose. No expert testimony was offered to the contrary. We therefore conclude that the record does not support a finding that the defendant was in need of medical assistance, and that this requirement of La. R.S. 14:403.10 B has not been met.

We next consider whether the defendant experienced an “overdose” as intended by the statute. “Overdose” is defined by the Merriam-Webster Dictionary as “too great a dose (as of a therapeutic agent); also: a lethal or toxic amount (as of a drug).” “Toxic,” is uniformly defined by the Merriam-Webster Dictionary and |7by other dictionaries and internet sources as poisonous, deadly, and capable of causing death or serious injury.

For purposes unrelated to La. R.S. 14:403.10 B, La. R.S. 40:978.1 provides for instances in which a first responder, including a peace officer, may possess and administer certain prescription drugs. “Opioid-related drug overdose” is defined therein by La. R.S. 40:978.1 A(3):

(3) “Opioid-related drug overdose” means a condition including extreme physical illness, decreased level of consciousness, respiratory depression, coma, or the ceasing of respiratory or circulatory function resulting from the consumption or use of an opioid, or another substance with which an opioid was combined.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; State v. La. Land & Exploration Co., 12-0884 (La. 01/30/13), 110 So.3d 1038, 1044; Rando v. Anco Insulations Inc., 08-1163 (La. 05/22/09), 16 So.3d 1065, 1075. However, when the language of a law is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art, 10; Rando, 16 So.3d at 1075; Marino v. Gulf Coast Bank & Trust Co., 15-307 (La. 12/23/15), 184 So.3d 153, 155-156.

We conclude that for the purposes of La. R.S. 14:403.10 B, an “overdose” must be of a lethal, toxic, or poisonous amount that is capable of causing death or serious injury, rather than one which is merely dangerous, “too great a dose,” or causing a lower level of consciousness. Illegal possession or use of any amount of a Controlled Dangerous Substance is, by its nature and by legal prohibition, dangerous and “too great a dose.” Therefore, to define “overdose” merely as one |swhich is dangerous or is “too great a dose” would lead to the absurd result of allowing any amount of a CDS to satisfy this prong of the test for immunity granted by La. R.S. 14:403.10 B.

Moreover, defendant argues that the purpose of La. R.S. 14:403.10 B and the legislature’s intent by enacting it is to save lives. This necessarily contemplates that for the purpose of La. R.S. 14:403.10 B, “overdose” means the use of a lethal, toxic, or poisonous amount which has created a life-threatening condition, or one which is capable of causing death or serious injury.

Here, defendant obviously showed signs of drug impairment, ie., slobbering on himself and unconsciousness, but there was no evidence of use of a lethal, toxic, or poisonous life-threatening amount. There were no medical tests performed at the scene, the defendant was not treated for an overdose at the correctional facility, and no expert medical testimony was offered at the hearing to indicate whether defendant ingested an amount of heroin likely to result in an overdose.

Based on the testimony and evidence adduced at the hearing, the trial court abused its discretion in granting the motion to quash finding defendant was entitled to immunity under the statute and dismissing the bill of information.

| ^Accordingly, we reverse the trial court’s judgment granting the motion to quash, reinstate the bill of information, and remand this matter for further proceedings. See State v. Trevino, 07-870 (La. App. 5 Cir. 05/27/08), 985 So.2d 851, 858, writ denied, 08-1900 (La. 04/03/09), 6 So.3d 768.

CONCLUSION

For the reasons stated above, the trial court’s judgment granting the motion to quash is reversed, the bill of information is reinstated, and the matter is remanded for further proceedings.

JUDGMENT REVERSED, BILL OF INFORMATION REINSTATED; CASE REMANDED

      . Co-defendant, Kevin Jago, was also charged in the same bill of information, with possession of heroin in violation of La. R.S. 40:967 C. See State v. Jago, 16-346 (La. App. 5 Cir. 12/28/16), 209 So.3d 1078.

      . During defendant's arraignment, the transcript provides that the trial judge stated: “Under Mr. Brooks, let the guilty plea be entered. Fifteen days to file any special motions. And, we will set that for January 28th at nine o’clock,” However, this appears to be either a misstatement by the trial judge or a mistake by the court reporter as defense counsel stated moments before that defendant was entering a plea of not guilty. The minute entry from arraignment also indicates a plea of not guilty, and the case so proceeded.

      . The State originally filed a writ seeking supervisory review of the trial court’s judgment. This Court denied the State’s writ application after finding that the judgment was final and appealable, and thus, it was not under this Court’s supervisory jurisdiction. State v. Brooks, 16-110 (La. App. 5 Cir. 04/13/16) (unpublished writ disposition). This Court remanded the matter with instructions for the 29th Judicial District Court to treat the State’s notice of intent as a motion for appeal. Id.

      . The State argues the application of La. R.S. 14:403.10 B is a defense and a defense dependent on the facts and merits of a case cannot be brought by a motion to quash. Defendant argues La. R.S. 14:403.10 B is an immunity statute that prohibits prosecution regardless of the merits of the case; therefore, a motion to quash is proper to quash a bill of information. This statute provides that a person experiencing a drug-related overdose and in need of medical assistance "shall not be charged, prosecuted, or penalized ..which is indicative of immunity. La. R.S. 14:403.10 B.

      . The 9-1-1 caller stated that a red Nissan Altima containing one white male and one black male was parked at 10057 Airline Drive in St. Rose. The caller stated that the two males looked "like they're passed out high sitting in the car not even moving.” He stated they might be "selling and using” drugs. The caller verified that the two males were breathing “just passed out high.” The 9-1-1 caller’s information corroborated Deputy Warren’s testimony.

      . In addition to Deputy Warren's testimony, copies of defendant’s EMS medical records from the date of the offense, defendant’s medical records from Nelson Coleman Correctional Center from the date defendant was booked, the incident report, and the 9-1-1 CD were admitted at the hearing,

      . On cross-examination, Dep. Warren was asked, "In your opinion, at the time that you see these two individuals passed out, unconscious, slobbering all over themselves, they won’t respond to tapping on the window; you already know that somebody says they’re passed out high on drugs, were you concerned that it was an overdose situation, and these individuals were in need of medical treatment? Dep. Warren responded, "Not at that time, no ma’am.”

      . Florida Stat. Ann. § 893.21(2) is illustrative as to the application of La. R.S. 14:403.10 B. Fla. Stat. Ann. § 893.21(2) provides:
      A person who experiences a drug-related overdose and is in need of medical assistance may not be charged, prosecuted, or penalized pursuant to this chapter for possession of a controlled substance if the evidence for possession of a controlled substance was obtained as a result of the overdose and the need for medical assistance.
      In State v. Silliman, 5D14-2895 (Fla. Dist. Ct. App. 06/12/15), 168 So.3d 245, 245-46, a Florida appellate court stated that although the Florida legislature was silent as to the definition of "overdose,” the language of the statute was clear. The court noted that the word "overdose” is defined by the dictionary as: "too great a dose (as of a therapeutic agent); also: a lethal or toxic amount (as of a drug).” Id.
      In Silliman, supra, the deputy observed that the defendant had bloodshot eyes, slow rambling speech, was swaying, and observed what appeared to be paraphernalia peeking out from the defendant’s pocket. The deputy arrested and transported the defendant to a drug treatment facility, and he was subsequently charged with possession of heroin after the paraphernalia was tested, Id. at 246. The charge was later dismissed by the Florida trial court, finding that the defendant was entitled to immunity under section 893.21(2). Id.
      The State appealed, arguing that the defendant did n<3t experience a drug overdose and was not in need of medical assistance, but rather, the deputy took him into custody believing him to be impaired. Id. at 246-47. The court of appeal agreed, finding that the defendant showed signs of impairment, not overdose, and exhibited no "symptoms of extreme physical illness or impending death.” Id. at 247. Further, the court relied upon the fact that the defendant did not request medical assistance, and he was taken to a facility to receive drug treatment, rather than to a hospital for medical assistance. |d. Thus, the appellate court found that the trial court erred in granting the defendant immunity and reversed.