text:
    Susan DAIGLE v. The PARISH OF JEFFERSON Individually and/or by and through Appropriate Consolidated Road District, and the State of Louisiana, by and through the Department of Transportation and Development.
    No. 08-CA-1310.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.
    Writ Denied March 26, 2010.

      Patrick H. Hufft, Jesse Beasley, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.

      Michael F. Nolan, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12Plaintiff, Susan Daigle, filed a petition for damages against the Parish of Jefferson for injuries she sustained in a one-car accident. Ms. Daigle has appealed the jury verdict in favor of the Parish. For the reasons that follow, we affirm.

FACTS

The accident that is the subject of this appeal occurred on June 25, 1999 at approximately 12:30 a.m. at the intersection of Daniels Road and Oakwood Drive in Terrytown, which is in Jefferson Parish. At that time and location, the car that Ms. Daigle was driving crossed through said intersection, climbed a curb, flew over a drainage canal, and came to rest on a street on the opposite side of the canal.

Ms. Daigle’s trial testimony as to the facts surrounding the accident can be summarized as follows. At the time of the accident, Ms. Daigle was dating Wade Mattei, whom she later married. Mr. Mattei was keeping a dog at his apartment that Ms. Daigle had agreed to sit for a friend. At approximately 7 a.m. on June 24, |s1999, Ms. Daigle received a phone call from Mr. Mattei explaining that the dog he had been keeping for her got lost the night before when he let it out to relieve itself. That same night, sometime after 11 p.m., Ms. Daigle drove around in Mr. Mattei’s neighborhood looking for the lost dog. Later, evidently just before 12:30 a.m., Ms. Daigle saw Mr. Mattei’s vehicle. At that point, she drove away because she did not want to talk to him since she was upset with him for losing the dog. She eventually turned onto Daniels Road. Mr. Mattei followed behind her. Ms. Daigle had lived on the West Bank of Jefferson Parish since she was 16 years old and had been to Mr. Mattei’s apartment several times, but had never driven in this direction on Daniels Road prior to the night of the accident.

The next thing Ms. Daigle remembered after turning onto Daniels Road was that she was involved in the accident in question. She never saw a yellow sign or a stop sign. She had no idea what speed she was going at the time of the accident. She felt a jolt, then remembered Mr. Mattei talking to her. She recalled ankle pain. Emergency medical technicians arrived and removed her from the vehicle. She was transferred to West Jefferson Medical Center and then later to the Medical Center of Louisiana, also known as Charity Hospital. She sustained a severe fracture to her ankle in the accident, requiring numerous surgeries, resulting in residual pain and disability.

On cross-examination, Ms. Daigle was presented with a police report stating that at the time of the accident she was attempting to leave the area at a high rate of speed. She admitted that she told the investigating officer that Mr. Mattei was behind her, but did not recall telling the officer that she feared Mr. Mattei. When confronted with the Emergency Medical Services record stating that she was being “chased by boyfriend,” she testified that she did not recall talking to the emergency medical technicians. When confronted with a medical record from the emergency ^department at West Jefferson Medical Center stating “driving high rate of speed fleeing boyfriend she thought might be violent,” she testified that she did not recall speaking to anyone at West Jefferson. She denied that Mr. Mattei was chasing her at the time of the accident. When confronted with a medical record indicating her blood alcohol level sometime after the accident was .089, she stated that she had not consumed any alcohol the night of the accident and that she did not think it was her blood that was tested for alcohol because of a time discrepancy in the medical records.

Wade Mattei also testified as to the facts of the accident. According to Mr. Mattei, Ms. Daigle was upset when he told her he lost the dog. On the evening of June 24, 1999, he went to a bar and left at about 10:30 or 11:00 o’clock p.m. When he drove to his apartment, he spotted Ms. Daigle’s car. Ms. Daigle turned onto Daniels Road towards Oakwood Drive and he followed her. He tried to call Ms. Daigle but did not speak to her. As Ms. Daigle drove towards the intersection of Daniels Road and Oakwood Drive, he became concerned because he knew the double arrow sign at the end of the street was down. He was fearful that Ms. Daigle would not know the “end of the road was coming.” He then saw Ms. Daigle’s car bounce upward and come to a stop on the street across the canal that is located at said intersection. Mr. Mattei then crossed the canal on the pedestrian bridge nearby and went over to assist Ms. Daigle. He noticed Ms. Daigle’s injured ankle and called 911.

At the time of the accident, Mr. Mattei saw that the double arrow sign that would normally be at the end of the street next to the canal was in fact lying on the ground in the grass next to the canal. He returned to the scene of the accident the next day and took several daytime pictures of the intersection. These photographs | ¿were admitted into evidence. The pictures depict foliage partially obstructing the stop sign at the intersection.

On cross-examination, Mr. Mattei denied that he was chasing Ms. Daigle at the time of the accident. Although Mr. Mattei testified in his deposition that Ms. Daigle was avoiding him, he testified at trial that he did not know she was trying to avoid him. Mr. Mattei admitted that he did not notify anyone with Jefferson Parish when he noticed that the double arrow sign was down days prior to the accident. Mr. Mattei did not recall the time Ms. Daigle was transferred to Charity Hospital.

Deputy Patrick Langley, who investigated the accident on behalf of the Jefferson Parish Sheriffs Office, was not available for trial. His deposition was read to the jury. The police report authored by Deputy Langley was attached to the deposition and published to the jury. Deputy Langley testified that he had worked in the traffic division of the Sheriffs Office for approximately seven of his 14 years as a deputy. He had an independent recollection of this accident. He arrived at the scene while Ms. Daigle was still in the vehicle. He spoke to Ms. Daigle and Mr. Mattei, gathered evidence, and took measurements at the scene. According to Deputy Langley, Ms. Daigle hit the curb at the intersection, cleared the canal, traveling some 40 feet in the air, landed on the other side of the canal, and traveled an additional 115 feet after landing. There were no skid marks, indicating that Ms. Daigle had not made any attempt to stop. Another officer took pictures of the scene and these were admitted into evidence.

Deputy Langley checked Ms. Daigle for sobriety as well as he could and performed the nystagmus gaze test on her. In this test, a subject is asked to follow an object with their eyes and the officer looks for jerking in the eye movements. The result of this test was negative. It did not show signs of impairment. Officer Langley did not smell alcohol on Ms. Daigle.

16According to Deputy Langley, the double arrow sign that had originally been placed between the curb and the canal was found in the grass nearby and was not up at the time of the accident. He had no idea how long it had been down.

Susan Treadway testified that she has worked in the traffic engineering department for the Parish of Jefferson for thirteen years. This department is responsible for the erection and maintenance of traffic signs. The 1988 Manual on Uniform Traffic Control Devices was followed by her department at the time of the accident in question. The manual did not specify what type of sign should be placed at canal banks. It is standard practice for a black and yellow warning sign with double arrows to be erected at an intersection such as the one at Daniels Road and Oak-wood Drive. Ms. Treadway admitted that the sign was not upright at the time of this accident. The department did not, however, have a record of any complaints being received regarding this sign, nor were there any accidents at this location that indicated that there were any particular problems with this intersection. Accordingly to Ms. Treadway, the Parish does not have a crew that is specifically assigned to look for signs that may be down or obstructed; rather her department depends on notification from residents and other parish workers to let them know when there is a problem with a sign.

Wayne Winkler, an expert in accident reconstruction, recreation, and cause analysis, testified that he inspected this accident scene at night and used the pictures taken by the investigating officers to show that since Daniels Road continues on the other side of the canal, it gives drivers the false impression that the street continues across the canal. He noted that there were no stop signs at the intersections on Daniels Road leading up to Oakwood Drive, which gives drivers the false impression that there is no stop sign at the intersection of Daniels Road at Oakwood Drive. At the time he visited the scene, the double arrow sign was erect 17and was the first thing he noticed at the intersection. Mr. Winkler noted that Daniels Road is a wide street and that generally in Jefferson Parish, the speed limit on streets of this width is 30 miles per hour. Referring to the photograph labeled as plaintiffs exhibit number 29, depicting the intersection from the direction from which Ms. Daigle approached the intersection, which was taken by one of the investigating officers, Mr. Winkler estimated the stop sign was only 50% visible. Mr. Wink-ler estimated this photograph was taken 50 to 60 feet from the curb. He explained that the Manual of Uniform Traffic Control Devices states that the stopping distance for a vehicle traveling at 20 miles per hour is 115 feet; therefore a motorist should be able to see this stop sign from at least 115 feet away. He was of the opinion that on the night of the accident, this stop sign was not visible from at least 115 feet away due to foliage obstructing the sign. He explained that it takes 80 feet for a vehicle traveling at 20 miles per hour to stop. Again referring to exhibit number 29, which he determined was taken 25 feet from the stop sign, Mr. Winkler testified that, in his opinion, Ms. Daigle did not have enough time to stop.

Mr. Winkler estimated that, given the nine inch curb which Ms. Daigle hit and the location where she landed on the other side of the canal, she was traveling between 25 and 30 miles per hour when she hit the curb. He opined that the missing double arrow sign was a major factor in causing this accident. In his opinion, Ms. Daigle’s car was traveling about 25 miles per hour when it landed and then rolled to a stop. According to Mr. Winkler, alcohol was not suspected in this crash given the absence of the smell of alcohol on Ms. Daigle and the negative nystagmus test. Further, in his opinion, Mr. Winkler felt that had Ms. Daigle’s blood alcohol been .089 three hours after the crash, she would have shown signs of obvious intoxication at the time of the accident since her blood alcohol would have been .14 at the time of the accident. Mr. Winkler stated that if alcohol was used to |xwipe Ms. Daigle’s arm prior to drawing blood for her blood test, this could have caused a false positive in Ms. Daigle’s blood test. Mr. Winkler concluded that the Parish of Jefferson was the cause of this accident for failing to maintain the double arrow sign and failing to remove the obstruction from the stop sign.

On cross-examination, Mr. Winkler stated that he felt that the curb in question along the canal is not an indicator of the end of the street because the curb is the same color as the street. With regard to plaintiffs exhibit number 29, depicting the stop sign, Mr. Winkler was of the opinion that this picture was taken with a flash, and accordingly the lighting for this photo is not representative of what Ms. Daigle saw on the night of her accident. Mr. Winkler felt that the evidence disputes the allegation that Ms. Daigle was being chased at a high rate of speed at the time of the accident. The evidence indicates to him, rather, that she was traveling at 25 miles per hour at the time of the accident. Finally, Mr. Winkler testified that there were five accidents at this intersection in the year prior to Ms. Daigle’s accident which should have prompted the Parish to perform a study of this intersection.

After its Motion for Directed Verdict was denied, the Pai'ish presented the testimony of Dr. William George, an expert pharmacologist and toxicologist. Dr. George was of the opinion that, based on the report of a blood alcohol level of .089 three hours after the accident, Ms. Dai-gle’s blood alcohol level was .13 at the time of the accident. Dr. George concluded that alcohol was a significant factor in the cause of this accident. On cross-examination, Dr. George testified that a person with a blood alcohol level of .13 would not necessarily smell of alcohol; rather whether a person’s breath smelled of alcohol would depend on the type of alcoholic beverage consumed.

|9Fred Davidson, an expert in accident reconstruction, testified that he gathered evidence from the police report, photographs and depositions, and concluded that Ms. Daigle was traveling at a speed of 50 to 55 miles per hour at the time she hit the curb. Mr. Davidson disagreed with the calculations used by Mr. Winkler in estimating the vehicle’s speed, explaining that he used a different area of the vehicle to determine the distance traveled, and a different angle of takeoff to arrive at his conclusions. Mr. Davidson stated that a 10 to 12 inch long and 2 to 3 inch deep section of the curb was broken by the impact. Mr. Davidson was of the opinion that Ms. Daigle’s vehicle was traveling at 37 to 38 miles per hour as it slid to its final resting spot.

Mr. Davidson referred to the photograph of the intersection, plaintiffs exhibit number 29, in finding the curb was visible from about 150 feet away. He disagreed with Mr. Winkler’s opinion that the photograph was taken 25 feet from the stop sign. He based this on the fact that the expansion joints depicted in the picture are 27 feet apart. He also noted that the photograph was taken from a standing position. A driver would, however, be at a lower angle. It was his opinion, therefore, that well over 50% of the stop sign would be visible at a distance of 60 feet, which is 90 to 100 feet from the curb. Mr. Davidson further explained that a car’s headlights shine 150 feet in front of the car, meaning that the curb and grass canal bank would have been illuminated by the headlights. Mr. Davidson was of the opinion that 100% of the fault of this accident was due to the actions and inactions of Susan Daigle.

Susan Treadway, when called back to the stand by the Parish, testified that the Manual of Uniform Traffic Control Devices did not require that a double arrow sign be placed at an intersection such as this. She explained that the stop sign was the primary sign at the intersection. She further explained that there were only | inthree accidents at this intersection in the year prior to Ms. Daigle’s accident and that none of these accidents were similar to her accident. From January 1999 through the date of the accident in question, there were no complaints made to the Parish regarding signs at this intersection.

On cross-examination, Ms. Treadway acknowledged that she did not know how long the double arrow sign had been down, and that the Manual on Uniform Traffic Control Devices states that drivers should have a clear view of the stop sign at an intersection.

In rebuttal, the deposition testimony of Dr. Martin Ferris was read to the jury. Dr. Ferris is the medical director of the laboratory at West Jefferson Medical Center. He held this position in 1999. According to Dr. Farris, the specific person who drew Ms. Daigle’s blood for the blood alcohol test was not listed in the medical records introduced into evidence. There are archived records at the hospital that would state the name of the person who drew Ms. Daigle’s blood. Dr. Ferris also stated that it is extremely unusual to have blood drawn from the wrong patient. He explained that alcohol would have been used to wipe Ms. Daigle’s arm prior to the blood being drawn, but that this would not have changed the results of Ms. Daigle’s blood test because their lab does not test for that type of alcohol. Dr. Ferris concluded that it is more probable than not that the results in the medical records are from Ms. Daigle’s blood.

Mr. Winkler also took the stand in rebuttal. He disagreed with Mr. Davidson’s calculations because, in his opinion, Mr. Davidson’s calculations assume the front and back tires all left the ground at the same time, when in reality the front tires left the ground first, while the back tires were still on the ground. Mr. WinMer was of the opinion that if Ms. Daigle had been traveling at 50 miles per hour at the time of the accident, her car would have broken apart upon impact.

InAfter being instructed by the trial judge, the jury was given interrogatories to be answered. The first interrogatory, asking if the alleged defects in the roadway were in the custody or control of the defendant, was stipulated to by the parties. The second interrogatory, asking whether the roadway presented an unreasonable risk of harm in the June 25, 1999 accident, was answered negatively by the jury. Based on this finding by the jury, the trial judge rendered judgment in favor of the Parish, dismissing the Parish from this matter. This appeal followed the trial court’s denial of Ms. Daigle’s Motion for Judgment Notwithstanding the Verdict.

FIRST ASSIGNMENT OF ERROR— UNREASONABLE RISK OF HARM

In her first assignment of error, Ms. Daigle argues that a reasonable jury could not have found that the defects in the roadway did not present an unreasonable risk of harm to her based on the evidence presented that the double arrow sign was laying on the ground and that the stop sign was obscured by foliage. In support of this argument, Ms. Daigle cites the testimony of her expert, Mr. Winkler, that the intersection in question was unreasonably dangerous as it existed on the night of the accident. She argues that the Manual on Uniform Traffic Control Devices, which the Parish’s traffic engineer testified it follows, mandates that traffic control devices must give adequate time for the driver to properly respond. Mr. Winkler testified that the stop sign, which was obscured by foliage, did not give Ms. Daigle adequate time to respond. Ms. Daigle further argues that the absence of the double arrow sign and the fact that Daniels Road continues on the other side of the canal gives the false illusion that the roadway continued over the canal. Ms. Daigle concludes that since the Parish offered no evidence to rebut this testimony, the jury was manifestly erroneous in determining 112that the alleged defects in the roadway did not create an unreasonable risk of harm at the time of the accident in question.

The Parish responds that the jury’s verdict was supported by the evidence, especially the photographs of the accident scene, particularly plaintiff’s exhibit number 29, which obviously led the jurors to conclude that this was not an unreasonably dangerous intersection. The Parish points out that the photographs indicate that the stop sign controlling this intersection, as well as the curb running across the middle of the street, are clearly visible. The Parish cites the testimony of its expert, Mr. Davidson, who concluded that the sole cause of this accident was the actions and inactions of Ms. Daigle, noting that the curb was clearly visible to Ms. Daigle over 90 feet before she reached it. The Parish points out the testimony of Deputy Langley that he disagreed with Ms. Daigle’s counsel’s statement that this intersection gave a false impression that the road continued over the canal. The Parish contends that the testimony that Ms. Daigle was speeding and being chased by Mr. Mattei, as well as the medical records indicating a blood alcohol level of .089 three hours after the accident, support the jury’s finding. Finally, the Parish argues that the testimony of Ms. Treadway that the stop sign was the primary sign at the intersection, that the Parish had no notice that the double arrow sign was down, and that there were no accidents similar to Ms. Daigle’s accident at this intersection, also support the jury’s finding.

LSA-R.S. 9:2800, which is applicable herein, provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the | ^particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

In order to recover under this statute, a plaintiff must prove that: (1) the defendant owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Wilson v. City of New Orleans, 95-2129 (La.App. 4 Cir. 4/30/97), 693 So.2d 344, writ denied, 97-1701 (La.10/13/97), 703 So.2d 613.

Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Rizzuto v. State, Dep’t of Transp. and

Dev., 2002-1687 (La.App. 4 Cir. 3/17/04), 870 So.2d 1034, 1041. The manifest error-clearly wrong standard authorizes an appellate court to reverse a trial court’s factual finding only if we find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). This standard requires that the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding; rather, the reviewing court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The appellate court must determine whether the fact finder’s conclusion was reasonable, not whether the fact finder was right or wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two | ^permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly wrong. Id.

In the case at bar, Ms. Daigle was required to prove that the alleged defect created an unreasonable risk of harm. “The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. In fact, the vice or defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” Forbes v. Cockerham, 08-0762 c/w 08-0770 p. 33, (La.1/21/09), 5 So.3d 839, 859. Thus, Ms. Daigle had to prove to the jury that the intersection of Daniels Road and Oakwood Drive presented an unreasonable risk of harm to a person using ordinary care, and that action by the Parish of Jefferson could have prevented this harm.

A review of the record in its entirety indicates this jury’s finding is not manifestly erroneous or clearly wrong. Ms. Daigle presented the testimony of Mr. Winkler that the intersection created an unreasonable risk of harm because the double yellow sign was not in place and the stop sign was partially obstructed. Mr. Winkler also testified that Ms. Daigle was traveling at approximately 25 miles per hour which was five miles faster than the posted speed limit. The Parish, however, presented testimony that a double yellow sign was not required at this intersection and that the stop sign was not obstructed. The Parish also presented testimony that Ms. Daigle was traveling well over the posted speed limit and was intoxicated at the time of the accident. Thus, the jury was presented with two opposing causes of the accident in question: that the accident occurred because the roadway presented an unreasonable risk of harm, or that the accident occurred due to Ms. Daigle’s failure to use ordinary care. The jury found the latter. The jury obviously gave more credibility to the testimony and evidence presented by the Parish over that | ^presented by Ms. Daigle. We accordingly find no error in the jury’s finding that the roadway in question did not present an unreasonable risk of harm at the time of the accident in question.

SECOND ASSIGNMENT OF ERROR-MOTION IN LIMINE

In her second assignment of error, Ms. Daigle argues that the trial court erred in denying her motion in limine and, as such, in improperly allowing the introduction of a medical record purporting to show her blood alcohol content. She argues these records are defective because there is no signature of the person responsible for drawing the blood sample. She contends that under LSA-R.S. 13:3714, the person responsible for creating the records must be available for cross-examination, and that, because the records do not indicate the person drawing the blood and the person performing the test, the records cannot speak for themselves as per the statute and therefore should not have been admitted.

Ms. Daigle further argues that the time discrepancies in the medical records wherein the records reflect that she was transferred to Charity Hospital at 3:10 a.m. and the blood to determine alcohol level was drawn at 3:21 a.m. makes the results of the test unreliable.

11fiThe Parish responds that the records were properly admitted because they were certified records admitted in accordance with LSA-R.S. 13:3714. The Parish further argues the records were admissible as an exception to the hearsay rule under Judd v. State, Dept. of Transp. and Dev., 95-1052 (La.11/27/95), 663 So.2d 690. The Parish contends that the medical records indicate that the lab tests were completed at 3:21 a.m., not that the blood was drawn for these tests at 3:21 a.m. The Parish states that the Charity Hospital records indicate that Ms. Daigle did not arrive at Charity until after 6:00 a.m., and to believe Ms. Daigle’s argument would indicate it took over three hours to transfer Ms. Dai-gle from West Jefferson to nearby Charity-

The specific medical record which establishes Ms. Daigle’s blood alcohol level several hours after the accident is contained in the medical records obtained from West Jefferson Medical Center. These records were submitted into evidence by Ms. Dai-gle as well as the Parish. These records were certified and thus admissible under R.S. 13:3714 A. Further, Dr. Farris, the director of the laboratory at West Jefferson Medical Center, testified that the name of the individual drawing the blood was available in the archive records of the hospital. It is apparent from the record that the deposition of Dr. Farris was taken while this trial was in progress. This accident occurred in 1999 and the trial was not held until 2007. Certainly, Ms. Daigle was in possession of these records well before the trial and based on the testimony of Dr. Farris could have obtained the name of the individual who drew the blood.

Further, although Ms. Daigle argues that the results were unreliable because of the time discrepancies, this information was brought to the attention of the jury. Additionally, the jury was able to hear the testimony of Ms. Daigle that she did not 117consume alcohol in the hours preceding the accident, and that of the investigating officer that he did not smell alcohol on Ms. Daigle.

Moreover, as part of Ms. Daigle’s certified medical records, the record of her blood alcohol was admissible under Judd, swpra, which held that certified hospital records are admissible into evidence without the laying of any foundation beyond a showing of certification.

Ms. Daigle also argues that the records were irrelevant and their admission was unfairly prejudicial under La. C.E. art. 403. She contends there was ample testimony to indicate she was not intoxicated. Mr. Winkler concluded that Ms. Daigle was not intoxicated because Deputy Langley noted a negative nystag-mus test and there were no notations that there was odor of alcohol or that Ms. Daigle was visibly intoxicated. This argument ignores the holding that certified medical records are admissible as prima facie proof of their contents under LSA-R.S. 13:3714. Ms. Daigle attempted, although unsuccessfully, to rebut this evidence with her own testimony, and that of Mr. Winkler, and Deputy Langley.

For the above-stated reasons, we find the trial court did not err in admitting the medical record containing Ms. Daigle’s blood alcohol level.

THIRD ASSIGNMENT OF ERROR-EVIDENCE OF FOLIAGE TRIMMING

In her third assignment of error, Ms. Daigle contends the trial court erred in excluding evidence of the Parish’s subsequent act of trimming the foliage around the stop sign immediately following the accident. While acknowledging that subsequent remedial measures is inadmissible to prove liability, Ms. Daigle argues 11sthat this evidence was admissible to show the Parish had control over the foliage obscuring the stop sign, had knowledge of the defect, that the precautionary measures were feasible and to rebut the Parish’s contentions that the stop sign was not obscured.

The Parish responds that the photograph of the intersection accurately depicts the intersection at the time of the accident and shows the condition and visibility of the stop sign. The Parish contends that Ms. Daigle’s accident was the first notice that there may be a problem at the intersection and that the branches that partially hung over the stop sign were trimmed. The Parish concludes this was clearly a subsequent remedial measure and inadmissible under La. C.E. art. 407.

The jury was presented with several photographs of the intersection showing foliage partially obstructing the stop sign. These photographs show that although the stop sign is partially obstructed, the sign can be clearly seen as testified to by Mr. Davidson. The jury was able to clearly see the appearance of the intersection as it appeared on the night of the accident, as well as the day time photographs taken by Mr. Mattei. The photographs admitted into evidence show that the stop sign was partially obscured by foliage. The jury obviously concluded that this did not present an unreasonable risk of harm to Ms. Daigle at the time of the accident in question.

We find that the Parish’s subsequent act of trimming the foliage around the stop sign immediately following the accident was clearly a subsequent remedial measure and therefore inadmissible under La. C.E. art. 407. This assignment of error is accordingly without merit.

| FOURTH AND FIFTH ASSIGNMENTS OF ERROR — JURY CHARGES AND CUMULATIVE ERRORS

In her fourth assignment of error, Ms. Daigle argues the court erred in excluding a jury charge on constructive notice. In light of the above holding that there is no manifest error in the jury’s finding that the alleged defects in the roadway did not present an unreasonable risk of harm, this assignment of error is moot.

Likewise, having found no error in the trial court’s evidentiary rulings, Ms. Dai-gle’s fifth assignment of error arguing that the trial court’s cumulative errors denied her right to a fair trial, is also moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in this proceeding is hereby affirmed.

AFFIRMED.

      . LSA-R.S. 13:3714 provides in pertinent part:
      A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.
      C. Notwithstanding the provisions of this Section to the contrary, in any civil action, whenever the blood alcohol concentration (BAC) test results are from a source other than the office of state police crime laboratory of the Department of Public Safety and Corrections, if a timely challenge is raised in a court of competent jurisdiction to the authenticity, reliability, or accuracy of the test results, or to the lack of a proper foundation for the admissibility of the test results into evidence, the court shall conduct a hearing to determine the validity of the challenge and, if it finds that the challenge is well-founded, the court may rule the blood alcohol concentration test results inadmissible....

      . This Court has previously found the trial court did not abuse its discretion in excluding this evidence. Daigle v. the Parish of Jefferson, 06-968 (La.App. 5 Cir. 1/12/07) (unpublished writ disposition). Plaintiff’s writ to the Supreme Court on this matter was likewise denied. Daigle v. Parish of Jefferson, 07-0307 (La.2/27/07), 949 So.2d 427.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Nancy MONSON v. TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY, Toys “R” US-Delaware, Inc., ALS Properties, LLC, Sizeler Family Limited Partnership, and Parish of Jefferson.
    No. 09-CA-267.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.
    Writ Denied March 12, 2010.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Gennusa, Piacun & Ruli, Metairie, Louisiana, for Plaintiff/Appellant.
    Leonard J. Cline, Attorney at Law, Me-tairie, Louisiana, for Plaintifi/Appellant.
    Sidney J. Angelle, Brant J. Cacamo, Lobman, Carnahan, Batt, Angelle, and Na-dar, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Nancy Monson (“Ms. Monson”), appeals a trial court judgment granting an exception of prescription filed by defendant/appellee, Acadian Landscapes of Louisiana, Inc. (“Acadian”), in this slip and fall action. For reasons that follow, we affirm.

This matter has been before this Court previously. The facts as set forth in our prior opinion are:

The facts surrounding the incident are undisputed. Plaintiff drove to Toys “R” Us to purchase a birthday gift. After she completed that task, she decided to meet her daughter for a meal at a restaurant across the street. She moved her car to the edge of the Toys “R” Us parking lot that was closest to the Hess-mer Street Restaurant. As she stepped over the parking lot curbing onto the grassy area to reach the sidewalk, she stepped in a hole and fell, causing injuries to her ankle and leg. In her deposition, Ms. Monson testified that she did not move her car to the restaurant parking lot even though parking spaces were available there because she “didn’t want her car hit.”

|sThe fall occurred on September 7, 2002. The original action for damages was filed on August 18, 2003. In that original lawsuit, Ms. Monson sued Travelers Property and Casualty Insurance Company (“Travelers”); Toys “R” Us-Delaware, Inc. (“Toys “R” Us”); ALS Properties, LLC (“ALS”); Sizeler Family Limited Partnership (“Sizeler”); and the Parish of Jefferson (“the Parish”). Acadian was added as a defendant by a supplemental and amending petition filed on July 23, 2004.

Two of the defendants, Toys “R” Us and the Parish, filed motions for summary judgment. After a hearing on the matter, the trial court granted both summary judgments finding that, as a matter of law, neither Toys “R” Us nor the Parish owed a duty to plaintiff and, further, that the Parish had no notice of the defect. On appeal, we affirmed the ruling, with the following explanation:

While we do not agree with the conclusive statement made by the trial court that there is no duty owed by Toys “R” Us to maintain the grassy area, we do agree with the trial court that the summary judgment should be granted. We believe holes created in the area where plaintiff fell could give rise to the level of unreasonable risk of harm under the reasonable person standard. However, the plaintiff failed in her burden of proof that the holes were created by Toys “R” Us, or that Toys “R” Us had any knowledge of the holes. Thus, plaintiff has failed to show that, as a matter of law, Toys “R” Us owes her a duty that has been breached.

Acadian filed a motion for summary judgment that was denied by the trial court. Acadian filed an application for supervisory writs in this Court seeking review of that decision, which was denied on June 22, 2007. On April 3, 2008, the trial court granted an exception of no right or no cause of action in favor of ALS, dismissing that party from the lawsuit. It does not appear from the record before us that an appeal was taken from that judgment.

^Subsequently, Acadian filed a peremptory exception of prescription, which was granted by the trial court with written Reasons. It is that judgment which is presented for our review.

Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the date the injury is sustained. Ms. Monson’s accident occurred on September 7, 2002. She filed the original petition on August 13, 2003 naming several defendants, all of whom have been dismissed from the action by various means. Acadian was not added as a defendant until July 23, 2004 by the filing of a supplemental and amending petition.

It is well settled that the burden of proof in an exception of prescription lies with the party asserting it; however, where the petition shows on its face that it has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended.

Prescription is interrupted by the commencement of suit against the obli-gor in a court of competent jurisdiction and venue. Interruption of prescription by suit against one solidary obligor or joint tortfeasor is effective as to all. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist.

In the matter before us, the supplemental and amending petition adding Acadian as a defendant is clearly prescribed on its face; thus, the burden shifts to Ms. Mon-son to prove that the prescriptive period has been suspended or interrupted.

1 r,The petition in which Acadian was added as a defendant was filed on July 23, 2004. The allegation in the petition is that the defendants, Toys “R” Us, Sizeler, the Parish, and Acadian “owned, and/or maintained and/or had the care, custody and control of the property” on which Ms. Monson fell on September 7, 2002. As previously stated, all defendants except Acadian have been dismissed from the case with no finding of liability. Since, the only remaining defendant is Acadian and all other defendants have been found to be not liable, there is no issue of interruption or suspension of prescription based on the timely filing of the lawsuit against co-defendants.

In brief to this Court, Ms. Monson relies on the doctrine of contra non valen-tem to meet her burden of proof that prescription has not run against Acadian. Ms. Monson argues that co-defendant Toys “R” Us failed to promptly respond to her discovery requests seeking information regarding the entity responsible for landscaping the premises.

Generally, the doctrine of contra non valentem applies where a party is unable to act within the prescriptive period. The doctrine applies in four general situations:

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

[(¡The only applicable condition in the matter before us is the fourth category. The fourth category, commonly known as the “discovery rule,” begins with the principle that a plaintiff is deemed to know what he could have learned through reasonable diligence. In the discovery rule, prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Hence, prescription does not accrue as it does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable.

As this Court has explained:

For purposes of the discovery doctrine of contra non valentum [sic], a plaintiff will be deemed to know that which he could have learned from reasonable diligence.... If an opportunity is afforded to a party to know and to learn about a certain matter bearing on his interest and he fails or refuses to profit by it, if he closes his eyes to the notice spread before him and shuts his ears to oral information directly imparted to him, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted and of the notice given....
The precise point at which a plaintiff becomes aware of the facts sufficient for prescription to begin running is often difficult to identify, but the question is answered based on whether plaintiff was reasonable in delaying filing suit in light of his own information. ... These are factual questions which can only be determined by analysis of evidence.

On the trial of the peremptory exception prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true.

17At the hearing, evidence presented to the trial court showed that, while Ms. Monson filed suit against several parties within the one-year prescriptive period, she did not begin discovery until after the prescriptive period had run. The fall took place on a grassy area between the end of the Toys “R” Us parking lot and the sidewalk, an area that Acadian cut and maintained weekly. Ms. Monson argues that she was diligent in identifying all property owners and it was delays in answering interrogatories propounded to Toys “R” Us that caused her suit against Acadian to be filed untimely. However, the record shows that Ms. Monson did not issue interrogatories to Toys “R” Us until October 7, 2003, more than one year after the fall.

In its decision to grant the exception of prescription, the trial court relied on Renfroe v. State of Louisiana. In Renfroe, the plaintiff timely filed an action against the Louisiana Department of Transportation and Development (“DOTD”) for the death of his wife in an automobile accident that occurred on Causeway Boulevard. After it was discovered that the portion of the highway where the accident happened was not a state highway, the plaintiff filed a supplemental and amending petition adding Jefferson Parish Road District No. 1 as a defendant. That petition was filed after the prescriptive period had run. Ultimately, DOTD was dismissed from the lawsuit without a finding of liability and Jefferson Parish Road District No. 1 filed an exception of prescription. The exception was granted.

On appeal, the plaintiff in Renfroe made the argument that the doctrine of contra non valentem, applied. In rejecting that argument and affirming the grant of the exception of prescription, the Louisiana Supreme Court noted:

[T]he doctrine of contra non valentem only applies in “exceptional circumstances.” ... In fact, when this Court first officially recognized this fourth type of situation where contra \¿non valentem applies, we specifically clarified that “[tjhis principle will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own wilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.”
While it is indeed unusual that different unrelated parties would own and maintain different portions of one roadway, the fact that the portion of the roadway was owned by some party other that the DOTD was “reasonably knowable” by the plaintiff within the prescriptive period. Thus, the doctrine of contra non valentem does not apply in this case.

We find the trial court’s reliance on Renfroe is well placed. Given the fact that Acadian cut the grass and maintained the grassy area where Ms. Monson fell on a regular basis after the fall, we find the fact that Acadian could be responsible for causing the hole in which Ms. Monson fell was reasonably knowable. Accordingly, we find the doctrine of contra 'non valentem does not apply in this case.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Ms. Mon-son.

AFFIRMED.

      . Monson v. Travelers Prop. & Cas. Ins. Co., 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758.

      . Id. at 760.

      . 955 So.2d at 762. Although the appeal was also taken from the grant of summary judgment as to the Parish of Jefferson, Ms. Mon-son did not make any arguments or assign any errors relating to that defendant.

      . Monson v. Travelers Prop. & Cas., 07-C-455 (La.App. 5 Cir.6/22/07).

      .La. C.C. art. 3492.

      . Caro v. Bradford White Corp., 96-120 (La.App. 5 Cir. 7/30/96), 678 So.2d 615, 617.

      . La. C.C. art. 3462.

      . La. C.C. arts. 1799, 3503, 2324(C).

      . Renfroe v. State ex rel. Dep't of Transp. and Dev., 01-1646 (La.2/26/02), 809 So.2d 947, 950.

      . Travelers, as the insurer of one or more of the defendants, was also dismissed from the case on summary judgment.

      . Hospital Serv. Dist. No. 1 of Jefferson Parish v. Alas, 94-897 (La.App. 5 Cir. 6/28/95), 657 So.2d 1378.

      . Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211-12.

      . Caro v. Bradford White Corp., 678 So.2d at 618 (citations omitted).

      . La. C.C.P. art. 931.

      . 01-1646 (La.2/26/02), 809 So.2d 947.

      . Renfroe v. State of La., 809 So.2d at 953-54 (citations omitted).


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Dwight I. COLLINS, Jr.
    No. 09-KA-283.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for plaintiff/appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for defendant/appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The Defendant, Dwight Collins, Jr., appeals his conviction of possession with intent to distribute heroin, a violation of La. R.S. 40:966 A. We affirm the conviction, amend the sentence and remand for corrective action.

The Defendant was arraigned in August of 2007 and pled not guilty. He was found guilty by a jury on October 28, 2008. On November 7, 2008, the trial court sentenced the Defendant to imprisonment at hard labor for 35 years, the first five years without benefit of parole, probation, or suspension of sentence. The Defendant filed a motion to reconsider sentence that was denied. This timely appeal followed.

On July 12, 2007, Detective David Canas and other employees of the Jefferson Parish Sheriffs Office (JPSO) Narcotics Division were investigating three subjects (later identified as the Defendant, Dwayne Labranch, and Jonathan Lawrence) who they believed were selling narcotics from a hotel room in Metairie, Louisiana. At some point, the Defendant came out of the room and was detained. When Detective Canas entered the room, he observed in plain view a powdered substance on one of the dressers that later tested positive for heroin.

| sDetectíve Canas obtained a search warrant. During the execution of the warrant and search of the room, the officers found a clear plastic bag containing four small packages of heroin on the dresser, a clear plastic bag containing marijuana under the mattress, a digital scale inside the dresser, sandwich bags on a table, a razor blade on the floor, four cell phones, and $1,145.00 in U.S. currency ($410.00 on the dresser and $735.00 on Lawrence). During a search incident to arrest, the JPSO found three hotel room keys: one on Labranch, one on Lawrence, and a third one on a table which the Defendant said belonged to him.

After the State rested its case, the defense called Labranch who testified that the Defendant was a good friend he had known for 12 years. Labranch admitted that he had pled guilty to possession with intent to distribute heroin and marijuana in connection with this case. Labranch testified that he had rented the room at the hotel on the day in question, and that the items found in the room, including the heroin, belonged to him. He claimed that he was using heroin that day, and that he had it for personal use. Labranch stated that he never gave the Defendant a key to that room and that the Defendant did not participate with him in owning or possessing the drugs. Nor did the Defendant sell the drugs. Labranch contended that the Defendant did not know the drugs were in the room. Labranch disputed the Detective’s claim that the heroin was in plain sight. Labranch contended that it was in a hotel safe in his room. He also contended that he found the digital scale in the room and that it did not belong to him. Labranch said that the Defendant was in the room with him that day for one hour. He claimed that the Defendant remained the entire hour, and never went in or out of the room that he could remember. La-branch said that the Defendant left about 20 or 30 minutes before the police came.

On rebuttal, Detective Canas testified that, prior to the Defendant’s arrest, he observed the Defendant participating in a narcotics transaction.

LOn appeal, the Defendant asserts that the prosecution improperly introduced in its case-in-chief, and made repeated references to the post arrest silence of the Defendant, in violation of the holding in Doyle v. Ohio 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its progeny. In his second assignment of error, he asserts that in rebuttal the State improperly introduced evidence of other crimes without legal foundation or basis. Third, he claims that the verdict is contrary to the law and the evidence. Fourth, the Defendant argues that the trial judge erred in denying the motion to reconsider sentence. Fifth, the Defendant asserts that the trial judge erred in sentencing him to thirty five (35) years at hard labor. In his sixth assignment of error, the Defendant claims that a State witness delivered improper expert testimony as to the ultimate facts at issue at trial.

A) SUFFICIENCY OF THE EVIDENCE

The Defendant argues that the evidence was insufficient to support the verdict. He contends that the evidence was found in a hotel room not registered to him, and the operational keys were found in the possession of the two other subjects. He also contends that he was not found in the hotel room, and no physical evidence was found in his actual possession. He asserts that the State failed to prove that he was in constructive possession of the evidence and notes that no inculpatory statements were made.

The State responds that the evidence, when viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that the Defendant was in constructive, if not actual, possession of the heroin.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a | ¿reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

A determination of the weight of the evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Macon, 06-481, p. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-1286; State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. Macon, 06-481 at 7-8, 957 So.2d at 1286. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

The Defendant was convicted of violating La. R.S. 40:966 A which makes it unlawful for any person, knowingly and intentionally to produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I. Heroin is classified as a controlled dangerous substance in Schedule I.

The essential elements of the crime are 1) possession and 2) specific intent to distribute. The first element includes both actual and constructive possession. State v. Sandifer, 95-2226, p. 10 (La.9/5/96), 679 So.2d 1324, 1331; State v. Williams, 98-1006, p. 6 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 69, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. A person who was not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion or control. Williams, 98-1006 at 6, 735 So.2d at 69. The factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are: 1) the defendant’s knowledge that illegal drugs were in the area, 2) his relations with the person found to be in actual possession, 3) the defendant’s access to the area where the drugs were found, 4) evidence of recent drug use by the defendant, 5) the existence of paraphernalia, and 6) evidence that the area was frequented by drug users. Williams, 98-1006 at 7, 735 So.2d at 69.

According to Detective Canas, during the surveillance of the hotel room on the day of the arrest, the officers watched the Defendant leave and enter the hotel room several times, and they eventually detained him outside the room. After Detective Canas entered the room and looked around, he observed four small packages of heroin in plain view on the dresser. Each were wrapped individually with clear plastic, and all were contained inside a clear plastic bag. The officers obtained a search warrant for the room, and the officers recovered marijuana, a digital scale, sandwich bags, a razor, and $1,145.00 in cash.

The jury believed the Detective’s testimony that the heroin was found in plain view on the dresser. The evidence further shows the Defendant was good friends with Labranch, the person who rented the room, and the Defendant 17admitted he had access to the area where the drugs were found. In addition, prior to the arrest, Detective Canas saw the Defendant leave the room with the two co-defendants, get into a vehicle, conduct a drug transaction, and return to the hotel room. There was no evidence of recent drug use by the Defendant, the fourth factor, but the State proved the existence of paraphernalia in the room. Finally, evidence of the sixth factor, that the area was frequented by drug users, was shown by Labranch’s testimony that he was in the hotel room using the heroin.

We find that the State produced sufficient evidence to show that the Defendant constructively possessed the drugs based on the factors discussed in Williams.

The next essential element of the crime is intent to distribute. La. R.S. 14:10 defines specific criminal intent as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. White, 98-91, p. 5 (La.App. 5 Cir. 6/30/98), 715 So.2d 714, 717, writ denied, 98-2043 (La.11/25/98), 729 So.2d 577. Factors which may give rise to a reasonable inference that a defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. Id., 98-91 at 5-6, 715 So.2d at 717. This Court has held that by | describing the factors as useful, the Louisiana Supreme Court did not require that the evidence fall squarely within those listed factors to be sufficient for the jury to find the requisite intent to distribute. State v. Mosley, 08-1318, p. 9 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, 711.

In this case, the State provided sufficient evidence to show that the Defendant intended to distribute the drugs based on the factors discussed in White. Detective Canas witnessed the Defendant and the two-codefendants distributing drugs before the arrest. Further, Detective Canas testified that, based on his experience as a narcotics detective, he believed that the heroin was packaged for distribution purposes. That evidence alone is sufficient proof of the Defendant’s intent to distribute. Nevertheless, the evidence further shows that the amount of the drug retrieved in this case was 1.85 grams, which is inconsistent with personal use only, according to the testimony of Sergeant Klein. He testified that one-tenth of a gram of heroin would sell on the streets for $20.00 and that there were 20 “hits” of heroin if it was broken down to sell. Finally, Detective Canas and Sergeant Klein testified to the paraphernalia found in the room which evidences intent to distribute narcotics, thereby satisfying the fifth factor.

The jury found the State’s witnesses more credible than Labranch. As we stated previously, it is not the function of an appellate court to assess credibility or reweigh the evidence. Macon, 06-481 at 7-8, 957 So.2d at 1286. The testimony of those witnesses proved both possession and intent to distribute. Thus, viewing the evidence in the light most favorable to the prosecution, we find that a rational trier | gof fact could have found that the evidence was sufficient under the Jackson standard to support the conviction.

B) REFERENCES TO POST ARREST SILENCE OF THE DEFENDANT

The Defendant next argues that the prosecution improperly introduced repeated references to the post-arrest silence of the Defendant in its case-in-chief, thereby violating the holding in Doyle v. Ohio. He contends that, although his counsel failed to object to the testimony regarding his post-arrest silence, the trial judge had a duty to intervene and stop the questioning to preserve the fairness of the proceedings, and the State had a duty to refrain from exploiting defense counsel’s errors. He further contends that this issue is still reviewable on appeal under La. C. Cr. P. art. 920 and the jurisprudential exceptions to the contemporaneous objection rule.

The State responds that this issue has not been preserved for appeal, since the Defendant failed to object to the alleged violations as required by the contemporaneous objection rule. The State further responds this issue is not reviewable as an error patent under La. C. Cr. P. art. 920 and that there are no jurisprudential exceptions to the contemporaneous objection rule.

The Defendant challenges three references to his post-arrest silence that were made by the State, twice during its direct examination of Detective Canas and a third time during its direct examination of Sergeant Klein. Detective Canas and Sergeant Klein both testified that, after the subjects were advised of their right to remain silent by Sergeant Klein, the officers nevertheless asked them who owned the drugs and a card key that was on a table in the room. Both witnesses said that the subjects refused to answer the question regarding the drugs. Sergeant Klein 110also testified that, after being advised of his Miranda rights the Defendant voluntarily broke his silence and admitted that one of the keys belonged to him. In addition, the prosecutor asked Detective Canas the question about the drugs a second time, and Detective Canas reiterated that the subjects refused to answer the question. Detective Canas also testified that the three subjects refused to sign the forfeiture form in reference to the money that the officers took from them.

In Doyle, the United States Supreme Court held that reference to a defendant’s silence at the time of his arrest and after he received the Miranda warnings, for impeachment purposes, violates the defendant’s due process rights. The Supreme Court explained, “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested ... it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 617-18, 96 S.Ct. at 2244-45.

Under La. C. Cr. P. art. 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. When an admonishment is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. State v. Robinson, 04-964, pp. 14-15 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1126, (citing State v. Kersey, 406 So.2d 555, 559 (La.1981)). The granting of a mistrial is within the discretion of the trial court. Robinson, 04-964 at 15, 896 So.2d at 1126.

n A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes. Id,.

The State asserts that the Court need not reach this issue because the Defendant failed to object to the line of questioning. We agree.

In similar cases, the courts have held that the defendant must make contemporaneous objections to the prosecutor’s questions which elicit these facts. See State v. Arvie, 505 So.2d 44 (La.1987); State v. Divine, 98-812 (La.App. 5 Cir. 5/19/99), 738 So.2d 614, writ denied, 99-2393 (La.2/4/00), 754 So.2d 222, cert. denied, 530 U.S. 1219, 120 S.Ct. 2227, 147 L.Ed.2d 258 (2000); and State v. Trackling, 598 So.2d 615 (La.App. 4 Cir.1992), judgment reversed in part on, other grounds, 609 So.2d 206 (La.1992).

In Ame, the Louisiana Supreme Court noted that only when an error was so fundamental that it strikes at the very essence of the reliability of the fact-finding process does the Court refuse to apply the contemporaneous objection rule as a bar to review of the alleged error. Arvie, 505 So.2d at 47. There, the prosecutor referred in cross-examination to an accused’s post-arrest silence for impeachment purposes. The Court held that the defendant •was not relieved of his burden of objecting contemporaneously to the reference because it did not have the same substantial effect on the reliability of the fact-finding process as a) when the judge gives a jury instruction which erroneously defined the charged crime, or b) when the judge omits a jury instruction which was an essential prerequisite to the constitutionality of a statute. Id., 505 So.2d at 48.

In Divine, an officer testified to the defendant’s silence after he was advised of his Miranda rights. There, we found that the defendant was mandated to object contemporaneously to the alleged error because the trial judge did not have the | ^opportunity to admonish the jury. Furthermore, there was no indication of prose-cutorial misconduct in that case, and the error, if any, appeared to be harmless in view of other evidence and testimony. Id., 98-812 at 16-17, 738 So.2d at 623.

In Trackling, the State elicited testimony from the arresting officer regarding defendant’s post-Miranda silence, and in three other instances during trial the witnesses were questioned briefly as to defendant’s post-arrest silence, but no objection was raised. The defendant argued the testimony in question fit into the category of plain error, obviating the need for a contemporaneous objection or a motion for a mistrial. Citing Arvie, the appellate court found that the application of the plain error doctrine was unwarranted, and that the error may not be reviewed in the absence of a contemporaneous objection. Id., 598 So.2d at 617-18.

Here, like Arne, Divine, and Trackling, the Defendant’s attorney did not object when questions were asked by the prosecutor regarding the Defendant’s post-arrest silence. Thus, as in Divine, the trial judge did not have the opportunity to admonish the jury. In addition, as found by the courts in Arvie and Trackling, the application of the “plain error” doctrine is unwarranted, since even repeated reference to post-arrest silence for impeachment purposes does not affect the reliability of the fact-finding process to the extent that the error warrants review absent a contemporaneous objection. Therefore, we find that this issue was not properly preserved for appeal.

C) OTHER CRIMES EVIDENCE

The Defendant argues that the State improperly introduced other crimes evidence without providing notice to him. He specifically objects to Detective Canas’ testimony that he observed the Defendant engage in a drug transaction. The Defendant contends that the State could not use this testimony for impeachment purposes because the prior bad act did not result in either an arrest or a conviction and because he did not testify.

| iSThe State responds that Detective Ca-nas’ testimony was properly given in rebuttal to the testimony of defense witness, Dwayne Labranch. The State further responds that the error, if any, was harmless because of the overwhelming evidence of the Defendant’s guilt.

Dwayne Labranch testified for the defense. He stated that the Defendant did not sell drugs with him, and was in the hotel room with him that day for approximately one hour. He testified that the Defendant did not leave the room at all until 20 or 30 minutes before the police entered.

The State called Detective Canas as a rebuttal witness. Detective Canas testified that, prior to the Defendant’s arrest, he observed defendant involved in a narcotics transaction. He was “a hundred percent sure” that what he witnessed was a narcotics transaction. Detective Canas explained that he saw the Defendant, La-branch, and Lawrence leave Room 443 and get into a vehicle. The defense objected to this line of questioning, which was overruled. Defense counsel argued that the Defendant did not open the door to this testimony, and that the officer was testifying to another crime. The trial judge replied, “I think your witness did.” Nevertheless, Detective Canas then testified that the Defendant and the two-co-defendants went to another location where he watched Lawrence selling narcotics to another subject in a hand-to-hand transaction inside the vehicle. Detective Canas said that the Defendant and Labranch remained inside the vehicle during the transaction. Following the transaction, the three subjects went back to the hotel to the same room.

On cross-examination, Detective Canas testified that he did not charge the Defendant with that crime, and he had no narcotics or money present in evidence as a result of that crime. During redirect examination, Detective Canas indicated that the prosecutor had instructed him not to go outside a certain line of questioning.

|H After Detective Canas completed his testimony, defense counsel objected, stating that “all of this line has been very prejudicial,” and he demanded a mistrial. The prosecutor replied that the question was raised by defense counsel, and that defense counsel knew from side bar discussions that the prosecutor’s intention was to prevent a mistrial. The trial judge then denied the motion.

In Mosley, supra, the defendant complained that the trial court erred in allowing the State to introduce records of his prior narcotics convictions during cross-examination of a defense witness. During direct examination by defense counsel, the witness testified that she had never known defendant to sell narcotics. The trial judge subsequently allowed the prosecutor to question the witness about the defendant’s prior convictions finding that the defense had opened the door to the questions.

On appeal in Mosley, we found that, by questioning the witness regarding whether she knew defendant to be a drug dealer, defense counsel opened the door to rebuttal questioning by the State and, therefore, the questions were proper.

As in Mosley, we find in this case that the defendant opened the door to the Detective Canas’ rebuttal testimony regarding the drug transaction by asking La-branch if the Defendant had sold drugs.

Additionally, evidence of previous attempts to distribute narcotics may be considered in establishing intent. State v. Jackson, 05-923, p. 11 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 79, writ denied, 06-1589 (La.1/8/07), 948 So.2d 121. Thus, evidence of a defendant’s involvement in prior drug deliveries is clearly an exception to the general prohibition against evidence of other crimes. Id., 05-923 at 11-12, 926 So.2d at 79. Further, when a defendant opens the door to such evidence, Prieur notice is not required. State v. Marcotte, 01-1586, p. 13 (La.App. 3 Cir. 5/15/02), 817 So.2d 1245, 1253, writ denied, 02-1687 (La.2/7/03), 836 So.2d 96.

Nevertheless, even assuming the testimony constituted an impermissible reference to other crimes, such an error is subject to a harmless error analysis. State v. Smart, 05-814, p. 13 (La.App. 5 Cir. 3/14/06), 926 So.2d 637, 648, writ denied, 06-1225 (La.11/17/06), 942 So.2d 533. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Smart, 05-814 at 13, 926 So.2d at 648, citing, State v. Johnson, 94-1379, p. 18 (La.11/27/95), 664 So.2d 94, 102.

We have already determined that the evidence against the Defendant was sufficient to convict under the Jackson standard. Thus, we find that the verdict was surely unattributable to any other crimes reference, and thus, even if there was any error in overruling the Defendant’s objection to the testimony, the error was harmless.

D) IMPROPER EXPERT TESTIMONY

The Defendant argues that Detective Canas testified improperly as an expert regarding the ultimate issue of guilt, in violation of La. C. Cr. P. art. 704. He specifically objects to the detective testifying that the heroin was packaged for distribution purposes and that the scale, razor blade, and sandwich bags were used in the sale of narcotics. He contends that the detective usurped the jury’s role as the fact finder.

The State responds that this issue was not properly preserved for review because the Defendant did not lodge contemporaneous objections at the Inappropriate times. Alternatively, the State argues that, even if the trial court erred by admitting this testimony, the error was harmless because the testimony was cumulative.

Detective Canas testified during direct examination that he was a detective with the JPSO and had been employed with them for nine years. He stated that he was currently employed as a detective in the narcotics division and that he had been in that division for the past six years. He explained that he had made numerous arrests in those six years at all levels of narcotics dealing, from street trafficking to large search warrants, and his experience included all amounts of narcotics.

After discussing his background, the prosecutor asked Detective Canas what he believed the packaging of the heroin was indicative of, based on his experience as a narcotics detective for six years and in making numerous narcotics arrests. Defense counsel objected, stating that the witness had not been qualified as an expert and could not render an opinion. The prosecutor said, “I’m asking his experience [sic] of six years as a narcotics detective, has he come across that type of packaging, and what has it meant to him.” The trial judge said the witness could answer that question. Afterwards, Detective Canas testified, “That’s for distribution purposes.”

Detective Canas later testified without objection that, based on his experience, the scale and the razor were indicative of the sale of narcotics. Defense counsel did object when the prosecutor began to ask what the presence of sandwich bags indicated to him based on his experience. However, there was no ruling on that objection, and the detective continued his testimony, noting the sandwich bags were indicative of possession with intent to distribute.

The prosecutor subsequently asked Detective Canas what he believed was occurring when he saw the razor blade, digital scale, money, and the other items in 117the hotel room. The detective responded that he thought that narcotics were being sold. When asked why he arrested all three people, the detective replied that anyone who walked into that room would have knowledge that illegal narcotics activity was going on, as the drugs were in plain view and in sandwich bags. Furthermore, the detective stated he knew there were three people in the room.

On cross-examination, Detective Canas testified that he arrested the Defendant for possession with intent to distribute because of the way the heroin was packaged, “and the baggies, the scale, and all that.”

Sergeant Klein testified that he has been working for the JPSO for nine years, and was in the narcotics division at the time of the arrest. Sergeant Klein further testified, without objection, that the officers retrieved from the hotel room a small amount of heroin, some sandwich bags, cellular phones, some marijuana, digital scales, money, “everything that’s associated with the possession with the intent to distribute heroin.”

On redirect examination, the Sergeant identified the items found in the hotel room, including the heroin. He stated, without objection, that “the heroin; earlier I said it’s a small amount of heroin, being as it is a small package, but one tenth of a gram of heroin will sell on the streets for Twenty Dollars, and there would be ten Twenty Dollar packages of heroin in an Equal pack, and that’s how I referred to it when I explain it to people.” When asked how much heroin was in there, Sergeant Klein replied, again without objection, “that would be twenty hits of heroin, if you broke it down to sell it. And again, with the scale and the sandwich bags, that’s— and the money, that’s consistent with somebody in possession, with the intent to distribute heroin.”

Detective Canas and Sergeant Klein were not qualified as expert witnesses. Therefore, they testified as lay witnesses. La.C.E. art. 701 states:

|18If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

In State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80, defendant argued that the trial court erred in allowing opinion testimony from a detective who was not qualified as an expert. During trial, the prosecutor made a request to qualify the detective as an expert in the area of street packaging and sale of rock cocaine. Defense counsel objected to the intent to qualify the officer as an expert, but the trial judge stated that the officer could testify as to his knowledge and ordinary experience as a narcotics officer without being qualified as an expert. Questioning resumed, and the detective was asked about several seized items and their possible use in making crack cocaine, and about the manner of packaging marijuana for distribution.

Citing La.C.E. art. 701, this Court concluded that, although the witness was not questioned extensively about his professional experience in the area of narcotics sales, his answers indicated that he was testifying based upon his knowledge and personal experience. We found no error in the trial court’s admission of this testimony as it was based on his personal perceptions. Id., 94-641 at 7-8, 649 So.2d at 84-85. The Court in Boyd reviewed the merits of the objection even though defense counsel in that case only objected to the prosecutor’s intent to qualify the officer as an expert.

In this case, when the prosecutor first asked Detective Canas what the packaging of the heroin indicated to him, based on his experience, defense counsel lodged a contemporaneous objection asserting that the Detective was not qualified to testify as an expert. Defense counsel lodged another contemporaneous objection |19on the grounds that the testimony would be speculative when the prosecutor first asked the detective what the sandwich bags indicated to him, based on his experience. Like the Court in Boyd, we find that the issue has been properly preserved for appellate review.

In regard to the merits of the issue, the trial judge allowed Detective Canas and Sergeant Klein to testify only about matters which were based on their own perceptions. Additionally, Detective Canas testified in depth as to his professional experience. He explained that he had six years experience of being a narcotics detective at all levels of narcotics dealing and that he had made numerous arrests during that time. Thus, we find that the trial court did not err by admitting their testimony.

E) DENIAL OF MOTION TO RECONSIDER SENTENCE

The Defendant argues that his 35-year sentence is excessive, and that the trial court erred in denying his motion to reconsider the sentence. He contends that his conduct was not as severe as other individuals similarly situated, that he does not fall within the category of the most egregious violators of this offense, and that the record does not support a sentence that is 70 percent of the maximum possible sentence. He further argues that the trial judge did not cite La. C. Cr. P. art. 894.1 during sentencing, that a small amount of heroin was found, that the co-defendant testified that the hotel room and contraband were in his possession, that no contraband was found on the Defendant, and the Defendant was outside of the hotel room when he was arrested.

Prior to sentencing, the trial judge stated that he knew the Defendant had three prior felony convictions in Jefferson Parish and was advised that the Defendant had one in New Orleans. The trial judge said that this made the [gnDefendant a fourth felony offender, which would have subjected him to a sentencing range of 20 years to life. The trial judge then sentenced the Defendant to 35 years, the first five years to be served without benefit of probation, parole, or suspension of sentence.

At the sentencing hearing, the Defendant orally noticed his intent to appeal “this.” He subsequently filed a motion to reconsider sentence as required by La. C. Cr. P. art. 881.1. In his motion he only argued that the sentence was excessive and harsh.

When a defendant fails to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based the defendant is limited to a review of his sentence for constitutional excessiveness only. State v. Stevenson, 05-52, p. 11 (La.App. 5 Cir. 6/28/05), 908 So.2d 48, 55, writ denied, 05-2592 (La.6/2/06), 929 So.2d 1247. In this case, the Defendant failed to state the specific grounds for reconsideration of his sentence.

In addition, the Defendant did not raise the issue of the trial judge’s failure to comply with La. C. Cr. P. art. 894.1 in the trial court or in his motion to reconsider sentence. Thus, he is precluded from raising this issue on appeal. State v. Hawkins, 06-739, p. 22 (La.App. 5 Cir. 9/25/07), 968 So.2d 1082, 1095, writ denied, 07-2272 (La.4/18/08), 978 So.2d 347.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4.

A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light | ⅞| of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a sentence for abuse of the trial judge’s discretion, the appellate court considers 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id., 07-332 at 15-16, 975 So.2d at 656.

The penalty for possession with intent to distribute heroin is imprisonment for not less than five nor more than 50 years at hard labor, at least five years of which must be served without benefit of probation, or suspension of sentence, and the possible imposition of a fine of not more than $50,000.00. La. R.S. 40:966 B(l).

Prior to the amendment to the statute in 2001, the penalty was mandatory life imprisonment. We have found no cases since the amendment that are comparable to the facts and sentence here. We note, however, that prior to the amendment of the statute, we upheld a mandatory life sentence for a conviction of possession with intent to distribute heroin even though the crime is not a violent offense, and the defendant was only 21 years old. State v. Jackson, 99-1368, p. 8 (La.App. 5 Cir. 5/17/00), 762 So.2d 253, 258, writ denied, 00-1948 (La.9/21/01), 797 So.2d 60.

22 It is well established that the legislature has a unique responsibility to define criminal conduct, and to provide for the penalties to be imposed against persons engaged in such conduct. Jackson, 99-1368 at 8, 762 So.2d at 258. The penalties provided by the legislature reflect the degree to which the criminal conduct affronts society. Id. Courts must apply these penalties unless they are found to be unconstitutional. Jackson, 99-1368 at 8, 762 So.2d at 258.

The Defendant here possessed heroin with the intent to distribute it from a hotel room. He has four prior felony convictions which would have subjected him to a sentencing range of 20 years to life. The State did not file a habitual offender bill. Although the Defendant received a sentence in the upper end of the sentencing range, we find that the trial judge did not abuse his discretion in sentencing the Defendant to 35 years at hard labor, and in denying the Defendant’s motion to reconsider sentence.

ERROR PATENT

The record was reviewed for patent errors in accordance with La. C. Cr. P. art. 920. See, State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547. The review reveals errors patent in this case.

1) Errors in the commitment

The commitment indicates that the sentence on the conviction for possession with intent to distribute heroin was to be served concurrently with the sentence in case number 07-4498; however, the transcript does not reflect that the trial judge ordered the sentence to be served concurrently with any other sentence. Where there is a conflict between the transcript and commitment, the transcript prevails. State v. Collins 07-0310, p. 3 (La.10/12/07), 966 So.2d 534, 535; State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we will remand the case to the trial court for | ^correction of the commitment to conform to the transcript. State v. Jackson, 07-975, p. 13 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 254.

2) Sentence irregularity

The trial judge sentenced the Defendant to imprisonment at hard labor for 35 years, the first five years to be served without benefit of parole, probation, or suspension of sentence. However, La. R.S. 40:966 B(l) does not require a defendant’s sentence to be served without benefit of parole. Accordingly, the sentence is amended to allow for the possibility of parole in accordance with the applicable sentencing provisions. See State v. Wright, 06-1141 (La.2/16/07), 949 So.2d 404 and State v. Battaglia, 03-692, p. 11 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 711, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058. In addition, the trial court is ordered to correct the commitment in accordance with this opinion. See State v. Burks, 04-1435, p. 16 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, 404, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176. Finally, the Clerk of Court for the district court is ordered to transmit the original of the amended commitment to the officer in charge of the institution in which the Defendant is incarcerated. See La. C. Cr. P. art. 892 B(2); State ex rel. Stark v. State, 06-1457 (La.2/16/07), 949 So.2d 409, 410.

3)Post-conviction relief notification

La. C. Cr. P. art. 930.8 A states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Here, the transcript shows that the trial judge advised the Defendant that he had “two years from the date the sentence becomes final to file post conviction relief applications.” The commitment, however, states that the trial judge advised the Defendant that he had “two (2) years after judgment of conviction and sentence 12.thas become final to seek post-conviction relief.” As noted previously, the transcript prevails.

The failure of the trial court to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Holmes, 08-719, p. 14 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 283. In the past, we ordered the trial court to properly advise the defendant of the prescriptive period for filing an application for post-conviction relief pursuant to La. C. Cr. P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that the defendant received the notice. Id. However, recently we have chosen to correct this error in the opinion rather than by remanding the case, citing State v. Morris, 40,322, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363. See Holmes, 08-719 at 14, 10 So.3d at 283; State v. Davenport, 08-463, pp. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ den., 19 So.3d 473, 2009-0158 (La.10/16/09).

We find this procedure an appropriate method of notifying the Defendant of the prescriptive period for post-conviction relief. Therefore, we hereby advise the Defendant that no application for post-conviction relief, including an application which seeks an out of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 and 922.

DECREE

Accordingly, the Defendant’s conviction is affirmed. The case is remanded to the trial court to amend and correct the commitment to conform with the sentencing transcript. In addition, we amend the sentence to allow the possibility of parole, in accordance with the applicable sentencing provisions of La. R.S. 40:966. The trial court is ordered to correct and amend the commitment to reflect the | ^availability of parole accordingly. Finally, the Clerk of Court for the district court is ordered to transmit the original of the amended commitment to the officer in charge of the institution in which the Defendant is incarcerated.

CONVICTION AFFIRMED, SENTENCE AMENDED, CASE REMANDED FOR CORRECTION OF COMMITMENT.

      . The sufficiency of the evidence issue is addressed first in accordance with State v. Hearold, 603 So.2d 731, 734 (La.1992).

      .See State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, writ denied, 03-0909 (La.9/26/03), 854 So.2d 345 where the defendant had possession of a key to the apartment where cocaine was found.

        See also State v. Brown, 04-1194, at 8 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, 547-48, writ denied, 05-1637 (La.2/3/06), 922 So.2d 1173 where we found that the defendant had access to the area that the drugs were found because the evidence showed that defendant was inside the house shortly before the search warrant was executed and a detective saw defendant leave the house during his surveillance.

      . See State v. Hearold, 603 So.2d 731 (La.1992) (the combination of prior drug distribution and the amount of drugs found in the bag was sufficient evidence to convict defendant of possession with intent to distribute.) See also State v. Marshall, 02-1067 at 5-9, 841 So.2d at 886-88 (defendant seen engaging in an apparent narcotics sale the day prior to the search.)

      . The Defendant raises the Detective’s testimony as an expert in his sixth assignment of error.

      . See State v. Decay, 07-966, p. 8 (La.App. 5 Cir. 6/19/08), 989 So.2d 132, 138, writ denied, 08-1634 (La.4/13/09), 5 So.3d 161 in which we found that the detective's testimony that the powder cocaine was individually packaged for sale was sufficient proof of defendant's intent to distribute.

      . La. C. Cr. P. art. 920 provides:
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Doyle only prohibits the use of defendant’s silence at the time of arrest and after Miranda warning for impeachment purposes. Robinson, 04-964 at 14, 896 So.2d at 1126; State v. Arvie, 505 So.2d 44, 46 (La.1987)). An oblique and obscure reference to a defendant's post-arrest silence, where the examination does not stress the right to remain silent or attempt to elicit testimony regarding the defendant's failure to respond to police questioning does not constitute reversible error. Id. Thus, the State may pursue a line of questioning that attempts to summarize the extent of the investigation, when such questions are not designed to exploit tire defendant's failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Robinson, 04-964 at 14, 896 So.2d at 1126.

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

      . We addressed the sentencing issue out of order and discuss it prior to the patent error discussion.

      . La. C. Cr. P. art. 704 states:
      Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

      . The two assignments are discussed together since they are related, and defendant addressed them together in his brief.

      . See, 2001 La. Acts No. 403, § 4, effective June 15, 2001; State v. Dick, 06-2223, p. 4 (La.1/26/07), 951 So.2d 124, 127.