CORRECTED OPINION
BRIANNA CARRIE * NO. 2021-CA-0659
VERSUS * COURT OF APPEAL WILLIE JONES * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-03906, DIVISION “I” Honorable Lori Jupiter, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Paula A. Brown)
Brianna Carrie 8319 Apple Street New Orleans, LA 70118
PRO SE PLAINTIFF/APPELLEE
Richard G. Perque LAW OFFICES OF RICHARD G. PERQUE, LLC 700 Camp Street New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED JANUARY 21, 2022 PAB DLD JCL This is a civil appeal arising out of alleged domestic abuse.
Plaintiff/Appellee, Brianna Carrie (“Plaintiff”), filed a petition for protection from
abuse from Defendant/Appellant, Willie Jones (“Defendant”). Following a
hearing, the district court entered judgment in favor of Plaintiff and issued a twelve
(12) month order of protection against Defendant. It is from this judgment
Defendant seeks appellate review. For the reasons that follow, we affirm the
district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2021, Plaintiff filed, in the district court, a petition for protection
from abuse, pursuant to La. R.S. 46:2131 et seq.1 (the “Petition”), against
Defendant. Plaintiff alleged that she and Defendant formerly dated and share a
child in common.2 Plaintiff contended that Defendant had slapped, choked,
stalked, threatened her life with bodily harm, and verbally and mentally harassed
her. Plaintiff complained that in the most recent incidents of abuse Defendant sent
1 La. R.S. 46:2131 et seq. is the Domestic Abuse Assistance Act. 2 Plaintiff did not seek protection for the minor child.
1 her threatening text messages on April 21, [2021], writing that he hoped Plaintiff
would die so that he could take his son away, and a March 21, [2021] text message,
wherein Defendant threatened Plaintiff to repay money he loaned her or he “will
show” her. Plaintiff alleged that she and Defendant mostly communicated via text,
and since she began dating someone else, Defendant has told her repeatedly that if
she did not tell him where she lives, he “will show” her and her new boyfriend
Plaintiff also alleged past incidents of abuse. Plaintiff contended in 2019,
Defendant appeared at her brother’s house with his firearm holstered around his
waist and threatened her. Plaintiff further alleged that she and Defendant broke up
in 2019, and Defendant has continuously threatened her since that time. Plaintiff
contended that because Defendant carries a firearm, she does not feel safe. In
2018, after their son was born, Plaintiff alleged Defendant hit, slapped and choked
her.
Plaintiff prayed for immediate issuance of an ex parte temporary restraining
order (“TRO”) to prohibit Defendant from abusing, harassing, assaulting, stalking,
and threatening her; to prohibit Defendant from contacting her, including by means
of a third party; to prohibit Defendant from going within one hundred (100) yards
of her person, residence, and place of employment; to order Defendant not to
damage any of her belongings or interfere with her living conditions; to order
Defendant to seek professional counseling or complete a court-monitored domestic
abuse intervention program; and that Defendant be cast with costs. On May 7,
2021, the district court issued a TRO, effective through the pendency of the
protection order hearing (the “hearing”) scheduled for May 27, 2021.
On May 17, 2021, Defendant, in opposition to the Petition, filed a motion to
dissolve/vacate protection order and dismiss the petition for protection. In that
2 motion, Defendant argued that the protection order was wrongfully issued against
him; the petition should have been denied on its face for failure to allege harm,
danger or abuse sufficient for ex parte relief; Plaintiff is not entitled to the relief of
a protection order; and Plaintiff would not prevail in the proof of what is asserted
to be entitled to an order of protection. The district court denied Defendant’s
motion on May 18, 2021.
On May 27, 2021, Plaintiff, in proper person, and Defendant, represented by
counsel, appeared for the hearing. At the conclusion of the hearing, the district
court, relying on Plaintiff’s testimony and photocopies of text message
screenshots, issued a twelve (12) month protection order in favor of Plaintiff and
against Defendant, effective through May 27, 2022. Defendant was ordered to
cease all abuse against Plaintiff and refrain from contacting her, to not go within
one hundred (100) yards of Plaintiff’s person or her residence, to stay away from
her place of employment, and to not damage any of Plaintiff’s property and
belongings or in any way interfere with Plaintiff’s living conditions. The district
court ordered Defendant to transfer possession of his firearm to the sheriff’s
department and ordered him to seek professional counseling and/or complete a
court monitored domestic abuse intervention program. The district court granted
Plaintiff temporary custody of her and Defendant’s shared child in common and
ordered supervised visitation for Defendant. All costs were cast against Defendant.
This appeal timely followed.
STANDARD OF REVIEW
This Court has previously set forth the standard of review for protection
orders:
3 “An appellate court reviews domestic orders for an abuse of discretion.” Patterson v. Charles, 19-0333, p. 9 (La. App. 4 Cir. 9/11/19), 282 So.3d 1075, 1082 (citation omitted). “The trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error.” Id (citation omitted). In addition, as to evidentiary issues, “[a] trial court is granted broad discretion in its rulings on evidentiary issues which will not be disturbed on appeal absent a clear abuse of that discretion.” Cipolla v. Cox Commc’ns La., LLC, 19-0509, p. 2 (La. App. 4 Cir. 8/5/20), 305 So.3d 911, 914 (quoting Freeman v. Phillips 66 Co., 16-0247, p. 4 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 441). The Court is also “required to examine the record ... for legal error.” St. Germain v. St. Germain, 20-0146, p. 9 (La. App. 4 Cir. 3/17/21), 315 So.3d 443, 450 (citing City of New Orleans v. Badine Land Ltd., 07-1066, p. 3 (La. App. 4 Cir. 5/21/08), 985 So.2d 832, 834). “[L]egal errors are reviewed under the de novo standard of review.” Id. (quoting 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 15-0301, p. 5 (La. App. 4 Cir. 12/23/2015), 183 So.3d 724, 727).
“A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Id. (citation omitted). “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id. (quoting Evans v. Lungrin, 97-0541, p. 7 (La. 2/6/98), 708 So.2d 731, 735). “Where an error of law taints the record, we are not bound to affirm the judgment of the lower court.” Id. (quoting City of New Orleans, 07-1066, p. 3, 985 So.2d at 834-35). However, “[a]s long as the trier of fact’s findings are reasonable in light of the record as a whole, the appellate court will affirm.” Shaw v. Young, 15-0974, p. 4 (La. App. 4 Cir. 8/17/16), 199 So.3d 1180, 1184 (citation omitted).
McKinsey v. Castle, 2021-0368, pp. 5-6, 2021 WL 3522093, at * 3 (La. App. 4
Cir. 8/10/21).
DISCUSSION
4 On appeal, Defendant assigns two (2) errors: (1) the district court abused its
discretion in the issuance of a protection order by failing to find a violation of the
Criminal Code as required pursuant to La. R.S. 46:2132(3) and (2) the district
court erred in admitting text messages, which were unauthenticated and lacked the
proper foundation, into evidence. Because Defendant’s second assigned error is an
evidentiary issue, we will address it first.
Authentication of and Admissibility of the Text Messages
Defendant, citing La. C.E. art. 901(A), argues that the introduction of the
unauthenticated text messages between him and Plaintiff over his objection was in
direct contrast to the rules of evidence. Defendant further argues the text messages
offered into evidence are inadmissible hearsay as defined by La. C.E. art. 801(C).3
At the hearing, after Plaintiff, who appeared pro se, was sworn in, the
district court proceeded to query her regarding the allegations contained in the
Petition. Plaintiff testified that Defendant repeatedly texted her threats and curse
words. After she testified, Plaintiff provided the district court with photocopies of
twelve (12) screenshots of text message exchanges (the “text messages”) between
her and Defendant. Before reviewing the documents, the district court instructed
defense counsel to review the text messages with Defendant.
Following, the district court, addressing counsel for Defendant, asked,
“[H]as your client looked at these and authenticated these? I want to take a look at
them. Do you have, is there any objection? Let me take a look at it. [Defendant],
can you stand up and raise your right hand?” There being no contemporaneous
objection, the district court swore in Defendant and began to question him
3 “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C).
5 regarding the contents of the text messages. The district court first asked
Defendant to recite his phone number. The phone number recited by the
Defendant is the number depicted as a sender and recipient of the text messages.
After Defendant authenticated his phone number, the district court read a
few text message exchanges in open court, to which Defendant responded that the
text messages were not abusive. Defendant further stated that if there were text
messages from him, he was retaliating against Plaintiff because of the voicemail
messages she left on his phone. The district court advised Plaintiff that she could
submit the text messages into evidence, and, again, asked counsel for Defendant if
there were any objections. This time, counsel for Defendant lodged an objection to
admitting the text messages into evidence on grounds that the text messages were
taken out of context, the defense had just received the text messages, and the text
messages did not relate to Plaintiff’s allegations. The district court overruled
Defendant’s objection and admitted the text messages into evidence. The district
court reasoned that Defendant’s authentication of his phone number indicated he
had received the text messages within some point in time.
A trial judge shall make the initial authentication decision as to the
admissibility of evidence. State v. Lee, 2001-2082, p. 9 (La. App. 4 Cir. 8/21/02),
826 So.2d 616, 624; see also La C.E. art. 104(A). “‘Authentication’ is a process
whereby something is shown to be what it purports to be.” State v. Coleman, 2012-
1408, p. 22 (La. App. 4 Cir. 1/8/14), 133 So.3d 9, 25 (citing Malloy v. Vanwinkle,
1994-2060 (La. App. 4 Cir. 9/28/95), 662 So.2d 96, 100). “[I]t is a fundamental
law of evidence that an article or substance which is introduced as demonstrative
evidence, or to which a witness is asked to testify, must be sufficiently identified as
the one involved in the occurrence in question.” McKinsey, 2021-0368, p. 7, 2021
6 WL 3522093, at * 3 (quoting State v. Hotoph, 1999-243 (La. App. 5 Cir.
11/10/99), 750 So.2d 1036, 1045)(citation omitted). La. C.E. art. 901(A) provides
that the requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims. La. C.E. art. 901(B) provides an
illustrative, though not exhaustive, list of examples of authentication or
identification of evidence. See Archaga v. Johnson, 2019-0085, p. 12 (La. App. 5
Cir. 10/16/19), 280 So.3d 331, 340-341. Authentication of photocopies of text
message exchanges may be accomplished by the recipient, or by a person who has
personal knowledge of and digitally possesses the original text message exchanges.
Id., 2019-0085, p. 13, 280 So.3d at 341.
In the case sub judice, both Plaintiff and Defendant authenticated the text
messages. Plaintiff offered to introduce the text messages into evidence during her
case-in-chief to show threats and abuse endured from Defendant. On cross-
examination, Plaintiff testified that all of the text messages were stored on her cell
phone. The record is devoid of any additional controverting testimony or evidence
elicited from Plaintiff as to the authenticity of the text messages. Defendant, after
being duly sworn, testified to his phone number, which is clearly depicted as the
sender and recipient of the text messages. When questioned by the district court
regarding a specific text message exchange, Defendant admitted to sending
Plaintiff the text message. In addition, Defendant testified that the text messages
showed the lack of communication he had with Plaintiff; thus, further
corroborating that he had sufficient personal knowledge of the text messages, and
that he was the sender and recipient of the text messages. We conclude the record
supports a finding that the text messages were properly authenticated.
7 We further conclude that the text messages were not improperly admitted
into evidence. La. C.E. art. 801(D)(2)(a) provides that a statement that is offered
against a party and is the party’s own statement, in either his individual or
representative capacity, is not inadmissible hearsay. Because the statements
contained in the text messages were made by both Plaintiff and Defendant, the text
messages are not inadmissible hearsay.4
Accordingly, the district court did not abuse its discretion in authenticating
and admitting Plaintiff’s text messages. This assignment of error is without merit.
Issuance of the Protection Order
In his second assignment of error, Defendant argues that the district court
abused its discretion in the issuance of a protection order against him. Specifically,
Defendant contends that Plaintiff failed to provide any specific instances of
domestic abuse, physical or non-physical, as defined in the Criminal Code of
Louisiana as required pursuant to La. R.S. 46:2132(3), and instead the district court
solely relied on photocopies of unauthenticated hearsay text messages as evidence
of abuse.
Under the Domestic Abuse Assistance Act, a court may issue a protection
order pursuant to La. R.S. 46:2131 et seq. The intent of the Act is to provide a
civil remedy of immediate and easily accessible protection to endangered persons
from domestic abuse. See D.M.S. v. I.D.S., 2014-0364, p. 15 (La. App. 4 Cir.
3/4/15), 225 So. 3d 1127, 1137. “‘Domestic abuse’ includes but is not limited to
physical or sexual abuse and any offense against the person, physical or non-
physical, as defined in the Criminal Code of Louisiana, except negligent injury and
4 See Archaga, 19-0085, pp. 13-14, 280 So.3d at 341 (wherein the appellate court held that pursuant to La. C.E. art. 801(D)(2)(a), photocopies of text messages admitted into evidence by the plaintiff and against the defendant were not inadmissible hearsay).
8 defamation, committed by one family member, household member, or dating
partner against another.” La. R.S. 46:2132(3). Moreover, “the definition of
domestic abuse in La. R.S. 46:2132(3) does not include nonphysical acts, such as
general harassment and family arguments, unless the non-physical acts constitute
an offense against the person as defined in the Louisiana Criminal code.” S.M. v.
T.M., 2019-369, p. 8 (La. App. 5 Cir. 12/26/19), 289 So.3d 141, 147.
As previously noted, “[a]n appellate court reviews domestic orders for an
abuse of discretion.” McKinsey, 2021-0368, p. 3, 2021 WL 3522093 at * 2. “In
accordance with La. R.S. 46:2135 and 46:2136, the issuance of a protection order
requires that there be ‘good cause shown’ [by the petitioner].” Id. at * 2 (citation
omitted). Pursuant to La. R.S. 46:2135, “good cause shown” is an immediate and
present danger of abuse against the petitioner. See Id. Upon “good cause shown,”
the court may enter a TRO, as it deems necessary to protect the petitioner from
domestic abuse. See La. R.S. 46:2135(A). “The court shall consider any and all
past history of abuse, or threats thereof, in determining the existence of an
immediate and present danger of abuse.” Id. “There is no requirement that the
abuse itself be recent, immediate, or present.” Id. The petitioner must show that
allegations of abuse are true by a preponderance of the evidence. See Id.; see also
Rodriguez v. Claassen, 2016-0610, pp. 9-10 (La. App. 4 Cir. 12/21/16) 207 So.3d
490, 496-497. “Proof is sufficient to constitute a preponderance of the evidence
when the entirety of the evidence, both direct and circumstantial, shows that the
fact sought to be proved is more probable than not.” Patterson v. Charles, 2019-
0333, p. 10 (La. App. 4 Cir. 9/11/19) 282 So.3d 1075, 1083 (citing Head v.
Robichaux, 2018-0366, pp. 3-4 (La. App. 1 Cir. 11/2/18), 265 So.3d 813,
816)(citation omitted).
9 At the May 27, 2021 hearing, Plaintiff, Defendant and Defendant’s wife
testified. Plaintiff testified that she and Defendant were dating partners from 2015
until their separation in 2019. After she and Defendant separated, he followed her
in his truck, stalked her and threatened her life. Plaintiff relayed a specific incident
after the separation, while she was at her brother’s house, defendant appeared,
uninvited, with his firearm strapped around his hip and demanded to see his son, or
he was going to “show” her. Plaintiff said she and Defendant mostly
communicated via text message, and Defendant repeatedly texted her threats and
curse words. She mostly communicated with Defendant’s wife regarding Plaintiff
and Defendant’s son. Plaintiff testified that because Defendant carries a firearm on
him all the time, she does not feel safe. According to Plaintiff, Defendant told her
he was going to kill her if she did not repay him money and has told her “I will
show you” on multiple occasions, which she interpreted as a threat to her life.
Defendant admitted he texted Plaintiff, but he denied physically threatening,
and abusing her. Defendant also affirmed that he owns and carries a firearm but
testified that he has never intimidated, threatened, or pointed his firearm at
Plaintiff. When specifically questioned by the district court, Defendant admitted
he texted Plaintiff on April 21, [2021], stating that he hoped she would just die so
that he could take his son away. However, Defendant explained that he has had
Plaintiff blocked from calling his phone for over three (3) years and any text
message he sent her was in retaliation to the threatening messages she left on his
voicemail, wherein Plaintiff allegedly cursed at him and told him she wished he
10 would die.5 Defendant said that he and Plaintiff barely communicated, as Plaintiff
typically spoke to his wife Angela, regarding their son.
Defendant also testified that when he said he would “show her”, he meant
that he would show her with legal proceedings; he only threatened to take her to
court regarding their son. Defendant corroborated Plaintiff’s testimony that he did
go to her brother’s house, but he said he only went to see his son. Defendant
relayed that his only request to Plaintiff was for her to repay the $2,500 he loaned
her for a car.
Angela testified that she knows Plaintiff from a previous employment
relationship. She recounted that Plaintiff and Defendant share a child and she
communicates with Plaintiff on Defendant’s behalf. Angela stated that she does
not recall any instances of threats made upon Plaintiff by Defendant. Angela also
affirmed that Defendant owns a firearm and carries it with him all the time but said
she had never seen Defendant point it at anyone.
The district court, after hearing the testimony of the parties, issued an order
of protection against Defendant. In reaching its decision, the district court
explained:
[Plaintiff] filed this petition for protection from abuse, she filed it on her behalf and she wants to be protected from you, [Defendant], because she feels that you are a threat to her. The reason why she feel[s] like you’re a threat to her [ ] is because she said several incident[s,] one of which she says on April 21 you texted and told her that wish she would die, that’s something you have admitted to . . . you testified was true. There is other past incidents (sic) of abuse whereby . . . [Plaintiff] feels like you can be a possible threat or threat to her as not only from April 21 but from a period of a long time in which she has testified today[,] that she’s made the decision now to
5 At the hearing, Defendant played a voicemail message, dated October 19, 2021, which purportedly was a recording of Plaintiff making threatening statements to him. Defendant did not offer any such recordings or statements allegedly made by Plaintiff into evidence, and the record does not contain a transcription of the recording.
11 come to the court to use the legal system for protection. So therefore, I’m going to grant this petition for protection from abuse.
It is well-settled law that “[w]hen the factual findings are based on the
credibility of witness testimony, the appellate court must give great deference to
the fact finder’s decision to credit witness testimony.” Watts v. Watts, 2008-0834,
p. 2 (La. App. 4 Cir. 4/8/09), 10 So.3d 855, 857 (quoting Kees v. Kees, 2008-0124,
08-0125, p. 7 (La. App. 4 Cir. 8/13/08), 992 So.2d 568, 571). “Even if an appellate
court feels its own evaluations and inferences are more reasonable than the
factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review where conflict exists in testimony.” Guste
Homes Resident Mgmt. Corp. v. Thomas, 2020-0110, p. 8 (La. App. 4 Cir.
7/29/20), 302 So.3d 1181, 1187 (quoting River Garden Apartments v. Robinson,
2012-0938, pp. 4-5 (La. App. 4 Cir. 1/23/13), 108 So.3d 352, 356).
Our review of the record shows that based on Plaintiff’s testimony and the
text message exchanges6 between her and Defendant, a reasonable factual basis
exists to support the district court’s issuance of a protection order under the
Criminal Code for assault.7 Plaintiff testified that Defendant told her he was going
to “kill her” and “show her”, which she interpreted as threats on her life, and she
did not feel safe because Defendant carries a firearm. Defendant admitted he
texted Plaintiff that he hoped she dies. Further, review of the text messages
6 The text messages were riddled with derogatory words and unflattering name-calling. While unpleasant and harsh, name calling alone does not arise to the level of domestic abuse under La. R.S. 46:2131 et seq. 7 An “[a]ssault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. In Claassen, supra, this Court reasoned that although “words alone may not be sufficient to constitute an assault, … threats coupled with the present ability to carry out the threats are sufficient when one is placed in reasonable apprehension of receiving injury.” Claassen, 2016-0610, p. 11, 207 So.3d at n. 3 (citing Castiglione v. Galpin, 325 So.2d 725, 726 (La. App. 4th Cir. 1976)).
12 reflects that Defendant told Plaintiff, “I’m going to beat the (sic) out of you[.]” In
reviewing the entirety of the evidence, we conclude the district court did not abuse
its discretion in issuing a protection order. This assignment of error is without
merit.
CONCLUSION
The district court did not abuse its discretion in authenticating and admitting
the text messages and, in turn, issuing an order of protection in favor of Plaintiff
and against Defendant. The district court’s judgment is affirmed.
AFFIRMED