Judgment rendered June 28, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,165-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ROBERT CHARLES WILLIS Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 379,171
Honorable Ramona L. Emanuel, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
REBECCA ARMAND EDWARDS SENAE DENEAL HALL NANCY F. BERGER-SCHNEIDER Assistant District Attorneys
Before STONE, COX, and MARCOTTE, JJ. STONE, J.
This criminal appeal arises from the First Judicial District Court, the
Honorable Ramona Emanuel presiding. The defendant, Robert Willis, was
charged with aggravated second degree battery and child endangerment with
respect to an incident that occurred “on or about October 15, 2020.” At the
conclusion of his jury trial, the defendant was convicted of child
endangerment and the responsive offense of aggravated battery. The
defendant now appeals his conviction. He argues that the trial court erred in
certain evidentiary rulings and that these rulings carried a substantial
possibility of affecting the outcome of the trial. For the reasons stated
herein, we affirm the defendant’s conviction.
FACTS AND PROCEDURAL HISTORY
The defendant and victim had a “strained and volatile” romantic
relationship which began roughly four years before the incident. At the time
of the incident, they resided together along with the victim’s minor child.
Both the defendant and the victim admitted at trial that they had heated
conflict on previous occasions. The victim admitted to hitting the defendant
with a remote control. The defendant denied having ever struck her before
the day in question, but gave a drastically more severe account of her prior
violence. He testified that, in November 2019, she held a knife to his throat
and threatened to cut him. The defendant also stated that she had thrown
things at him, including the lid to a clothes hamper.
Regarding the incident in this case, the victim testified that the
defendant initiated the violence when he punched her in the face three times.
She was in the process of calling her father when the defendant did this. Her
phone fell to the floor, and she managed to get the call out to her father before the defendant kicked her in the ribs, which sent her “flying” across
the room. She screamed “daddy please help me” as the defendant picked up
the phone and ended the call. The defendant stabbed a knife blade into the
victim’s jaw and told her to “bleed.” He also slashed her shoulder, arm, and
side with the blade. The defendant continued to punch, kick, and throw her
across the room. (The defendant admitted to kicking and stabbing her in his
testimony). The defendant told the victim that he intended to kill her and
then kill himself, and that he stopped beating and stabbing her when she
agreed to get herself and her daughter in the car and leave with him. He
insisted on bringing the knife wherever they went. Notably, during this
incident, the victim’s minor child was present and watching the violence.
The defendant testified that, during the argument, he tried to leave and
indicated that he was ending their relationship. He stated that, upon hearing
this, the victim took his keys, blocked his egress through the doorway, and
started throwing his clothing everywhere. At this point, the defendant
picked up a knife and told her to get out of the way; also, he called her a
“garden tool.” The defendant claims that the victim responded to this insult
with a furious attack. She hit him while he had his back to her – striking
him in the head with a boot and her fists, which made him trip and fall on
the bed. He testified that only then did he begin to strike or stab her. He
claimed that she kept attacking him even though he would “push her back
with the knife” each time – and that he did not know he had “punctured her”
when she kept coming at him and he kept slashing at her with a knife. While
in police custody, the defendant also admitted that, aside from the boot, the
victim was unarmed during the incident. Furthermore, he was completely
2 uninjured after the incident except for an alleged knot on his head – which
he apparently did not mention in his medical examination upon his arrest.
During the incident, the victim’s father, who testified at trial, called
911 as he heard her cry for help with “terror” in her voice. The first officer
responding to the call, Deputy Chris Stafford, testified that when he initially
saw the defendant, he was armed with a large butcher knife and had blood
all over his arm as he exited the home. The officer drew his weapon and
commanded the defendant to drop the knife, but the defendant instead went
back inside still holding the knife: he again went after the victim with the
knife, but she locked herself and her daughter in the bedroom. The officer
heard screaming and approached the doorway with his weapon drawn, and at
this point, the defendant complied.
The victim was taken to the hospital in an ambulance. She suffered
severe injuries, including a collapsed or punctured lung which necessitated
her being intubated. She had four knife wounds that needed stitches, as well
as bruising, and residual problems with her jaw. She testified that her jaw
and facial muscles no longer function properly because of nerve damage
from the stabbing. This causes fluids and loose-consistency food to fall out
of her mouth when she tries to eat or drink. Her chin and lip muscles spasm
and cramp, and her lip sags.
The prosecution introduced pictures of the victim’s injuries, which
confirmed her testimony.1 These pictures show wounds consistent with a
slash or stab from a knife on the victim’s jaw, shoulder, and side, and
substantial bruising on various parts of her body.
1 The pictures were taken a week after the incident. 3 The defendant made statements to Deputy Stafford after being
handcuffed and Mirandized. He admitted to striking her in the chest and that
he “swung [the knife] at her each time she hit him.” He further admitted that
the victim was unarmed. The forensic investigation revealed that the blood
on the defendant’s arm, on the knife blades, and on a T-shirt in the home
belonged to the victim. There was also blood throughout the bedroom and
bathroom – it was on the floor, the wall, the outside of the bathtub, the inside
of the bathtub, and in other places. The prosecution introduced photographs
depicting the bloody crime scene and published them to the jury.
The trial court allowed admission of the fact that the victim had been
convicted of disturbing the peace in 2013 but excluded the facts and details
underlying that (supposedly domestic violence) incident. Defense counsel
expressly consented to this limitation.
The trial court also prohibited the defendant from introducing
testimony regarding an alleged previous incident. Specifically, in his
testimony, the defendant launched into a story about how he and the victim
had an argument at the victim’s grandmother’s house; he did this without
being asked a question that called for such an answer. The prosecution
timely objected and the trial court sustained the objection. The defendant
made no contemporaneous proffer with respect to the excluded evidence;
nor can the court find a proffer elsewhere in the record. Likewise, he does
not mention any such proffer in his brief to this court.
However, the defendant admitted that he was convicted of aggravated
assault in 1994, and was convicted of violation of a protective order in 2003.
Additionally, he admitted that in 2010 he was convicted of domestic abuse
battery against his then girlfriend; his lawyer did not object until after he 4 answered the question.2 In the argument regarding the objection, defense
counsel contended that the prosecution should not be allowed to elicit details
regarding the underlying facts of the 2010 conviction. The trial court denied
this objection, and defense counsel did not ask for a cautionary or limiting
instruction. Thereafter, the defendant further testified that, in connection
with that incident, his then girlfriend accused him of striking her in the face
and head and throwing a knife at her; he expressly admitted that the knife
left a four-inch cut on her, and expressly declined to deny that he struck her
in the face.
The defendant now makes the following assignments of error: (1) the
trial court erred in excluding evidence of the victim’s prior alleged
commission of domestic violence against the defendant (at her
grandmother’s house); (2) the trial court erred in excluding her alleged
commission of domestic violence against a previous boyfriend in connection
with her 2013 disturbing the peace conviction; and (3) the trial court erred in
admitting evidence of the details of defendant’s 2010 conviction for
domestic abuse battery.
DISCUSSION
Substantive law
“Battery… [includes]… the intentional use of force or violence upon
the person of another.” La. R.S. 14:33. The charged offense, aggravated
second degree battery, is defined as “a battery committed with a dangerous
2 The defendant, in his brief, alleges that the prior domestic abuse battery conviction occurred in 2010; the prosecution’s brief agrees with that date. However, the parts of the trial transcript the parties cite reflect that the defendant testified that this same instance of domestic abuse battery occurred in 2010 and in 2018, which is obviously impossible. Because the appellate briefs agree that the conviction occurred in 2010, the court will use that date as the date of the prior conviction for the remainder of this opinion. 5 weapon when the offender intentionally inflicts serious bodily injury,” and
carries a possible sentence of up to 15 years with or without hard labor. La.
R.S. 14:34.7. Aggravated battery, which carries a 10 year maximum
sentence, is a lesser included offense with respect to aggravated second
degree battery. Aggravated battery is “a battery committed with a dangerous
weapon.” La. R.S. 14:34. Unlike aggravated second degree battery,
intentional infliction of serious bodily injury is not an essential element of
aggravated battery.
All types of battery are subject to the legal defense of “justification,”
which includes self-defense by the defendant. La. R.S. 14:18; La. R.S.
14:19. In nonhomicide cases, La. R.S. 14:19(A)(1)(a) provides that the use
of force or violence upon another person is justifiable …“[w]hen committed
for the purpose of preventing a forcible offense against the person …
provided that the force or violence used must be reasonable and apparently
necessary to prevent such offense.” (Emphasis added). In a nonhomicide
case, the defendant bears the burden of proving by a preponderance of the
evidence that he acted in self-defense. State v. Barron, 51,491 (La. App. 2
Cir. 8/9/17), 243 So. 3d 1178, writ denied, 17-1529 (La. 6/1/18), 243 So. 3d
1063.
Preservation of right to appeal evidentiary ruling
Evidentiary rulings are subject to review for abuse of discretion. State
v. Perez-Espinosa, 23-00111 (La. 1/28/23), 354 So. 3d 644, 645. However,
a party must take certain steps to avoid waiver of the right to appeal an
evidentiary ruling. To that end, La. C. Cr. P. art. 841(A), in relevant part,
states:
6 An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence…It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
This is known as the “contemporaneous objection rule.”
Furthermore, in pertinent part, La. C.E. art. 103 provides:
A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or (2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
If the trial court rules evidence inadmissible, the proponent must make
known to the court the substance of the excluded evidence in order to
preserve the issue for appellate review. State v. Magee, 11-0574 (La.
9/28/12), 103 So.3d 285, 326. Otherwise, the proponent’s right to argue the
matter on appeal is waived. The issue can be preserved for appeal by proffer
(or “offer of proof”) either in the form of a complete record of the excluded
evidence or a statement of what the proponent believes the excluded
evidence would have established. Id. The purpose of a proffer “is to create
a record of the excluded evidence so that the reviewing court will know what
the evidence was and will thus be able to determine if the exclusion was
improper, and if so, whether the improper exclusion constituted reversible
error.” Id. at 327.
In this case, the defendant waived his right to appeal the trial court’s
exclusion of his testimony regarding the alleged argument he had with the 7 victim at her grandmother’s house. The defendant’s brief makes no mention
of making a proffer of this testimony. The record clearly shows that the
defense did not make a proffer contemporaneously with the ruling excluding
this evidence, and the court finds no proffer elsewhere in the record.
Therefore, there is nothing we can review. Accordingly, the defendant
waived this assignment of error.
The defendant likewise waived his right to appeal the trial court’s
exclusion of the details of the victim’s 2013 conviction for disturbing the
peace. Indeed, defense counsel expressly consented to that ruling, thus
failing to satisfy the requirements for preserving the issue pursuant to La.
C.E. art. 103 and the contemporaneous objection rule.
However, the defense made a proper contemporaneous objection to
the admission of the details defendant’s prior conviction for domestic abuse
battery (but did not object to the admission of the fact, name, and date of the
conviction). As grounds for the objection, the defense argued pursuant to
La. C.E. art. 403 that risk of unfair prejudice against the defendant
substantially outweighed the probative value of this evidence.
Thus, our review of the propriety of the trial court’s evidentiary
rulings is limited to whether the trial court abused its discretion in admitting
the details of the defendant’s prior conviction for domestic abuse battery.
Propriety of admission of details of defendant’s prior conviction
“Relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” La. C.E. art. 401. The extrinsic (non-evidentiary) law governing
the case determines which facts are of consequence; namely, those are 8 sections 18, 19, 33, 34, and 34.7 of Title 14 of the Louisiana Revised
Statutes.
La. C.E. art. 403 establishes the following balance test:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. (Emphasis added).
“As used in the balancing test, … [t]he term ‘unfair prejudice,’ as to a
criminal defendant, speaks to the capacity of some concededly relevant
evidence to lure the fact-finder into declaring guilt on a ground different
from proof specific to the offense charged.” State v. Ard, 20-221 (La. App.
5 Cir. 4/28/21), 347 So. 3d 1046, 1057.
La. C.E. art. 404(B)(1) generally bars admission of propensity
evidence (i.e., evidence of a person’s prior actions to circumstantially prove
that the person acted in conformity with the prior actions on a particular
occasion). It states:
Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.3 …
3 The Louisiana Supreme Court, in State v. Altenberger, 13-2518 (La. 4/11/14), 139 So.2d 510, held that a prior crime’s mere “temporal remoteness” cannot defeat its admissibility under article 404(B). 9 For domestic violence cases, article 412.44 carves out an exception to
the general rule excluding propensity evidence:5
A. When an accused is charged with a crime involving abusive behavior against…a household member…or dating partner or with acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving assaultive behavior against a …household member…or dating partner…may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403. … D. For purposes of this Article: (1) “Abusive behavior” means any behavior of the offender involving the use…of force against the person…of a …household member, or dating partner of the alleged offender. (Emphasis added).6
In State v. Simmons, 21-0547 (La. App. 4 Cir. 11/24/21), 332 So. 3d
158, 161–62, writ denied, 22-00112 (La. 3/15/22), 334 So. 3d 397, the
Fourth Circuit held that the trial court abused its discretion in excluding
4 This provision was originally enacted in 2016. In 2017, “dating partner[s]” were added to the list of victims with respect to whom the article would apply. In State v. Ard, supra, the Fifth Circuit, due to the newness of article 412.4, looked to jurisprudence applying article 412.2 (which allows the accused’s prior acts showing a lustful disposition toward children to be admitted for any relevant purpose in a sex offense case) for guidance in applying article 412.4. 5 Jones v. State, 22-269 (La. App. 5 Cir. 7/6/22), 346 So. 3d 339, 345. 6 Article 412.4 defines “household member and “dating partner” as follows: “Dating partner” means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. “Dating partner” shall not include a casual relationship or ordinary association between persons in a business or social context. “Household member” means any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides. 10 article 412.4 evidence based on the temporal remoteness of those prior acts
(and a factually incorrect belief regarding the content of that evidence).7
In August of 2019, Simmons, the defendant, was charged with
stalking, second degree murder using a firearm, possession of a firearm by a
convicted felon, and obstruction of justice.8 The victim was Simmons’ prior
girlfriend (“victim”). The prosecution alleged that after the termination of
their romantic relationship, the defendant began stalking the victim; this
escalated to threats of physical violence, then actual violence, and ultimately
murder (using a firearm). The prior act evidence sought to be introduced was
described as follows:
[F]rom December 21, 2011 to January 15, 2012, the defendant also engaged in stalking of a previous former dating partner, [Previous Girlfriend]. Again, the stalking escalated to threats of physical violence, then actual violence, and ultimately, battery through the use of a deadly weapon. Fortunately, [Previous Girlfriend] survived her encounter with the defendant. See attached Las Vegas, Nevada Police reports and Indictment.
Id. at 160. (The article 412.4 evidence involved a different victim).
The Fourth Circuit found that the trial court abused its discretion in
excluding the article 412.4 evidence. Citing State v. Altenberger, supra at
n.3, the Simmons court explained:
Although the prior crime occurred numerous years before the incident at issue herein, a lapse in time will generally go to the weight of the evidence, rather than to its admissibility.
7 In conducting the article 403 balance test, the district court held that “the danger of unfair prejudice substantially outweighs the probative value of the evidence at issue” because “[the] prior domestic violence incident occurred a decade prior to the present case and involved a different victim” and “apart from the mere fact that a [prior] domestic violence incident occurred, there is no pattern of stalking or any other pattern of substantial similarity between the prior incident and the present case.” 8 The Simmons opinion does not provide the date of the alleged offense. 11 In this case, the admission of the details of the defendant’s prior
conviction was not an abuse of discretion. Those details bear a striking (or
stabbing) similarity to the facts sub judice. Both incidents involved the
defendant battering his girlfriend-victim with his fists and cutting his
girlfriend-victim with a knife. Indeed, in his trial testimony, the defendant
was confronted with the facts underlying this prior conviction, and he did
not deny that he punched the victim in the prior incident in the face.
Furthermore, he expressly admitted to cutting her with a knife. Thus, the
details of the prior offense had great probative value in demonstrating the
defendant’s propensity for beating and knifing his girlfriends, and admission
for this purpose is authorized under article 412.4. The prior conviction’s
details were also highly probative for impeaching the defendant’s testimony
that he was acting in self-defense. The trial court did not abuse its discretion
in holding that the danger of unfair prejudice did not substantially outweigh
the probative value of the details of the prior conviction.
Harmless error review
On appeal, improper admission of other crimes evidence is subject to
harmless error review; that is, whether the verdict actually rendered in the
case was surely unattributable to the error. State v. Johnson, 94-1379 (La.
11/27/95), 664 So.2d 94; State v. Ard, supra. Likewise, the erroneous
exclusion of evidence is subject to harmless error review. “Under that test,
the question is whether there is a reasonable possibility that the admission or
exclusion of certain evidence ‘might have contributed to the conviction.’
Furthermore, the error must be ‘harmless beyond a reasonable doubt.’”
State v. Young, 20-01041 (La. 5/13/21), 320 So. 3d 356, 361.
12 In this case, the defendant indisputably inflicted multiple knife
wounds on the victim, and admitted to kicking her: these are “acts of force
or violence” on the victim. A butcher knife is obviously a “dangerous
weapon.” The victim’s injuries were serious – they included a collapsed
lung from where he struck her in the chest and several knife wounds. Her
injuries also included substantial bruising on various parts of her body. No
reasonable juror could conclude that the defendant did not commit
In recognition of that reality, the defendant instead argues that he
acted in justifiable self-defense pursuant to La. R.S. 14:19(A)(1)(a).
However, the defendant admitted that the victim was unarmed except for the
boot she allegedly used to strike him. Also, he was found to be completely
unharmed immediately after the incident; he apparently did not mention the
alleged knot on his head to the medical examiner. With these facts, no
reasonable juror could conclude that the defendant proved by a
preponderance of the evidence that the force or violence used upon the
victim was reasonable and apparently necessary. Simply put, even if his
girlfriend did attack him with a boot and her fists, the defendant – a grown
man – had absolutely no need to crush the victim’s lung, stab her multiple
times, and punch her in the face and kick her. The photographs of the
victim’s injuries, which were introduced as exhibits, thoroughly demonstrate
that the force he used was grossly excessive and unnecessary in relation to
any justification he may have had from the female victim’s alleged attack
with a boot.
Finally, even if the details of the defendant’s prior domestic abuse
battery had not been admitted into evidence, the defendant’s self-serving 13 testimony (which was his sole basis for his self-defense claim) would still
have been entirely devoid of credibility. He claimed that the victim – a
female who was unarmed or armed only with a boot – was the aggressor
who repeatedly attacked him even after he “punctured” her with the knife.
He described in his testimony how he would “push her back with the knife”
each time that she lunged in for an attack on him. This testimony by the
defendant is totally unbelievable. If it were true, then the victim necessarily
would have continued to make these attacks even as he inflicted at least four
serious knife wounds on her. The victim would have not done this unless
she was irrational to the point of suicidality. Her phone call wherein she
screamed “daddy please help me” with “terror” in her voice is solid proof
that she was nowhere close to being irrational to the point of suicidality –
and thus was not making unarmed/nearly unarmed attacks on a man who
was slashing and stabbing her with a knife.
Even if the defendant’s narrative of the event were accepted as true, it
still would not establish justified self-defense. Furthermore, the defendant’s
narrative of the event is utterly without credibility—regardless of whether or
not the details of his prior domestic abuse battery conviction were admitted.
Thus, even if all three of the evidentiary rulings of which the defendant
complains are assumed arguendo to be erroneous, they were nonetheless
harmless.
CONCLUSION
The defendant’s convictions and sentences for aggravated battery and
child endangerment are AFFIRMED.