STATE OF LOUISIANA NO. 22-K-581
VERSUS FIFTH CIRCUIT
CODY BREAUX COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 22-2923, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
May 10, 2023
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and John J. Molaison, Jr.
REVERSED; REMANDED SJW JGG JJM COUNSEL FOR PLAINTIFF/RELATOR, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Darren A. Allemand
COUNSEL FOR DEFENDANT/RESPONDENT, CODY BREAUX A. Bruce Netterville WINDHORST, J.
The State of Louisiana seeks review of the trial court’s November 28, 2022
ruling denying the State’s “Notice of Intent to Introduce Evidence under La. C.E.
art. 412.4 or in the Alternative 404 B” (collectively, “the State’s motion”).1 For the
following reasons, we reverse the trial court’s ruling denying the State’s motion to
introduce evidence pursuant to La. C.E. arts. 412.4 and 404 B, grant the State’s
motion, and remand for further proceedings.
PROCEDURAL HISTORY and FACTS
On July 2, 2022, the Jefferson Parish Sheriff’s Office (“JPSO”) responded to
a disturbance at 804 Lander Street in Bridge City. Upon arrival, defendant, Cody
Breaux, informed the officers that he and his fiancé, the victim, had an argument and
he wanted her removed from his residence. The officers met with the victim and
immediately noticed black markings on her face. The victim told the officers that
she was attempting to gather her belongings to leave the residence and called her
father for assistance. She informed the officers that defendant became irate and
threw her belongings across the residence. As she was walking down the hallway
with her 18-month-old son in her arms, defendant grabbed her by the neck and
squeezed causing her to have difficulty breathing. She stated that her father called
the police. Defendant then pushed her to the ground and released his grasp on her
neck. The victim voluntarily provided the officers with a written statement of the
incident and informed them that she wanted to press charges against defendant.
Based on this information, the officers arrested defendant.
On August 5, 2022, the Jefferson Parish District Attorney’s Office filed a bill
of information charging defendant with domestic abuse battery by strangulation in
1 The State filed a “Notice of Intent to Introduce Evidence under La. C.E. art. 412.4 or in the Alternative 404 B,” which was set for hearing upon defendant’s filing of an opposition to “the State’s Motion.” The minute entry of the 11/28/2022 hearing refers the matter before the court as the State’s 404B Motion. For consistency, we will likewise refer to the matter upon which the trial court ruled as “the State’s motion.”
22-K-581 1 violation of La. R.S. 14:35.3 L (count one), and domestic abuse battery, in the
presence of a child under thirteen in violation of La. R.S. 14:35 I (count two).
Defendant pled not guilty at his arraignment.
On October 25, 2022, the State filed a notice of intent seeking to introduce a
prior domestic abuse incident as evidence under La. C.E. art. 412.4 or alternatively,
under La. C.E. art. 404 B. According to the notice of intent, on March 22, 2020, the
JPSO responded to a domestic disturbance at 804 Lander Street in Bridge City
involving defendant and the same victim in this case. In the prior incident, the
victim’s mother reported to officers that she was assisting the victim, who was
attempting to gather her belongings and leave the residence, when an argument
occurred between defendant and the victim. Defendant became angry and violent
and he poured radiator fluid on the victim and threw a can of beer at her. While
officers were interviewing the victim’s mother, defendant walked outside and
screamed “profanity laced insults” at the victim’s mother and the officers. The
officers attempted to calm defendant, who was causing visible “public alarm.” The
officers spoke with the victim, who was visibly upset and appeared scared. The
victim relayed to officers details regarding the incident and the officers observed that
the victim’s shirt was wet and discolored at the bottom. The officers took
photographs of the victim. The victim refused medical treatment and advised that
she did not want to pursue charges against defendant. Due to the victim’s emotional
state and her scared appearance, the officers arrested defendant.
In the notice of intent, the State asserted that the March 22, 2020 incident is
relevant under La. C.E. art. 412.4 to show defendant’s domestic violence, in
particular, defendant’s violence toward the same dating partner/household member,
his live-in fiancé, the victim. The State contended that the prior incident shows
defendant’s specific intent to use force or violence on his dating partner/household
member at the slightest irritation and that he uses his dating partner “as a medium
22-K-581 2 for his escalating anger.” The State also averred that the prior incident is admissible
under La. C.E. art. 404 B. The State asserted that the prior incident shows
defendant’s intent to harm his dating partner “at any mere altercation.” The State
contended that defendant has a “modus operandi of violently beating” or assaulting
the victim “at his every frustration” and there “is a pattern that is free of mistake or
accident as to how the defendant viciously treats this dating partner during minor
arguments.” In support of its notice, the State attached the police reports from the
current charge and the prior incident on March 22, 2020.
In opposition, defendant filed a memorandum in support of dismissing the
State’s motion. Defendant asserted that the March 22, 2020 incident was a “false
charge.” He stated that he was falsely arrested and that the State refused the charge.
Defendant also argued that an unauthenticated police report is not sufficient
evidence at trial and the March 22, 2020 incident should not be admissible. In
support of his opposition, defendant attached an affidavit from the victim stating that
the March 22, 2020 report was false regarding an alleged battery on her.
On November 28, 2022, during the evidentiary hearing, the State asserted that
its burden for admitting evidence at this hearing versus admitting evidence at trial is
very different. The State emphasized that it had “zero intentions of just offering a
police report at trial; that’s not what the State intends to do,” however, for the
purpose of the article 412.4 and/or article 404 B hearing, its burden was met by
submitting the police report. The State contended that even though it ultimately
refused the charge against defendant, the prior incident is still admissible under the
law. The State further argued that the victim’s affidavit recanting her statement goes
to the weight of the evidence, not the admissibility of the evidence.
The trial court questioned the State as to whether the conflicting evidence or
versions of events (i.e., her initial statement in police report versus her affidavit
recanting) should go to the trier of fact and why the State did not ultimately prosecute
22-K-581 3 defendant if it “felt so strongly that what she put in this affidavit was false versus
what she told police.” The State informed the trial court that the facts and evidence
in this case are similar to the facts and evidence in the prior incident. The State
averred that “victims don’t make the best choices ultimately to protect themselves”
and that the State was attempting to protect the victim in this case. The State asserted
that it was up to the trier of fact to weigh the evidence as to the victim’s initial report
and her recantation, and that for the purpose of this motion, the State had met its
burden. At the conclusion of the hearing, the trial court denied without reasons the
State’s motion, noting the State’s objection. The State filed the instant writ
application.
DISCUSSION
In this writ application, the State contends that the trial court erred in denying
its motion to introduce evidence of the March 22, 2020 incident. The State asserts
that the March 22, 2020 incident is admissible under La. C.E. art. 412.4 and La. C.E.
art. 404 B. The State contends that the victim’s recantation of the prior incident and
the State’s refusal to charge defendant are irrelevant, and under the law, neither
circumstance precludes the use of the March 22, 2020 incident.
The State asserts that in the instant case, defendant is accused of battering his
live-in fiancé during an argument in which she was gathering her belongings to leave
the residence, while her father was present. The State submitted evidence that
defendant previously battered/assaulted the same victim on March 22, 2020 during
an argument in which the victim was gathering her belongings to leave the residence,
while her mother was present. The State argues that “other crimes” evidence has
been found to be admissible where the defendant was never charged, prosecuted, or
convicted, and even in cases where the defendant was acquitted. The State also
contends that the victim’s affidavit recanting the prior alleged domestic abuse
incident goes to the weight of the evidence, not its admissibility. The State avers
22-K-581 4 that the March 22, 2020 police report reflects that the victim and her mother
informed the officers about the domestic abuse and the victim’s recantation is a
question of credibility for the trier of fact.
The State asserts that La. C.E. art. 412.4 allows the admission of this prior
abusive/assaultive behavior by defendant against the same victim. The State
contends that pursuant to Jones v. State, 22-269 (La. App. 5 Cir. 07/06/22), 346
So.3d 339, 345, this prior bad act of domestic abuse is admissible under La. C.E. art.
412.4 for “any relevant purpose, including the defendant’s character and his acts in
conformity therewith, subject only to the balancing test established by La. C.E. art.
403” and the “admissibility of evidence under this article is not limited to those
actions that are identical or even similar in nature to the charged crime.” The State
argues that it is seeking to admit evidence of a prior domestic abuse committed by
defendant against the same victim under the same circumstances (i.e., the victim
attempting to gather her belongings to leave the residence, triggering defendant’s
“rage.”) and therefore, the evidence is clearly admissible under La. C.E. art. 412.4.2
The State contends that although this court does not need to reach this issue, the
March 22, 2020 incident is also admissible under La. C.E. art. 404 B. The prior incident
is admissible to show defendant’s intent to harm his dating partner or household
member, modus operandi and pattern, and to show absence of mistake or accident.
In opposition, defendant contends that the trial court did not err in denying the
State’s motion to introduce defendant’s “prior unadjudicated, false accusation of
domestic violence that allegedly occurred on March 22, 2020.” Defendant claims
that the trial court did not abuse its discretion in denying the State’s request to
introduce an unauthenticated police report with no corroborating evidence to prove
2 In its brief, the State asserts that despite defense counsel’s assertions to the contrary, it does
not seek to introduce the police report as evidence at trial, and that this was clearly stated at the hearing. The State also acknowledges that at trial it is bound by the Louisiana Code of Evidence, as is the trial court.
22-K-581 5 that defendant is of bad character and acted in conformity with the current charges
against him. Specifically, defendant argues that the State has not shown any prior
conviction or an incident that the State as proven an independent and relevant reason
for its admissibility. Defendant contends that the police report is discredited and
proven false by the victim’s affidavit, wherein she recanted that the March 22, 2020
incident occurred and therefore, the State did not provide sufficient evidence to show
the prior act occurred. Defendant avers that “[e]ven though a police report is
sufficient for a Priur [sic] hearing it does not make it sufficient for trial purposes.”
Consequently, defendant argues that after reviewing the police report and the
victim’s affidavit, the trial court correctly decided not to permit the prior incident
into evidence.
Law and Analysis
In this review, we address only whether evidence of a past crime, wrong, or
act, alleged to have occurred on March 22, 2020 and which is the subject of the
police report introduced at the hearing, may be admitted into evidence at trial under
the provisions of La. C.E. arts. 412.4 or 404 B, provided that competent and
otherwise admissible evidence of the alleged incident is offered by the State.
A trial court’s ruling on the admissibility of evidence is reviewed for an abuse
of discretion. State v. Ard, 20-221 (La. App. 5 Cir. 04/28/21), 347 So.3d 1046; State
v. Kiger, 13-69 (La. App. 5 Cir. 10/30/13), 128 So.3d 552, 557. The fundamental
rule in Louisiana governing the use of other crimes, wrongs, or acts is that such
evidence is not admissible to prove that the accused committed the charged crime
because the defendant committed other such crimes in the past. State v. Williams,
09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 363, writ denied, 09-2565 (La.
05/07/10), 34 So.3d 860; see also, La. C.E. art. 404 B(1). Evidence of other crimes,
wrongs or acts committed by a defendant is generally not admissible because of the
22-K-581 6 “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d
126, 128 (La. 1973).
Although the State may not admit evidence of other crimes to prove defendant
is a person of bad character, evidence of prior crimes may be admitted pursuant to
specific statutory and jurisprudential exceptions to the exclusionary rule when it
tends to prove a material issue and has independent relevance. La. C.E. art. 404
B(1); State v. Evans, 19-237 (La. App. 5 Cir. 06/03/20), 298 So.3d 394, 401-402;
State v. Brown, 17-348 (La. App. 5 Cir. 12/20/17), 235 So.3d 1314, 1322, writ
denied, 18-158 (La. 11/05/18), 256 So.3d 276, cert. denied, — U.S. —, 139 S.Ct.
2033, 204 L.Ed.2d 233 (2019); State v. Joseph, 16-349 (La. App. 5 Cir. 12/14/16),
208 So.3d 1036, 1046, writ denied, 17-77 (La. 04/07/17), 218 So.3d 109 (Under La.
C.E. art. 404 B, evidence of other crimes, wrongs or acts is allowed to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or when it relates to conduct, formerly referred to as res gestae, that
constitutes an integral part of the act or transaction that is the subject of the present
proceeding.)
La. C.E. art. 412.43 is such an exception and it provides in pertinent part:
A. When an accused is charged with a crime involving abusive behavior against a family member, 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 family member, household member, or dating partner or acts which constitute cruelty involving a victim who was under the age of seventeen at the time of the offense, 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.
3 La. C.E. art. 412.4 was enacted by 2016 La. Acts 399, §1, and amended to encompass abusive behavior against dating partners by 2017 La. Acts 84, §4, effective on August 1, 2017. The article was amended again by Acts 2020, No. 101, §3. Prior to the enactment of this article, courts upheld the admissibility of domestic abuse evidence under La. C.E. art. 404 B. See State v. Marshall, 13-233 (La. App. 5 Cir. 10/30/13), 128 So.3d 1156; State v. Granger, 12-193 (La. App. 5 Cir. 10/30/12), 103 So.3d 576, writ denied, 12-2587 (La. 04/26/13), 112 So.3d 840; State v. Adams, 11-980 (La. App. 5 Cir. 04/24/12), 89 So.3d 435, writ denied, 12-1629 (La. 04/19/13), 111 So.3d 1027; State v. Cotton, 07-782 (La. App. 5 Cir. 02/19/08), 980 So.2d 34, 44, writ denied, 08-603 (La. 10/03/08), 992 So.2d 1010; State v. Rose, 06-402 (La. 02/22/07), 949 So.2d 1236; State v. Welch, 615 So.2d 300 (La. 1993).
22-K-581 7 B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes. * * * D. For purposes of this Article: (1) “Abusive behavior” means any behavior of the offender involving the use or threatened use of force against the person or property of a family member, household member, or dating partner of the alleged offender. (2) “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. * * * (4) “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.
Under La. C.E. art. 412.4, evidence of prior domestic abuse is allowed in cases
that involve abusive behavior against a dating partner or household member. The
admissibility of evidence under this article is not limited to those actions that are
identical or similar in nature to the charged crime. Ard, 347 So.3d at 1056-1057;
State v. Thomas, 19-582 (La. App. 5 Cir. 07/29/20), 300 So.3d 517, 527, writ denied,
20-1503 (La. 03/02/21), 311 So.3d 1053; State v. Gatson, 21-156, 21-157 (La. App.
5 Cir. 12/29/21), 334 So.3d 1021, 1038. In Jones, supra, this court held that when a
defendant is charged with a crime involving domestic abusive behavior, as
statutorily defined, La. C.E. art. 412.4 authorizes the admission of evidence of a
defendant’s prior acts of domestic abusive behavior, as statutorily defined, against
any other domestic abuse victim, as defined in La. C.E. art. 412.4. Jones, 346 So.3d
at 348. Under La. C.E. art. 412.4, evidence of prior acts of domestic abuse is
22-K-581 8 admissible if relevant and the probative value outweighs the prejudicial effect. Ard,
347 So.3d at 1056; Thomas, 300 So.3d at 527; La. C.E. arts. 412.4, 401, and 403.
La. C.E. art. 401 provides that evidence is relevant if it has “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.” In
deciding the issue of relevancy, the trial court must determine whether the evidence
bears a rational connection to the facts at issue in the case. Thomas, 300 So.3d at
527. Under La. C.E. art. 403, evidence may be excluded, even if relevant, “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.”
However, any inculpatory evidence is “prejudicial” to a defendant, especially
when it is “probative” to a high degree. State v. Rodgers, 16-14 (La. App. 5 Cir.
10/26/16), 202 So.3d 1189, 1201, writs denied, 16-2189 (La. 9/15/17), 225 So.3d
479 and 16-2093 (La. 1/29/18), 235 So.3d 1104. Prejudice limits the introduction
of probative evidence of prior misconduct only when it is unduly and unfairly
prejudicial. Id.; Thomas, 300 So.3d at 527-28. The 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. Smith, 19-607, p. 2 (La. App. 5 Cir. 1/21/20),
2020WL356010, writ denied, 20-328 (La. 5/1/20), 295 So.3d 945. Remoteness in
time, in most cases, is only one factor to be considered when determining whether
the probative value of the evidence outweighs its prejudicial effect. Generally, a
lapse in time will go to the weight of the evidence, rather than to its admissibility.
Evans, 298 So.3d at 403.
22-K-581 9 While La. C.E. art. 404 B requires the State to provide the defendant with
notice and a hearing before trial if it intends to offer such evidence,4 there is nothing
in the language of La. C.E. art. 412.4 that requires a pretrial hearing. State v. Tate,
20-523 p. 9 (La. App. 1 Cir. 04/16/21), 2021WL1478325 (unpublished opinion) (not
designated for publication), writ denied, 21-690 (La. 09/27/21), 324 So.3d 92.
Regarding notice, La. C.E. art. 412.4 B uses identical notice language provided in
La. C.E. art. 412.2 B, which allows other crimes evidence in sex offense cases. Id.
The notice language in both articles provides: “In a case in which the state intends
to offer evidence under the provisions of this Article, the prosecution shall, upon
request of the accused, provide reasonable notice in advance of trial of the nature of
any such evidence it intends to introduce at trial for such purposes.” Id.; La. C.E.
arts. 412.2 and 412.4.
In State v. Wright, 11-141 (La. 12/06/11), 79 So.3d 309, 317, the Louisiana
Supreme Court remarked that La. C.E. art. 412.2 was enacted to “loosen restrictions
on ‘other crimes’ evidence.” Therefore, the Supreme Court held that pursuant to La.
C.E. art. 412.2, evidence of a prior sexual offense indicating that the defendant has
a lustful disposition toward children is admissible if relevant and if the probative
value outweighs the prejudicial effect. Id. Considering the similarity between La.
C.E. arts. 412.2 and 412.4, this court in Thomas, supra, held that evidence of prior
acts of domestic abuse is admissible under La. C.E. art. 412.4, if relevant and the
probative value outweighs the prejudicial effect. Thomas, 300 So.3d at 527.
In order to satisfy La. C.E. art. 404 B for introduction of other crimes, wrongs
and acts evidence, the State is only required to make some showing of sufficient
evidence to support a finding that the defendant committed the other independently
relevant acts. State v. Taylor, 16-1124, 16-1183 (La. 12/01/16), 217 So.3d 283, 291-
4 See La. C.E. art. 404 B; Gatson, 334 So.3d at 1037.
22-K-581 10 292. Although testimony is not required, it may be necessary depending on the facts
of a particular case. Id. at 292. However, at other times the submission of
documents, such as a police report or conviction, and a summation of the other crime,
wrong, or act will suffice. Id. Sufficiency of the State’s evidence must be
determined on a case by case basis. Id. In Taylor, the Louisiana Supreme Court
stated that the evidentiary rules in pre-trial admissibility determinations are relaxed,
and therefore an unauthenticated police report could be sufficient to meet the State’s
burden. Id. at 294. However, the State is nonetheless mandated to adhere to the
rules of evidence when presenting the other crimes evidence at trial. Id. Should the
State not properly present otherwise competent evidence at trial, the trial court may
exclude the other crimes evidence at that time.
Under La. C.E. arts. 404 B, 412.2, and/or 412.4, it is not necessary for the
defendant to have been charged, prosecuted, or convicted of the described “other
acts.” See Ard, supra; Thomas, supra; State v. Porter, 19-221 (La. App. 3 Cir.
08/14/19), 279 So.3d 1010, 1021; Wright, supra; Gatson, supra; Evans, supra; State
v. Layton, 14-1910 (La. 03/17/15), 168 So.3d 358, 362; State v. Harris, 11-253 (La.
App. 5 Cir. 12/28/11), 83 So.3d 269, 280, writ denied, 12-401 (La. 08/22/12), 97
So.3d 376; State v. Simmons, 21-547 (La. App. 4 Cir. 11/24/21), 332 So.3d 158,
writ denied, 22-112 (La. 03/15/22), 334 So.3d 397. La. C.E. art. 412.4 is intended
to be an exception to La. C.E. art. 404 B(1), which limits the use of other crimes
evidence to non-propensity purposes and specifically prohibits evidence that tends
to show the defendant’s criminal propensity. Simmons, 332 So.3d at 161, citing
Louisiana Practice Evidence Art. 412.4, Evidence of Similar Crimes, Wrongs, or
Acts in Domestic Abuse Cases and Cruelty Against Juveniles Cases (2021 ed.). La.
C.E. art. 412.4 permits the admission of other incidents of domestic abuse for any
relevant purpose including the defendant’s character and his acts in conformity
therewith, subject only to the balancing test established by La. C.E. art. 403.
22-K-581 11 [Emphasis added.] Simmons, 332 So.3d at 162; Jones, 346 So.3d at 345; Porter, 279
So.3d at 1021.
Acts of domestic violence are often intended to dissuade a victim from seeking
outside help, and include conduct designed to prevent testimony to police officers or
cooperation in criminal prosecutions. Giles v. California, 554 U.S. 353, 377, 128
S.Ct. 2678, 171 L.Ed.2d 488 (2008). Appellate courts have affirmed convictions for
child sexual abuse and domestic violence involving disclosures of abuse followed
by a trial recantation based on the jury’s decisions to believe the disclosures of abuse
and discredit the victim’s recantations, finding the jury’s verdict to be rational based
on the surrounding circumstances and sufficient to find the defendant guilty of the
abuse beyond a reasonable doubt. State v. D.D., 18-891 (La. App. 4 Cir. 12/27/19),
288 So.3d 808, 834-835, writ denied, 20-158 (La. 05/26/20), 296 So.3d 1063; See
e.g., State v. Rankin, 42,412 (La. App. 2 Cir. 09/19/17), 965 So.2d 946, writ denied,
07-2067 (La. 03/07/08), 977 So.2d 897; State v. Jones, 48,624 (La. App. 2 Cir.
01/22/14), 132 So.3d 505; State v. Updite, 47,007 (La. App. 2 Cir. 02/29/12), 87
So.3d 257; State v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13), 128 So.3d 515, writ
denied, 13-2793 (La. 05/16/14), 139 So.3d 1024.
Domestic violence cases are “notoriously susceptible to intimidation or
coercion of the victim to ensure that she does not testify at trial.” Davis v.
Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Recantations
in domestic cases have been found to be highly suspicious. See D.D., 288 So.3d at
836; State v. McClain, 04-98 (La. App. 5 Cir. 06/29/04), 877 So.2d 1135, 1142-
1143. A victim’s recantation at trial requires a credibility determination. D.D., 288
So.3d at 835.
In this case, the other crimes evidence the State seeks to admit involves a
factually similar incident between defendant and the victim in the instant case. The
defendant is charged in the instant case with battering his live-in fiancé during an
22-K-581 12 argument in which she was gathering her belongings to leave the residence, while
her father was present. The prior March 22, 2020 incident involves an incident
wherein defendant was accused of battering/assaulting his fiancé, the same victim,
during an argument in which she was also gathering her belongings to leave the
residence, while her mother was present.
Based on the facts and evidence submitted, we find the trial court abused its
discretion in denying the admissibility of the March 22, 2020 incident. Recantation
by the victim of her prior statement to the police that the March 22, 2020 incident
occurred, and/or that the State did not file charges against defendant for the incident,
do not alone make evidence of the prior incident inadmissible. We find the March
22, 2020 incident places the current charged offense in its proper context and is
independently relevant, not to prove defendant’s bad character, but instead to
illustrate to the jury the volatile nature of the relationship between defendant and the
victim. The evidence is highly probative to establish defendant’s aggressive
propensities toward the victim during arguments, especially when the victim is
attempting to gather her belongings to leave the residence, even in the presence of
her parents. Without this background evidence, the defendant’s conduct as charged
in the current offense may appear to the jury to be an isolated act not attributable to
his pattern of aggression towards the victim.
After carefully reviewing the facts and evidence subject to La. C.E. art. 412.4
and La. C.E. art. 403, we find the probative value of the prior incident outweighs
any danger of unfair prejudice to defendant and therefore, the prior March 22, 2020
incident is admissible under La. C.E. art. 412.4.5 We emphasize that while the rules
of evidence are relaxed in a pre-trial hearing to determine what evidence may be
offered at trial, such as in this case, the State will be required to satisfy all other rules
5 Here, based on the State’s arguments at the hearing, it appears that the State intends to call the victim or another witness at trial to testify regarding the incident and that it does not intend to attempt to introduce the police report itself at trial. See State v. Joekel, 19-1735 (La. 01/08/20), 286 So.3d 423, 424 (per curiam).
22-K-581 13 of evidence when presenting the evidence at trial. If the State fails to properly
present competent evidence of the March 22, 2020 incident at trial, the trial court
may exclude the other crimes, wrongs, or acts evidence at that time. Accordingly,
we find that the trial court abused its discretion in ordering exclusion of evidence of
the March 22, 2020 incident, pursuant to La. C.E. art. 412.4.6
DECREE
For the reasons stated herein, we reverse the trial court’s ruling which
excluded evidence of the prior March 22, 2020 incident; we grant the State’s motion
to introduce competent and otherwise admissible evidence of the past crime, wrong,
or act, alleged to have occurred on March 22, 2020, under the provisions of La. C.E.
arts. 412.4 or 404 B; and we remand for further proceedings.
REVERSED; REMANDED
6 Although we need not reach this issue, we also find the March 22, 2020 incident is admissible pursuant to La. C.E. art. 404 B. When seeking to introduce evidence pursuant to La. C.E. art. 404 B, the State need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act. Taylor, 217 So.3d at 291. In Taylor, the Louisiana Supreme Court reaffirmed the admissibility of hearsay at a La. C.E. art. 404 B hearing and found that an unauthenticated police report may be sufficient to sustain the State’s burden. We find the unauthenticated police report in this case is sufficient to sustain the State’s burden. The March 22, 2020 prior incident shows defendant’s intent to harm his live-in fiancé, also the victim in the instant case, establishes his modus operandi and pattern and shows an absence of mistake or accident. Accordingly, we find the trial court abused its discretion in denying the State’s notice of intent as to the March 22, 2020 incident.
22-K-581 14 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
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