State v. Broussard

527 So. 2d 1216, 1988 La. App. LEXIS 1363, 1988 WL 63590
Louisiana Court of Appeal·Decided June 22, 1988·No. No. CR87-1317·Published·Cited by 1 cases

Opinions

KING, Judge.

The sole issue presented by this appeal is whether or not the trial court committed reversible error in allowing the State to admit “other crimes” evidence at the time of trial.

On January 2, 1987, Melvin J. Broussard (hereinafter defendant) was charged by bill of information with theft of over $500.00, a violation of La.R.S. 14:67. On October 21, 1987, defendant was tried and found guilty as charged by a six person jury. Defendant was sentenced to five years at hard labor. Defendant appeals his conviction and sentence. We reverse defendant’s conviction, set aside the sentence, and remand the matter for further proceedings.

FACTS1

On October 17, 1986, a caller telephoned a Sears department store, identified him[1218]*1218self as the registered holder of a Sears credit card, gave the salesperson the account number, and purchased two video cassette recorders. The caller informed the salesperson that a taxi would be sent to pick up the merchandise and deliver it to the caller at a local motel. The cab driver picked up the merchandise and delivered it to a local motel to an individual who was later identified as defendant. After Sears determined that the credit card had been reported stolen by its registered holder on October 15, 1986 and after it was determined that defendant had received the merchandise, he was arrested and charged with theft. The prosecution and the defense essentially agreed on these facts but disagreed as to whether the cardholder had authorized defendant to purchase the merchandise.

The prosecution contended that the cardholder “picked up” defendant, a transvestite, and brought defendant to a local motel to engage in sex. Upon realization that defendant was not a female, the cardholder left. A short time later, the cardholder discovered that his wallet, containing his Sears credit card and a bank card, was missing and reported them as stolen. The cardholder testified at trial that defendant was never authorized to purchase the merchandise from Sears with his credit card.

Defendant admits being picked up by the cardholder in the Four Comers area of Lafayette and accompanying him to a local motel. Defendant asserts that he was paid $200.00 to engage in various sexual acts with the cardholder. According to defendant, the cardholder returned two days later and requested that defendant again engage in sex. Because the cardholder did not have any money, he agreed to allow defendant to purchase merchandise from Sears and charge it to his account. Defendant claims that he again engaged in sex with the cardholder in exchange for the merchandise.

At the time of trial the State introduced evidence of defendant’s use of a stolen bank card, which was also stolen from the cardholder at the same time his Sears credit card was stolen, and the defendant moved for a mistrial. The defendant’s motion for a mistrial was denied and the jury heard the evidence. Defendant appeals his subsequent conviction and sentence.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 3

Assignments of error numbers one and three have not been briefed and, therefore, are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

ASSIGNMENT OF ERROR NUMBER 2

By this assignment of error defendant contends that the trial court committed reversible error in allowing the State to introduce “other crimes” evidence at the time of his trial. Defendant argues that the evidence was inadmissible because the State failed to give notice of intent to use the evidence prior to trial and because the evidence was admitted without balancing the probative value of the evidence against its prejudicial effect.

The other crimes evidence objected to by defendant consists of testimony and photographs showing the defendant making bank withdrawals using the stolen bank card belonging to the same cardholder who owned the stolen Sears credit card the defendant was being tried for using without authorization. These bank withdrawals occurred on October 14 and 15, 1986, several days before defendant’s use of the stolen Sears credit card. This evidence was introduced after testimony that the bank card had been reported stolen by the cardholder at the same time his Sears credit card was stolen.

Evidence of other crimes is generally inadmissible because a defendant might be found guilty of the offense charged because he has committed past offenses. State v. Kahey, 436 So.2d 475 (La.1983); State v. Upchurch, 510 So.2d [1219]*1219112 (La.App. 3 Cir.1987). Exceptions to this general rule of inadmissibility are recognized where the State seeks to introduce evidence of other crimes for some substantially relevant purpose other than to show that the defendant is guilty because he is a man of general bad criminal character. State v. Kahey, supra; State v. Harris, 383 So.2d 1 (La.1980).

Louisiana statutes recognize these instances where other evidence is “substantially relevant” so as to qualify as an exception to the general exclusionary rule such as acts relevant to show intent, knowledge or system. La.R.S. 15:445 and 15:446; State v. Kahey, supra. Additionally, evidence related to other offenses may be admissible as part of the res gestae. La.R.S. 15:447. If the prosecution intends to introduce evidence of other crimes it is required to furnish to defendant a particularized statement of the other crimes evidence it intends to offer which specifies the exception to the exclusionary rule upon which the prosecution relies for admissibility. State v. Goza, 408 So.2d 1349 (La.1982); State v. Prieur, 277 So.2d 126 (La.1973). No notice of intent to use evidence of other crimes is required as to evidence of offenses which are part of the res ges-tae, or convictions used to impeach a defendant’s testimony. State v. Leatherwood, 411 So.2d 29 (La.1982); State v. Johnson, 443 So.2d 766 (La.App. 3 Cir.1983), writ denied, 445 So.2d 451 (La.1984). Once a determination is made that other crimes evidence is to be presented for one of the “substantially relevant” purposes, the trial judge is obligated to balance the probative value of the evidence against its prejudicial effect prior to admitting the evidence. State v. Kahey, supra. This balancing is unnecessary where the other crimes evidence is part of the res gestae. State v. Jackson, 450 So.2d 621 (La.1984).

In the instant case, the State argues in brief to the Court that the evidence of defendant’s use of a stolen bank card, which was stolen at the same time as the Sears credit card and used several days prior to the theft for which defendant was charged in using the stolen Sears credit card, is admissible as part of the res ges-tae. The State also argues in brief that the evidence of other crimes had independent relevance to corroborate the defendant’s knowledge and intent to use the stolen Sears credit card to make purchases for himself.

The res gestae of an offense is always admissible into evidence. La.R.S. 15:447; State v. O’Neal, 501 So.2d 920 (La.App. 2 Cir.1987), writ denied, 505 So.2d 1139 (La.1987). Res gestae is defined as those necessary incidents of the proscribed criminal conduct and whatever may form one continuous transaction with, whether occurring before or after, the particular conduct. La.R.S. 15:448; State v. Williams, 454 So.2d 1211 (La.App. 2 Cir.1984), writ denied, 461 So.2d 313 (La.1984).

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State v. Broussard, 527 So. 2d 1216, 1988 La. App. LEXIS 1363, 1988 WL 63590 (La. Ct. App. 1988).

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