State v. Howard

106 So. 3d 1038, 2012 WL 5500338, 2012 La. App. LEXIS 1455
Louisiana Court of Appeal·Decided November 14, 2012·No. No. 47,495-KA·Published·Cited by 6 cases

Opinion

MOORE, J.

| Thomas Howard appeals his convictions on one count each of second degree battery and simple battery and his consecutive sentences of five years at hard labor and six months in parish jail. For the reasons expressed, we affirm.

Factual and Procedural Background

Howard and the first victim, 19-year-old Alyssa Balsamo, had dated for about 2½ years. They had broken up often, but Alyssa always took him back; however, about two weeks before the incident, Howard left her for another girl, and Alyssa was bitter about it.

At trial, Alyssa testified that on the night of May 20, 2009, she and two friends, Liz McEacharn and the second victim, Hannah Anderson, were together at The Library Lounge in Monroe. Alyssa was drinking and had taken half a Xanax, a popular anti-anxiety drug. At some point, the women decided to drive to a house in Swartz to visit someone named Trey; all agreed that they went on the strict understanding that Howard would not be there. Liz drove the trio up to Swartz.

When they pulled up to Trey’s house, they saw Howard’s truck parked there. The area was dark and the truck had heavily tinted windows, so Alyssa could not see inside it; she thought Howard was not in the truck but in the rear of the property, riding mud bikes. Angered at seeing [1041]*1041his truck, she kicked its side panel. She then reared back for another kick.

Suddenly, Alyssa heard the truck door slam and, before she could move, Howard “pounced” on her and knocked her to the ground. She remembered hitting the ground and struggling with him, but she then|2lost consciousness.

Hannah confirmed that after the first kick, Howard leapt out of the truck, grabbed Alyssa in a chokehold, threw her down, and the two wrestled on the ground for a few moments. Hannah tried to intervene, but Howard turned on her, grabbing her by the hair and dragging her through the grass. He then returned to the unconscious Alyssa and threw loose tobacco on her.

The third woman, Liz, stayed out of the fray and picked up Alyssa’s shoes and cell phone. She did not, however, call anyone for help.

After the fracas ended, Howard phoned Alyssa’s mother, telling her to come get her daughter, who “just beat me up.” Alyssa’s parents promptly drove to Trey’s house to find their daughter lying “unresponsive” on the ground. Hannah and Liz were still there, but Howard had left. The Bálsamos drove Alyssa to St. Francis Medical Center North, where she finally came to. Alyssa testified that she suffered a concussion, a bad bump (“goose egg”) on the back of her head, bruises on her neck and abrasions on her arms.

Deputy Brandon Semmes of the Ouachi-ta Parish Sheriff’s Office (“OPSO”) was dispatched to the hospital, where Alyssa reported she had been in a fight with her ex-boyfriend. Dep. Semmes saw the knot on the back of her head and “significant” bruising on her neck and arms. He tried to phone Howard, but got no answer. OPSO Cpl. Hindman took photos of Alyssa’s injuries; she was later released.

Later that night, OPSO Dep. Michael Meredith went to Howard’s house in the Belle Meade area northeast of Monroe. He read Howard his | Miranda rights and placed him under arrest. Howard showed him a dent on his truck and said his girlfriend had kicked it in. Dep. Meredith, however, thought the shoeprint matched a pair of work boots in the bed of the truck. Confronted with this, Howard admitted, “Yeah, I just wanted to get her in trouble because I knew I was [in trouble].”

A few months after the incident, Alyssa and Howard reconciled; Mrs. Balsamo let him move into the family home, where Alyssa was still living. Mrs. Balsamo testified, however, that she evicted him about three months later, after he and Alyssa got into another fight.

In September 2009, OPSO Sgt. Charles Johns interviewed Alyssa about the incident in Swartz. Sgt. Johns testified that she tried to retract her statement, saying she had been drinking and taking Xanax when she gave it; she also told him to contact Liz McEacharn as a witness. He then talked to Liz, who gave a statement similar to Alyssa’s original version of events. At trial in July 2010, Alyssa testified that her retraction to Sgt. Johns was untrue; at the time, she and Howard had just “got back together” and she wanted to give him a second chance.

In July 2009, the state charged Howard by bill of information with one count of second degree battery against Alyssa and one count of simple battery, a misdemean- or, against Hannah.

Trial Proceedings

On July 21, 2010, four days before trial was to begin, the state filed a notice of intent to use evidence of other crimes under La. C.E. art. 404 B, specifically two incidents with a woman named Lora Wallace, in April and 14June 2008, “to show the [1042]*1042Defendant’s violent propensities toward women while they are engaged in an intimate and/or domestic relationship with the Defendant.” Before trial began on July 25, the court held a Prieur hearing to determine whether to admit the 404 B evidence.

At the Prieur hearing, Assistant Chief Becky Crain of the Caldwell Parish Sheriffs Office testified that on April 14, 2008, Ms. Wallace came to the office to file a complaint against her boyfriend, Howard; she described an incident in Lucedale, Mississippi, the previous weekend. Dep. Crain observed a bruise on Ms. Wallace’s left eye and some bruising on one of her arms; she took photos. Dep. Crain told Ms. Wallace she had to go to authorities in Mississippi to file a complaint. Ms. Wallace testified that she and Howard were girlfriend and boyfriend, on and off, for about three years from 2007 to 2009; she had gone to Mississippi to visit him where he was working on a pipeline; when she was ready to leave, he did not want her to go; they argued, and it escalated into physical contact in which he hit her in the eye and held her down on the bed, while she bit and pinched him; after 45 minutes, he left in his truck, threatening to kill himself; she followed him awhile in her car, lost sight of him, and went back to his trailer; he returned some time later, and she finally left after he fell asleep. Ms. Wallace went to Caldwell Parish, talked to Dep. Crain, and then drove back to Mississippi; on the way, she saw Howard and Alyssa driving back to Louisiana together.

Despite this incident, Ms. Wallace continued her relationship with Howard. She was riding with him in June 2008 when another man either 15texted or phoned her; Howard saw this, got furious, grabbed her by the hair and smashed her head against the windshield several times; she stopped the car in the Bawcomville area of West Monroe, and he walked away. She did not report this incident to police, but as a result of it she finally broke up with him.

The court ruled that the state met its burden of proof under Art. 404 B and State v. Prieur to admit this evidence. The defense objected; the court directed counsel to fashion a limiting jury charge.

Immediately after the Prieur hearing, the case proceeded to trial on July 25-26, 2011. Before jury selection began, defense counsel asked for a “postponement” of trial because a character witness, Jeff Smith, who had once seen Alyssa “attack” Howard at a party, was in Singapore and unavailable to testify. Counsel added that she was not aware that the case was set for trial until the previous Wednesday, July 20.

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State v. Howard, 106 So. 3d 1038, 2012 WL 5500338, 2012 La. App. LEXIS 1455 (La. Ct. App. 2012).

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