State v. Kirsh

273 So. 3d 1225
CourtLouisiana Court of Appeal
DecidedSeptember 20, 2016
Docket2015 KA 1856
StatusPublished

This text of 273 So. 3d 1225 (State v. Kirsh) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kirsh, 273 So. 3d 1225 (La. Ct. App. 2016).

Opinions

WHIPPLE, C.J.

The defendant, Tyeesha L. Kirsh, was charged by felony bill of information with simple criminal damage to property (with a value of five hundred dollars or more but less than fifty thousand dollars), a violation of LSA-R.S. 14:56 and by misdemeanor bill of information with resisting an officer, a violation of LSA-R.S. 14:108 (count 1) and telephone harassment, a violation of LSA-R.S. 14:285(A)(1). The defendant pled not guilty to all charges and, following a simultaneous jury trial and bench trial, was found guilty as charged on all counts. The defendant filed a motion for new trial, which was denied. For the simple criminal damage to property conviction, the defendant was sentenced to three-years imprisonment at hard labor; the sentence was suspended, and the defendant was placed on five years of supervised probation. For each of the (two) misdemeanor convictions, the defendant was sentenced to five days in the parish jail (with credit for time served). All sentences were ordered to run concurrently. The defendant now appeals, designating three assignments of error. We affirm the misdemeanor convictions and sentences. We affirm the felony conviction for simple criminal damage to property, but we amend the three-year sentence to two years imprisonment at hard labor, with all issues related to probation *1227maintained, and affirm, as amended. We remand for correction of the minutes and, if necessary, the commitment order.

FACTS

Teri McGovern owned and managed Slidell Village North Development, a housing development of twenty-five duplexes (fifty units), operated with federal funding, under a project-based "Section 8" contract. The defendant and her children moved into Unit 563 on Beechwood Drive in Slidell in October of 2012. On March 20, 2014, Slidell Village North Development, through McGovern, obtained a judgment of eviction in Slidell City Court to have the defendant removed from the premises. The defendant was given notice of the judgment, informing her that she had thirty days to comply with the judgment. However, by April 20, 2014, the defendant had not moved out of her apartment.

Slidell City Marshall, Wyatt Williams, was then called to the apartment on April 20, 2014 to ensure that the defendant moved out all of her possessions.

Williams testified at trial that while it was not a forced eviction, he "would consider it a near-forced eviction." According to Williams, the eviction case required "a little shoving" or a "little encouragement," and the defendant was unhappy over being evicted from her apartment. When asked what types of things the defendant was telling him while he stood by to ensure her departure, Williams testified, "You don't want to hear all of it. She was very hostile and she was taking her time."

When the defendant moved out, housing management conducted a videotaped walk-through of the apartment. According to McGovern, the defendant threatened her both before and after this videotape was made. The defendant also left several harassing phone messages on McGovern's answering machine, shortly following the move-out. The damages to the apartment totaled just under one thousand dollars and included holes and dents in the walls, writing and scribbling on the walls, a damaged heater system, a light fixture pulled from the ceiling, damage to the bathroom vanity, smoke alarm, kitchen faucet, refrigerator and punctured gas line.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In these related assignments of error, addressed together by the defendant, the defendant argues, respectively, that the trial court erred in denying her motion in limine to exclude at trial evidence of the misdemeanor charges and the trial court, in failing to exclude this evidence, erred in denying her motion for new trial.

The defendant was charged on the same day in separate bills of information. The felony bill of information charged her with simple criminal damage to property, and the misdemeanor bill of information charged her with resisting an officer and telephone harassment. Both misdemeanor charges carried maximum sentences of a fine of not more than five hundred dollars or imprisonment for not more than six months, or both. See LSA-R.S. 14:108(C) & LSA-R.S. 14:285(C). On the day of trial, defense counsel filed a motion in limine to preclude introduction of any evidence connected to the telephone-harassment and resisting-arrest misdemeanor charges. Prior to voir dire, the motion in limine was taken up by the presiding judge. Specifically, defense counsel averred that the State could not join misdemeanors with a felony, stating that:

[T]he evidence against Ms. Kirsh in the misdemeanor matter has to do with telephone recordings that are alleged to be harassing in nature. If the State seeks to introduce any of that evidence of the *1228misdemeanors, specifically the telephone recordings, we argue, first, it is barred by 404(B) because it's generally offered by the State only to prove Ms. Kirsh's bad character, as outlined in the motion, unless subject to an exception. For example, unless the recordings prove lack of mistake, motive, et cetera, the State cannot introduce this evidence under 404(B). Further, if the Court finds that the statements are admissible under 404(B), they also have to be admissible under 403. 403 says the statement must not be substantially more prejudicial, confusing to the jury or misleading than it is probative.
We argue here that, at best, the probative value of the statements and recordings would be Ms. Kirsh was very angry, and a very angry person might tend to do criminal damage. That probative value is minimal. It is not an essential element of the State's case in the criminal damage matter. The prejudicial nature of the statements, however, is great. They are full of profanity and racial epithets.
Ms. Kirsh herself believes that the prosecution is racially motivated. I cannot make a representation on that issue, but I can say it definitely colors the statements that she made. I am requesting to have the Court review the statements, if the State intends to introduce them, and make a ruling on 404(B) and 403.

One of the prosecutors then replied:

Your Honor, I don't think 404 applies as res gestae. You don't need 404(B) notice of res gestae. These statements were made during the time when the eviction proceedings were going on and taking place, and it's not like it's a two-minute crime. This eviction lasted for over thirty day [sic] to try to get her removed from those apartments. Those telephone calls came right at the end of those thirty days as she was being evicted. It's res gestae evidence that took place during the commission of her committing this crime, and they're admissible as such without 404(B) notice.
* * *
It goes to show that she had the intention to destroy this apartment way beyond normal wear and tear of an apartment that was in perfectly good condition ninety days before.

The trial judge informed counsel that he would rule on the motion after the jury was selected. Following voir dire, the trial judge denied the defendant's motion in limine, stating as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sullivan v. Louisiana
508 U.S. 275 (Supreme Court, 1993)
State v. Taylor
838 So. 2d 729 (Supreme Court of Louisiana, 2003)
State v. Lockett
754 So. 2d 1128 (Louisiana Court of Appeal, 2000)
State v. Benedict
607 So. 2d 817 (Louisiana Court of Appeal, 1992)
State v. Johnson
664 So. 2d 94 (Supreme Court of Louisiana, 1995)
State v. Johnson
728 So. 2d 901 (Louisiana Court of Appeal, 1999)
State v. Brown
656 So. 2d 1070 (Louisiana Court of Appeal, 1995)
State v. Miller
703 So. 2d 698 (Louisiana Court of Appeal, 1997)
State v. Galliano
839 So. 2d 932 (Supreme Court of Louisiana, 2003)
State v. Brewington
601 So. 2d 656 (Supreme Court of Louisiana, 1992)
State v. Scott
48 So. 3d 1080 (Supreme Court of Louisiana, 2010)
State v. Gatlin
164 So. 3d 891 (Louisiana Court of Appeal, 2014)
Roadway Express, Inc. v. Fiske
540 U.S. 1103 (Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
273 So. 3d 1225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirsh-lactapp-2016.