State of Louisiana Versus Cody Breaux

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

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 10, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-581
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)
DARREN A. ALLEMAND (RELATOR) THOMAS J. BUTLER (RELATOR) A. BRUCE NETTERVILLE (RESPONDENT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(RELATOR)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053