State of Louisiana v. Jarvis Keon Carey

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-62

STATE OF LOUISIANA

VERSUS

JARVIS KEON CAREY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 04-K-3168
HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

CONVICTION AFFIRMED; SENTENCE
REMANDED WITH INSTRUCTIONS.

Alisa Ardoin Gothreaux
Assistant District Attorney
27th Judicial District Court
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-0551
Counsel for Appellee:
State of Louisiana

Daniel James Stanford
Attorney at Law
117 Caillouet Place
Lafayette, LA 70501
(337) 232-2272
Counsel for Defendant/Appellant:
Jarvis Keon Carey

DECUIR, Judge.

After a criminal conviction, the Defendant filed this appeal, raising one

assignment of error for this court’s review, an evidentiary matter pertaining to other

crimes evidence.

FACTS

The Defendant, Jarvis Keon Carey, was charged by bill of information with

unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3, and

simple battery, a violation of La.R.S. 14:35. The Defendant entered a plea of not

guilty. The State chose not to pursue the simple battery charge, and proceeded to a

jury trial on the unauthorized entry charge. A verdict of guilty of unauthorized entry

of an inhabited dwelling was subsequently entered, and the Defendant was sentenced

to three years at hard labor, suspended. The Defendant was placed on two years

active supervised probation. Among other probationary conditions, the Defendant

was ordered to pay a fine of $500.00, restitution of $250.00, reimbursement of

$100.00 to the Indigent Defender’s Office, and all costs of court.

At trial, the State presented evidence showing that on July 29, 2004, the

Defendant forced open the door of Sonya Vallery’s home and entered the home

without her permission. Vallery’s son was awakened and fled the house to get help.

Witnesses testified that the door to Vallery’s home was kicked in. Vallery herself

appeared to have been in a struggle and was crying when the police arrived. Both the

victim and the Defendant testified that they had a prior relationship, and there was

some evidence that the events on the night in question may have been related to the

ending of that relationship.

The Defendant was seen in the vicinity of Vallery’s home later that night and

was arrested at his own home shortly after the incident was reported.

PATENT ERROR

Our review of the record shows that a verdict was not returned on the charge

of simple battery. While the record indicates that the prosecutor made a decision not

to try the Defendant on the simple battery charge, the record contains no formal

disposition of the charge. Therefore, we must remand with instruction to properly

dispose of this outstanding charge.

The record also discloses certain deficiencies in the sentence imposed upon the

Defendant. The Defendant was ordered to pay restitution and reimbursement, as well

as a $500.00 fine. However, the sentencing court did not devise a payment plan, nor

did the court order a deadline for the payment of these amounts in a lump sum or

immediate payment at the time of sentencing.

At the time of the commission of the instant offense, Louisiana Code of

Criminal Procedure article 895.1(A) provided that a restitution payment imposed as

a condition of probation “shall be made, in discretion of the court, either in a lump

sum or in monthly installments based on the earning capacity and assets of the

defendant.” Additionally, as required by La.Code Crim.P. art. 835, and recognized

in State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, 600, the payment

plan must be imposed in the Defendant’s presence. In Stevens, this court found that

provisions that restitution be paid “over the duration of the supervised probation” and

that reimbursement to the Indigent Defender Board be paid “over the 48 months of

supervised probation” were “inadequate in that they do not either provide the monthly

payment schedule with which the Defendant is to comply or provide for a payment

plan to be formulated by Probation and Parole and approved by the trial court.”

Accordingly, this matter must be remanded with instructions to the trial court

to impose a payment plan for restitution and for reimbursement of the Indigent

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Defender Board. As in Stevens, either or both payment plans may be determined by

the trial court or Probation and Parole with approval by the trial court.

DEFENDANT’S ASSIGNMENT OF ERROR

In his only assignment of error, the Defendant contends the trial court erred

when it denied his motion for mistrial, which was based upon the State’s failure to

provide pre-trial notice of its intent to use other crimes evidence. The State then

introduced other crimes evidence of an alleged battery committed upon Sonya Vallery

on July 29, 2004, when the Defendant allegedly entered her residence without her

authorization.

During its opening statement, the State remarked to the jury that the Defendant

beat the victim upon forcibly entering her residence. The victim and other witnesses

also testified that she had been beaten by the Defendant or that she was bruised.

After the State’s opening statement, defense counsel moved for a mistrial, arguing the

State’s comments amounted to the introduction of other crimes evidence and was

prejudicial. The trial court denied the motion.

The Defendant asserts that evidence of an alleged battery committed upon

Vallery constituted the use of other crimes evidence under La.Code Evid. art. 404.

He also argues it was totally unnecessary to the State’s case, and was highly

prejudicial. Additionally, the Defendant asserts the State failed to provide him with

notice that it would use such evidence.

Louisiana Code of Evidence Article 404 provides, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, of the nature of any such evidence

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it intends to introduce at trial for such purposes, or when it relates to
conduct that constitutes an integral part of the act or transaction that is
the subject of the present proceeding.

In State v. Colomb, 98-2813, pp. 3-4 (La. 10/1/99), 747 So.2d 1074, 1075-76,

the supreme court explained the res gestae or “integral act” evidentiary doctrine:

This Court has long approved of the introduction of other crimes
evidence, both under the provisions of former R.S. 15:448 relating to res
gestae evidence and as a matter of integral act evidence under La.C.E.
art. 404(B), “when it is related and intertwined with the charged offense
to such an extent that the state could not have accurately presented its
case without reference to it.” State v. Brewington, 601 So.2d 656, 657
(La.1992). This doctrine encompasses “not only spontaneous utterances
and declarations made before and after commission of the crime but also
testimony of witnesses and police officers pertaining to what they heard
or observed before, during, or after the commission of the crime if the
continuous chain of events is evident under the circumstances.” State
v. Molinario, 383 So.2d 345, 350 (La.1980). We have required a close
connexity between the charged and uncharged conduct to insure that
“the purpose served by admission of other crimes evidence is not to
depict the defendant as a bad man, but rather to complete the story of the
crime on trial by proving its immediate context of happenings near in
time and place.” State v. Haarala, 398 So.2d 1093, 1098 (La.1981)
(emphasis added); see also 1 McCormick on Evidence, § 190, p. 799
(4th ed., John William Strong, ed., 1992) (other crimes evidence may be
admissible “[t]o complete the story of the crime on trial by placing it in
the context of nearby and nearly contemporaneous happenings.”)
(footnote omitted). The res geaste [sic] or integral act doctrine thus
“reflects the fact that making a case with testimony and tangible things
not only satisfies the formal definition of an offense, but tells a colorful
story with descriptive richness.” Old Chief v. United States, 519 U.S.
172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). The test of
integral act evidence is therefore not simply whether the state might
somehow structure its case to avoid any mention of the uncharged act or
conduct but whether doing so would deprive its case of narrative
momentum and cohesiveness, “with power not only to support
conclusions but to sustain the willingness of jurors to draw the
inferences, whatever they may be, necessary to reach an honest verdict.”
Id.

See also, State v. Arvie, 97-990 (La.App. 3 Cir. 2/4/98), 709 So.2d 810, writ denied,

98-2461 (La. 1/29/99), 736 So.2d 827.

Pursuant to Colomb and Arvie, we find the evidence that the Defendant beat

Vallery once inside her home is permissible “integral act evidence” that simply

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provided the jury with a complete scenario regarding the events surrounding the

offense. Colomb left open the question of whether integral act evidence is subject to

the balancing test of La.Code Evid. art. 403. However, this court has held that it is.

See State v. Joseph, 02-1370 (La.App. 3 Cir. 4/17/03), 854 So.2d 914; Arvie, 709

So.2d 810.

Louisiana Code of Evidence Article 403 provides that “[a]lthough relevant,

evidence may be excluded 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.” As noted by this court in State v.

Hamilton, 99-523, pp. 9-10 (La.App. 3 Cir. 11/3/99), 747 So.2d 164, 170:

Any inculpatory evidence is “prejudicial” to a defendant,
especially when it is “probative” to a high degree. The Louisiana
Supreme Court in State v. Germain, 433 So.2d 110 (La.1983), said that
“prejudicial” when used in the context of limiting the introduction of
other crimes evidence, means “only when it is unduly and unfairly
prejudicial.” Germain, 433 So.2d at 118....

....

Unfairly prejudicial evidence makes a conviction more likely because
it inflames the emotions of the jury or affects the jury’s attitude toward
the defendant wholly apart from its judgment as to his guilt or innocence
of the crime charged. La.Code Evid. art. 403 permits the exclusion of
relevant evidence, but only if the danger of unfair prejudice substantially
outweighs its probative value.

The Defendant’s complaint that the State did not provide him with notice of its

intent to use other crimes evidence is also without merit. Louisiana law holds that

“[n]o pre-trial notice is necessary for other crimes evidence when the evidence forms

an integral part of the crime charged. State v. Arvie, 97-990 (La.App. 3 Cir. 2/4/98),

709 So.2d 810, writ denied, 98-2461 (La.1/29/99), 736 So.2d 827.” State v. Williams,

00-1277, p. 7 (La.App. 3 Cir. 2/28/01), 779 So.2d 1106, 1110.

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DECREE

The Defendant’s conviction is affirmed. However, we remand the case for a

proper disposition of the outstanding charge of simple battery. Additionally, the trial

court is instructed to impose a payment plan for restitution to Sonya Vallery and for

reimbursement to the Indigent Defender Board. Either or both payment plans may

be determined by the trial court or Probation and Parole and approved by the trial

court. In all other respects the sentence imposed is affirmed.

CONVICTION AFFIRMED; SENTENCE REMANDED WITH

INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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