State of Louisiana v. William Chester Farry Jr. AKA William Chester Farry AKA William C. Farry AKA William Farry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-210

STATE OF LOUISIANA

VERSUS

WILLIAM CHESTER FARRY JR.
A/K/A WILLIAM CHESTER FARRY
A/K/A WILLIAM C. FARRY
A/K/A WILLIAM FARRY

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 31701-11
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

AFFIRMED.

John Foster DeRosier
District Attorney
Karen McLellan
Ross M. Murray
Carla S. Sigler
Assistant District Attorneys
Fourteenth Judicial District Court
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
William Chester Farry Jr.

WILLIAM CHESTER FARRY JR.
A/K/A WILLIAM CHESTER FARRY
A/K/A WILLIAM C. FARRY
A/K/A WILLIAM FARRY
General Population
Louisiana State Prison
Angola, LA 70712

SAVOIE, Judge.

The Defendant, William Farry, was convicted by a jury of armed robbery, a

violation of La.R.S. 14:64. The State charged the Defendant as a habitual offender.

The trial court found the Defendant to be a third habitual offender and sentenced

him to life imprisonment. The Defendant now appeals his conviction.1

The Defendant, through his attorney, assigns two errors:

1. The circumstantial evidence in this case was insufficient to
convict the Defendant of armed robbery.

2. The trial court erred by not granting the Defendant’s Pro Se
Motion for a New Trial due to an improper ruling on the admissibility
of evidence during the pretrial Prieur hearing and a lack of reasonable
notice.2

Additionally, the Defendant assigns two pro se errors:

1. The State failed to prove, by clear and convincing evidence, other
crimes evidence.

2. Trial court erred in denying the Defendant’s motion for new trial.

After a review of the record, the Defendant’s conviction is affirmed.

FACTS

In May 2009, someone entered James Fodrie’s (Mr. Fodrie) home armed

with a baseball bat. The robber took fifteen dollars ($15.00), a gun, and a coin bag

containing mostly German coins and currency.

The trial was held six years later in June 2015.

That same night, prior to the robbery, Mr. Fodrie, ran into Bridgette Bass

Schwarz (Ms. Schwarz) at a bar called “Detour” that he often frequented. Mr.

Fodrie knew Ms. Schwarz as she had previously worked as a bartender at Detour.

1
The Defendant appeals his sentence in State v. Farry, 16-211, which is also pending.
2
State v. Prieur, 277 So.2d 126 (La.1973).

Mr. Fodrie recalled Ms. Schwarz entered with two men and then approached him.

After talking for a while, Ms. Schwarz asked Mr. Fodrie if she could eat supper at

his house. Mr. Fodrie went home and began cooking supper when Ms. Schwarz

called and asked him to pick her up at her home in Westlake, Louisiana. Mr.

Fodrie lived in Sulphur, Louisiana. Mr. Fodrie estimated that it took him twenty

minutes to travel to her house. Once they arrived at Mr. Fodrie’s home and talked

for a while, Mr. Fodrie recalled Ms. Schwarz took a phone call and walked outside.

Around five minutes after Ms. Schwarz returned from outside, the robber, carrying

a baseball bat, entered the home. Mr. Fodrie recalled the robber had on a black

sweatshirt with a hood, a white mask, and white gloves. The robber asked him for

money, and Mr. Fodrie took $15.00 dollars out of his shirt pocket and threw it on

the coffee table. The robber instructed Mr. Fodrie and Ms. Schwarz to get on the

floor, and the robber instructed Ms. Schwarz to tie up Mr. Fodrie with a phone

cord. The robber then tied up Ms. Schwarz and placed Mr. Fodrie and Ms.

Schwarz in a closet. Mr. Fodrie was of the opinion that the robber was a man

based on his voice. He did not find anything strange about the voice. According

to Mr. Fodrie, the robber took his gun, his coin collection contained in a black coin

bag, and Mr. Fodrie and Ms. Schwarz’s cell phones. 3 The gun and the coin

collection were kept in the drawer in Mr. Fodrie’s bedside table. After the robber

left, Mr. Fodrie and Ms. Schwarz went to the neighbor’s home and called 911.4

The call was made at approximately 10:12 p.m.

At trial, Mr. Fodrie identified the black pouch given to police as the one that

was stolen from him. Mr. Fodrie explained that, after the robbery, he did not see

3
The black bag contained assorted coins and bills.

2

the stolen coins until he was called to the police station two years later. Mr. Fodrie

testified as to what was in the black coin bag, explaining, in pertinent part:

A. Yeah, I got some of the Deutsche marks and the pennies and --
five pennies, marks in different denominations, the German Deutsche
mark and the pennies. Fifty Deutsche marks and your twenty
Deutsche mark.

Q. Let’s talk specifically about how you came into possession of the
coins and those marks.

A. This is money and everything that I carried with me and everything
when I was stationed in Europe when I was in the Army and this is the
money that I brought back from Germany with me, and it’s just of
sentimental value, but what else I had in this here at the time was
Liberty halves. I had some 1800 silver dollars. I have the Anthony
dollars, the gold dollars. I had some buffalo nickels, wheat dimes, and
one penny that was 1926 and everything I kept just because of the age.
I mean I had various different coins that was collectors.

Q. And --

A. That are no longer here.

Q. And those items -- some of those items that you had just mentioned
are missing from there?

A. Yes.

Mr. Fodrie testified Ms. Schwarz was not left alone in his home, and she did

not go into his bedroom

Ms. Schwarz testified that, at the time the offense occurred, she lived with

the Defendant who was her boyfriend. Her daughters Kristin and Kari Bass lived

with her off and on. She recalled that, on May 30, 2009, she, the Defendant, and

two other men were sitting around her home. Ms. Schwarz stated that the two men

grabbed her, and the Defendant injected her with cocaine after which she passed

out on the bed for an hour. She was awakened by the Defendant. Ms. Schwarz

further testified, in pertinent part:

3

A. When I woke up they were crushing the pills upon the dresser and
melting them and putting water over them and trying to put them in a
Visine bottle, and they told me to get dressed, so I was getting dressed
and then the other two guys left and then Will informed me what he
wanted me to do.

Q Now, at this time you’ve already been injected supposedly?

A. Yes sir.

Q. And what did you think about this?

A. I was scared.

Q. Why didn’t you notify some authorities?

A. I was scared. I’m high on cocaine. My state of mind, I was high on
cocaine. This is somebody that I’ve dated.

Another friend of the Defendant’s, referred to as “Johnny Cash,” came by

the home between thirty minutes and an hour later. The Defendant wanted Ms.

Schwarz to go into a bar, put Xanax in a patron’s drink, and lure the patron out of

the bar for the Defendant to rob. The three left the home to carry out the

Defendant’s plan.

Ms. Schwarz testified that, after she came out of the first bar, the Defendant

punched her because she did not find anyone to drug. After going to two or three

bars, the Defendant told her to give him the Visine bottle, and they would order a

drink. Ms. Schwarz did not put Xanax in anyone’s drink. She testified that she

thought the plan to rob someone had been abandoned.

Around 5:30 p.m., the three entered Detour bar. Ms. Schwarz began talking

to Mr. Fodrie whom she knew from previously working as a bartender at Detour.

After being in the bar for twenty-five to thirty minutes, the Defendant told her it

was time to leave. Ms. Schwarz thought the Defendant was jealous. Mr. Fodrie

and Ms. Schwarz made plans to meet for supper at Mr. Fodrie’s home, and Ms.

4

Schwarz then returned to her home. There was no testimony that the Defendant

was involved in the plan to meet for supper. According to Ms. Schwarz, Mr.

Fodrie called her and asked her to come over to his home and eat fish. Ms.

Schwarz asked Mr. Fodrie to pick her up from her home in Westlake. Ms.

Schwarz estimated that it took twenty or so minutes for him to get to her home.

She testified that she arrived at Mr. Fodrie’s home between 9:30 and 10:00 p.m.

After arriving and talking for a while, Ms. Schwarz remembered receiving a

call from the Defendant. He told her that he knew where she was, and he was

coming to get her. Ms. Schwarz told him to calm down. After returning inside the

trailer, Ms. Schwarz dropped her phone in her purse. She testified that, five to ten

minutes later, the robber burst through the door. The robber was carrying a

baseball bat, and he wore a black hoodie turned inside out and a black mask. It

was Ms. Schwarz’s testimony that the robber had a deep male voice. She was of

the opinion that the robber was attempting to change his voice. The robber

instructed her to tie up Mr. Fodrie with a telephone cord. The robber then tied up

Ms. Schwarz. The robber tried to use Ms. Schwarz’s belt but the belt broke, and

the robber used something else. Ms. Schwarz stated the robber placed his hand

down the back of her pants. Next, the robber put both of them in a closet. Ms.

Schwarz recalled hearing the robber going through the trailer.

After the robber left, Ms. Schwarz and Mr. Fodrie called the police from his

neighbor’s home. Mr. Fodrie then took Ms. Schwarz home and the Defendant was

home when she arrived. She informed the Defendant what happened to her that

night, and his response was cold and unemotional. Two days later, she saw the

Defendant with a black coin bag. The Defendant told Kristin he received the black

5

coin bag from his uncle. Ms. Schwarz recalled that the Defendant kept the coin

bag on his person “at all times.”

Three or four days after the robbery, the police called and wanted to

question Ms. Schwarz about the robbery. This made the Defendant angry, and Ms.

Schwarz testified that she and the Defendant had a big fight. The Defendant

packed his bags and planned to leave the home. At trial, the following pertinent

exchange between Ms. Schwarz and the State occurred:

A. Yes. Well, that begin the argument and then we just started arguing
and he was mad and he started rambling and I told him he needed to
get a job and he was mad about me saying that, and then he started
saying that he -- that I need to calm down and listen to him and do
what he says.

Q. Okay.

A. That he knows how I feel about him, that he’s heard me talk to
people, and that he has the coins and I just need to stay where I’m at
basically.

Q. Okay. Did he mention anything else to you that led you to believe
that he had taken part in the robbery?

A. He said he would do to me what he’s done to my friends.

Q. Okay. Did he mention anybody specifically that he had done
anything to?

A. No, not that I can remember.

Q. Okay. Were there any details that came out regarding the robbery?

A. He said he used my clothes and my stuff and I couldn’t figure out
what that meant or what he meant because he was rambling and he
was packing.

Q. Why was he packing?

A. He was leaving. Me and Will had an on and off relationship. He
went to his dad’s a lot.

Q. Okay. So he’s rambling on and on about, you know, doing to you
what he had done to other people?

6

A. Yes.

Q. And using your clothing?

A. Yes.

Q. Let me ask you this. Did he ever have an occasion to wear your
clothing before?

A. Yes. He wore hoodies and jackets and stuff like that.

Q. Okay. As he is -- you said he was packing his things?

A. Yes.

Q. What’s going on?

A. He’s yelling and ranting and raving and once I realized what he
meant by he used my stuff, he had put the coins on the bed.

Q. Okay.

A. And he was going to the bathroom. He had been taking his stuff
out of the closet and my bed is right here and the closet is right here,
and he’s putting them on there and he had put the coins on the bed.

Q. Okay.

A When he goes to get his shaver out of the bathroom I took the coins
and I slid them. I had a sleigh bed and there’s wood on each side of it
and there’s a wood little piece, so it would catch the bag.

Q. It kind of curves a little bit?

A. Yes.

Q. Okay.

A. And I slid it there and he was looking for the bag and looking for
the bag, unpacked stuff looking for the bag, and then he finally just
packed everything up and left.

Q. Okay.

A. He had come back that evening again to look for the bag.

Q. He wanted those coins?

7

A. Yes, he wanted that bag.

The Defendant did not find the coin bag. Ms. Schwarz testified that she

placed the coin bag in a safe located at her home, and the Defendant did not have

the combination to the safe. She and her ex-husband were the only ones with the

combination.5 Ms. Schwarz had possession of the coin bag until she gave it to the

police two years after the robbery.

In Ms. Schwarz’s initial interview with police directly after the incident and

in her second interview with police several days after the robbery, she did not tell

the police of the Defendant’s involvement in the robbery. At trial, Ms. Schwarz

admitted that she lied to police about her drug use and the Defendant’s plan for her

to lure someone for him to rob.6 Ms. Schwarz testified that she did not tell police

about the Defendant robbing Mr. Fodrie during the next two years because she

feared for herself and her family.

Two years after the robbery, Ms. Schwarz was in jail on drug charges. 7 Ms.

Schwarz recalled that the Defendant visited her in jail along with her daughters and

grandchild. According to Ms. Schwarz, she argued with the Defendant about him

not giving her things to her ex-husband. At that point, the Defendant threatened

her and her family.

Ms. Schwarz testified that, due to the threat by the Defendant, on June 10,

2011, she gave a statement (her third statement) to police implicating the

5
Ms. Schwarz testified that her ex-husband paid her bills and took care of her and her
girls.
6
The record is unclear as to what exactly was said to police during the second interview.
Although Ms. Schwarz testified that the Defendant confessed to her that he had robbed Mr.
Fodrie’s home before this second interview, the record indicates Ms. Schwarz did not tell the
police about the Defendant’s admission at the second interview.
7
Ms. Schwarz pled guilty to drug charges (possession of marijuana and CDS II) and was
sentenced to ninety days in jail and to two and one-half years of probation.

8

Defendant as the robber of Mr. Fodrie’s home. Ms. Schwarz explained, in the

following exchange, how the police came into possession of several pieces of

evidence:

Q. In the days that followed the sheriff’s department comes into
possession of a couple of pieces of evidence?

A. Yes sir.

Q. And the first thing that they get is a sweatshirt, correct?

A. Yes sir.

Q. How did they get that sweatshirt?

A. I had found my sweatshirt. I had two black sweatshirts and when
Will had mentioned that I was looking for my other sweatshirt and it
was in the wash, which I found funny because I hadn’t wore it.

Q. Okay.

A. And my daughter, Kristin, hadn’t been there. She had been at her
father’s, it was during the summer.

....

Q. Sweatshirt, a hoodie, is one piece of evidence that came into the
possession of the sheriff’s department.

A. Yes sir.

Q. A few days later there’s a pouch with coins?

A. Yes sir.

Q. How did that come into possession of the sheriff’s department?
Now, at this time you had indicated that you had never taken it out of
your safe; is that correct?

A. That’s correct.

Q. Was it still in the safe at that time?

A. Yes sir.

Q. How did it make its way to the sheriff’s department?

9

A. My daughter.

Q. What happened with that?

A. She come [sic] to visit me and I told her I needed her to get some
stuff and bring them [sic] down to the police department and tell them
that I sent it to them and to have them come talk to me.

On cross-examination, Ms. Schwarz testified that, when she was at the

victim’s home, she did not know the Defendant was planning on robbing the

victim; she thought the Defendant had abandoned his earlier plan to rob someone.

Additionally, she stated that she did not give the Defendant the victim’s address

because she did not know it. Then, the following pertinent exchange occurred on

cross-examination:

A. How did you know following your phone calls while at Mr.
Fodrie’s house that Mr. Farry followed you to the house?

A. When we was in the big fight, I had mentioned the big fight where
a detective called me, and Brent -- Detective Brent Young called me
and when he was agitated, that’s when it all came out that he followed
me, he heard what we were saying, and he had got the -- he had stole
his -- his words was he has got stuff from somebody that I knew, wore
my stuff to do it, and he knows where-- I know what he’s capable of.

Q. How did you determine this, the last statement--

A. He -- go ahead.

Q. --who told you?

A. Who told me? William Farry.

Q. How did you know that William Farry followed you to Mr.
Fodrie’s house?

A. I found out later the exact events from him.

Q. And under what circumstances did --

A. When we were arguing about him not wanting me to go give a
statement to Detective Young. He didn’t -- he told me I didn’t need to
go back up there, that I’d gave a statement.

10

Ms. Schwarz admitted that she went to the bathroom alone when she was at

Mr. Fodrie’s home.

Seventeen year old Kristin Bass (Kristin), Ms. Schwarz’s daughter, testified

that, in May 2009, she was eleven or twelve years old. She recalled that the

Defendant had a bag of foreign coins.

Robert Broussard, custodian for the Calcasieu Parish 911 records, testified

that the records of May 2009 indicated a call at 10:12 p.m. for a robbery at 1875

Marseillaise Drive in Sulphur, Louisiana.

Scott Patch, previously with the Calcasieu Parish Sheriff’s Office, responded

to a call of armed robbery at Marseillaise Drive. When he drove up to the address,

Mr. Fodrie and Ms. Schwarz were standing outside of the trailer. He recalled that

Mr. Fodrie stated a person forced his way into his trailer, the robber wore all black

and a Halloween mask, and carried a baseball bat. The officer testified that Mr.

Fodrie told him the robber took his wallet from his shirt pocket.

Detective Brent Young, employed by the Calcasieu Parish Sheriff’s Office,

testified that he investigated the May 2009 robbery of Mr. Fodrie’s home soon

after the robbery. He stated that he interviewed Mr. Fodrie and Ms. Schwarz.

From Ms. Schwarz, he learned about the phone calls between her and the

Defendant while she was at Mr. Fodrie’s home. Although the detective supboened

AT&T for phone records, he received no results, which indicated to him that the

phone was probably from a pre-paid service. He recalled there was a “revolver”

and cash missing from Mr. Fodrie’s house. Additionally, Detective Young

testified that Ms. Schwarz’s credit card and cell phone were missing, but they were

later found in her purse. Detective Young stated that Ms. Schwarz did not indicate

when the phone was found. He explained that he had no leads on the case until

11

two years later when Ms. Schwarz came to him and turned over two pieces of

evidence: the black sweatshirt and the foreign coins.

Kari Bass Gaskin (Kari), Ms. Schwarz’s other daughter, testified that, in

June 2011, Ms. Schwarz asked her to get her black sweatshirt from her home in

Westlake. Kari recalled that she found the sweatshirt in the closet and brought it to

the police station. A few days later, her mother asked her to get the coins from the

safe located at Kari’s father’s home. According to Kari, her mother told her that

the Defendant stole the coins. She also recalled seeing the Defendant with the

coins when they all lived together. Kari gave both of the items to the police.

Police also gathered other evidence during their investigation which

included a black belt and a phone charger cord.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find no

errors patent present.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the circumstantial evidence presented by the State

was insufficient to convict him of armed robbery. He explains the witnesses could

not identify him as the robber as they did not see the robber’s face. The Defendant

argues, “the only evidence arguably implicating William was circumstantial

testimony by Bridgett Bass [Ms. Schwarz] and evidence that she produced two

years after the case had gone ‘cold’.” The Defendant contends Ms. Schwarz lied

multiple times to the police. He points out the testimony of Ms. Schwarz was

inconsistent. The Defendant highlights the evidence was in Ms. Schwarz’s

possession for two years after the robbery before she turned it over to the police.

12

One of the pieces of evidence, Ms. Schwarz’s black sweatshirt that she claims was

worn inside out by the Defendant when he committed the robbery, was given to

police two years after the robbery. The Defendant explains:

Yet, Ms. Bass said she was only sure that William wore her
sweatshirt after later seeing it with the dirty laundry. In other words,
when Ms. Bass saw the sweatshirt on the intruder at Mr. Fodrie’s
house she was not then able to identify the sweatshirt as hers and, thus,
William as the intruder. She only later came to that conclusion after
making several assumptions. See, e.g., (Ms. Bass stated that she only
“realized” William used her sweatshirt during their argument several
days after the robbery) and (Ms. Bass did not initially think she knew
who the intruder was, rather she “discovered . . . the real story
[later] . . . .”). Furthermore, she never told police at the time of the
incident that she noticed the perpetrator wearing her sweatshirt or that
the sweatshirt that was worn was turned inside out.

The Defendant accuses Ms. Schwarz of taking the coins while she was at the

victim’s home. In support of this accusation, the Defendant notes Ms. Schwarz

admitted she went to the restroom at Mr. Fodrie’s alone.

The State responds the Defendant failed to present any evidence in support

of the allegations that Ms. Schwarz and her daughters lied. The State argues that

the jury believed Ms. Schwarz despite being made aware of her drug use and lying

to police.

There is no dispute a robbery took place and that Ms. Schwarz, through her

daughters, turned over the stolen foreign coins and currency belonging to the

victim to the police. The question is whether the State proved beyond a reasonable

doubt that the Defendant was the perpetrator of the offense.

Louisiana Revised Statues 14:64 provides in pertinent:

A. Armed robbery is the taking of anything of value belonging
to another from the person of another or that is in the immediate
control of another, by use of force or intimidation, while armed with a
dangerous weapon.

13

In State v. Cox, 13-305, pp. 1-2 (La.App. 3 Cir. 10/9/13), 124 So.3d 523,

524-25, this court set forth the applicable law when the identity of the offender is

at issue, explaining in pertinent part:

In State v. Dotson, 04-1414, pp. 1-2 (La.App. 3 Cir. 3/2/05),
896 So.2d 310, 312, this court has explained the insufficiency analysis
as follows:

In considering questions of sufficiency of the
evidence, a reviewing court must consider the evidence
presented in the light most favorable to the prosecution
and consider whether a rational trier of fact could have
concluded that the essential elements of the offense were
proven beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). The reviewing court defers to rational credibility
and evidentiary determinations of the trier of fact. State v.
Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166,
172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

Further, when the conviction is based upon
circumstantial evidence, La.R.S. 15:438 provides that
such evidence must exclude every reasonable hypothesis
of innocence. State v. Camp, 446 So.2d 1207 (La.1984);
State v. Wright, 445 So.2d 1198 (La.1984). However,
La.R.S. 15:438 does not establish a stricter standard of
review on appeal than the rational juror’s reasonable
doubt standard. The statute serves as a guide for the jury
when considering circumstantial evidence. On appeal,
the issue is whether a rational trier of fact, when viewing
the evidence in a light most favorable to the prosecution,
could find that all reasonable hypotheses of innocence
were excluded.

Furthermore, included with proving the elements of an offense is the
necessity of proving the identity of the offender. When the key issue
in a case is identification, the state is required to negate any
reasonable probability of misidentification in order to carry its burden
of proof. State v. McGee, 04-963 (La.App. 5 Cir. 1/11/05), 894 So.2d
398, writ denied, 05-593 (La.5/20/05), 902 So.2d 1050.

See also, State v. Gildhouse, 13-296 (La.App. 3 Cir. 10/9/13), 123 So.3d 888, writ

denied, 13-2638 (La. 4/25/14), 138 So.3d 643.

14

In State v. Jones, 08-687, p. 11 (La.App. 3 Cir. 12/10/08), 999 So.2d 239,

247, this court wrote:

[I]n the absence of internal contradiction or irreconcilable conflict
with physical evidence, a witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual conclusion. State v.
White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writs denied,
96-1459 (La.11/15/96), 682 So.2d 760; 98-282 (La.6/26/98), 719
So.2d 1048. Furthermore, regarding inconsistencies between a
witness’s pre-trial statement and his trial testimony, this court
explained in State v. Bender, 598 So.2d 629, 636 (La.App. 3 Cir.),
writ denied, 605 So.2d 1125 (La.1992):

When a witness is impeached, this simply means the jury,
as the trier of fact, was presented with evidence which it
could consider and weigh in determining the credibility,
or believability, of a witness. Simply because the witness
may have been impeached by prior inconsistent
statements does not mean that the jury was prohibited
from believing anything said by the witness. The
inconsistencies in the witness’s statements are one of any
number of factors the jury weighs in determining whether
or not to believe a witness’s trial testimony.

The only direct evidence presented was Ms. Schwarz’s testimony that the

Defendant told her he committed the crime and the testimony of Ms. Schwarz’s

daughters, Kristin and Kari, that they saw the Defendant with the coins. While Ms.

Schwarz gave prior inconsistent statements, the jury clearly believed her trial

testimony. It is the factfinder who “weighs the respective credibilities of the

witnesses, and this court will generally not second-guess those

determinations.” State v. Bright, 98-0398, p. 22 (La. 4/11/00), 776 So.2d 1134,

1147. We find that, viewing the evidence in the light most favorable to the State,

the State met its burden of proof as to the identity of the robber.

ASSIGNMENT OF ERROR NUMBER TWO
and PRO SE ASSIGNMENT OF ERROR NUMBER TWO

The Defendant argues that the trial court erred in denying his motion for new

trial in which he argued the trial court erred in admitting other crimes evidence.

15

The Defendant contends that, right before the trial began, he was informed Ms.

Schwarz claimed two other men were involved in holding her down when the

Defendant shot her up with drugs. Ms. Schwarz asserts the Defendant paid these

men with drugs. Additionally, Ms. Schwarz states she was given a bottle of Visine

that contained Xanax to drug the bar patrons. The Defendant contends the trial

court erred in ruling this was res gestae. The Defendant argues it should have been

considered evidence under La.Code Evid. art. 404(B) and notice should have been

given. He asserts the unreasonable notice of this evidence violated his right to a

fair trial and to prepare a defense. The Defendant contends he did not have the

opportunity to investigate the allegations.

On June 12, 2015, the State filed in the trial court a motion regarding

introduction of res gestae and, in the alternative, other crimes evidence. In the

motion the State set forth the other crimes evidence writing:

The State seeks the introduction of the following evidence against the
defendant: Bridgette Bass---a former girlfriend of the defendant, and a
witness to be called by the defendant at trial; the defendant injected
her with cocaine, which caused her to lose consciousness. Upon her
being awakened by the defendant, she was ordered by him to get
dressed and ready to leave. She observed the defendant crushing
Xanax pills and mixing them with a liquid. When Bass, the defendant,
and a third individual arrived at a bar, the defendant handed Bass a
Visine eye drops bottle and told her to squirt the liquid into the drink
of a bar patron prior to leading the patron out of the bar to get robbed
by the defendant. After failed attempts at two different bars, the
defendant physically struck Bass for not doing as she was ordered.
This is evidence of defendant’s plan, preparation, opportunity, and
intent in committing a robbery, which he ultimately succeeded in
doing. The defendant could not have accomplished his crime without
using Ms. Bass to distribute this Visine mixture to the victim of his
crime.

The hearing on the motion was held on June 15, 2015, which was the day before

the trial commenced. At the conclusion of the hearing, the Defendant argued in

pertinent part:

16

[T]he State is attempting to show the character, that it’s [sic] a bad
person, and the discovery from the defense point of view does not
indicate that.

Now, in viewing it the Court should actually use a balancing
test based upon what one individual has said who is actually in
possession of the coins, who has access to the coins, who has the
combination to the coins, and that would beg the question of the
validity of anything that she said as it relates to Prieur evidence. The
prejudicial impact would unfairly prejudice this defendant and his
ability to thoroughly represent himself and on top of that factor,
because I received this information within the last two days, it is my
opinion that this information is inconsistent with what I have been
studying in regards to this case, but to get it over the weekend?

The State pointed out that the evidence sought to be admitted about Ms. Schwarz’s

being injected with cocaine, going to the various clubs with the Defendant and

“Johnny Cash,” and planning to find somebody to rob was contained in the police

reports. The Defendant’s attorney responded that this was the first time he heard

about putting Xanax in a Visine bottle. Additionally, the Defendant’s attorney

argued in pertinent part:

[I]n this case it is argued that the State simply seeks to include what it
considers other crimes evidence in regards to establishing a pattern.
The actual evidence that we have, which is in the discovery, is
contrary to some of the things that have happened here. We feel that
with a trial it can be established; however, the integral part of this
evidence is more prejudicial than probative as it relates to the rights of
the defendant based upon what has already been studied in regards to
the incident. There may actually be a specific motive on behalf of Ms.
Bass [Ms. Schwarz) to gain something of value, probably to assist
herself in these circumstances, and the State is attempting to show the
character, that it’s a bad person, and the discovery from the defense
point of view does not indicate that.

The trial court found the evidence constituted res gestae, stating in pertinent

part:

THE COURT:

All right. I do find that, you know, based on listening to the
testimony of the witness that this is classic res gestae integral acts
evidence because it does tend to show the defendant’s plan, motive,

17

intent, preparation that day for the commission of the crime. So I am
going to allow. . . .
Absent an abuse of discretion, a trial court’s ruling on the admissibility of

other crimes evidence will not be disturbed. State v. Vail, 14-436 (La.App. 3 Cir.

11/5/14), 150 So.3d 576, writ denied, 14-2553 (La. 8/28/15), 176 So.3d 401.

In State v. Sumrall, 09-1216, pp. 29-30, (La.App. 3 Cir. 4/7/10), 34 So.3d

977, 993-94, writ denied, 10-1020 (La. 12/10/10), 51 So.3d 722, this court

explained admissibility of other crimes evidence, writing in pertinent part:

The Louisiana Supreme Court discussed the admissibility of
other crime [sic] evidence when it relates to conduct formerly known
as res gestae in State v. Taylor, 01-1638, pp. 10-12 (La.1/14/03), 838
So.2d 729, 741-43, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157
L.Ed.2d 886 (2004):

Generally, courts may not admit evidence of other
crimes to show defendant is a man of bad character who
has acted in conformity with his bad character. However,
under La. C.E. art. 404(B)(1) evidence of other crimes,
wrongs or acts may be introduced 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.” Res gestae
events constituting other crimes are deemed admissible
because they are so nearly connected to the charged
offense that the state could not accurately present its case
without reference to them. A close proximity in time
and location is required between the charged offense and
the other crimes evidence “to insure that ‘the purpose
served by admission of other crimes evidence is not to
depict 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.
Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074,
1076 (quoting State v. Haarala, 398 So.2d 1093, 1098
(La.1981)). The res gestae doctrine in Louisiana is broad
and includes not only spontaneous utterances and
declarations made before or after the commission of the
crime, but also testimony of witnesses and police officers
pertaining to what they heard or observed during or after
the commission of the crime if a continuous chain of
events is evident under the circumstances. State v.
Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble,

18

407 So.2d 693, 698 (La.1981). In addition, as this court
recently observed, integral act (res gestae) evidence in
Louisiana incorporates a rule of narrative completeness
without which the state’s case would lose its “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.’ ” Colomb, 747
So.2d at 1076 (quoting Old Chief v. United States, 519
U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

The res gestae doctrine in Louisiana is broad; it includes the
testimony of witnesses “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. Williams,
614 So.2d 252, 254 (La.App. 3 Cir.1993).

In State v. Arvie, 97-990, pp. 15-16 (La.App. 3 Cir. 2/4/98), 709 So.2d 810,

818, writ denied, 98-2461 (La. 1/29/99), 736 So.2d 827, the court explained:

“‘Evidence admissible under the res gestae exception to the general inadmissibility

of other crimes evidence is not subject to any notice requirements.’ State v. Velez,

588 So.2d 116, 128 (La.App. 3 Cir.1991), writ denied, 592 So.2d 408 (La.1992),

certiorari denied, 505 U.S. 1220, 112 S.Ct. 3031, 120 L.Ed.2d 901 (1992) citing

State v. Prieur, 277 So.2d 126 (La.1973).”

In this case, the trial court found the evidence constituted res gestae; thus,

according to Arvie, the Defendant was not entitled to notice. However, in this case,

the State gave the Defendant notice, and a hearing on the admissibility of the

evidence was held.

The Defendant argues the evidence did not constitute res gestae, and the trial

court erred in allowing it. In State v. Taylor, 01-1638, p. 10 (La. 1/14/03), 838

So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036 (2004), the court

explained, “Res gestae events constituting other crimes are deemed admissible

because they are so nearly connected to the charged offense that the State could not

19

accurately present its case without reference to them.” In State v. Odenbaugh, 10-

268, pp. 51-54 (La. 12/6/11), 82 So.3d 215, 251-52, cert. denied, ___ U.S. ___,

133 S.Ct. 410 (2012), the court explained in pertinent part:

Furthermore, the other crimes evidence must tend to prove a material
fact genuinely at issue, and the probative value of the extraneous
crimes evidence must outweigh its prejudicial effect. State v. Hatcher,
372 So.2d 1024, 1033 (La.1979); State v. Sutfield, 354 So.2d 1334,
1337 (La.1978); State v. Jackson, 352 So.2d 195, 196 (La.1977); State
v. Ledet, 345 So.2d 474, 479 (La.1977).

....

Moreover, erroneous admission of other crimes evidence is
subject to a harmless-error analysis. See, State v. Maise, 00-1158, pp.
8-9 (La.1/15/02), 805 So.2d 1141, 1147-1148; State v. Tyler, 97-0338,
p. 14 (La.9/9/98), 723 So.2d 939, 947; State v. Johnson, 94-1379, p.
15 (La.11/27/95), 664 So.2d 94, 101. An error is harmless if the
jury’s verdict actually rendered at trial was “surely unattributable to
the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078,
2081, 124 L.Ed.2d 182 (1993); cf. Satterwhite v. Texas, 486 U.S. 249,
108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988) (O’Connor, J.)
(harmless-error analysis begins with the premise that the evidence
admitted at trial is sufficient to support the verdict and asks whether
the state can prove “ ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’ ”) (quoting
Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967)).

We find the trial court did not err in ruling the evidence was res gestae.

Accordingly, we find this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the State failed to prove by clear and convincing

evidence the other crimes, wrongs and acts admitted by the trial court at trial. The

Defendant urges no credible evidence was presented to prove he committed the

other crimes, wrongs, or acts. The Defendant contends this evidence was

prejudicial to him in that without it the jury would not have reached the verdict he

was guilty beyond a reasonable doubt.

20

In State v. Cash, 03-853, pp. 15-16 (La.App. 3 Cir. 12/10/03), 861 So.2d 851,

860-61, writ denied, 04-27 (La. 4/30/04), 872 So.2d 472, and writ denied, 04-232

(La. 5/7/04), 872 So.2d 1080, this court examined the applicable burden of proof in

this type of case explaining in pertinent part:

Accordingly, we shall begin our analysis of this issue with
Judge Katz’s dissent in State v. Pollard, 98-1376 (La.App. 4 Cir.
2/9/00), 760 So.2d 362, 373 (emphasis added), where he observed:

The court in State v. Pardon, 97-248 (La.App. 5 Cir.
10/15/97), 703 So.2d 50, 57, writ denied, 97-2892
(La.3/20/98, 715 So.2d 1207), stated:

La.Code Evid. Art. 1104, added by
Acts 1994, 3rd Ex.Sess. No. 51, § 2,
changed the burden of proof. It provides:
“The burden of proof in a pretrial hearing
held in accordance with State v. Prieur, 277
So.2d 126 (La.1973), shall be identical to
the burden of proof required by Federal
Rules of Evidence Article IV, Rule 404.”
That burden of proof was enunciated in
Huddleston v. U.S., 485 U.S. 681, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988), as follows:

“We conclude that [Rule 404(b)] evidence
should be admitted if there is sufficient
evidence to support a finding by the jury that
the defendant committed the similar act.* *
* The court simply examines all the
evidence in the case and decides whether the
jury could reasonably find the conditional
fact . . . by a preponderance of the evidence.
(citations omitted)” [sic]

The court in Pardon then concluded: “. . . we find
the State carried its burden of proving the prior bad acts
by a preponderance of the evidence.” Pardon, supra, at p.
58. However, footnote # 1 in Pardon states: “Because
La.Code Evid. Art. 1104 refers to the burden of proof at
a hearing only, the impact of this article on the burden of
proof at trial is unknown at this point.” See Pugh, Force,
Rault & Triche, “Handbook on Louisiana Evidence Law”.

Our review of the jurisprudence since Pollard reveals the
impact of Article 1104 on the burden of proof at trial remains

21

unresolved in Louisiana. For this reason, and because the relevant
state law apparently requires that we follow federal law in
determining the burden of proof, we shall refer to the Supreme Court
of the United States. We have noted that the Supreme Court, in
discussing the standard for admissibility of other crimes evidence in
Huddleston v. U.S., 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99
L.Ed.2d 771, (1988) (emphasis added), stated that the court should
decide “whether the jury could reasonably find the conditional fact . . .
by a preponderance of the evidence.”

This language suggests the Huddleston court contemplated that
juries would employ the preponderance standard in their assessments
of other crimes evidence. Further, the Supreme Court’s language in
Dowling v. U.S., 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990),
a collateral estoppel case, appears to take the same view. In
explaining why collateral estoppel did not apply, the Supreme Court
noted:

‘[S]imilar act evidence is relevant only if the jury can
reasonably conclude that the act occurred and that the
defendant was the actor.’ Because a jury might
reasonably conclude that [defendant] was the masked
man who entered [victim’s] home, even if it did not
believe beyond a reasonable doubt that [defendant]
committed the crimes charged at the first trial . . . the
Double Jeopardy Clause is inapposite.

Dowling, 493 U.S. at 348-49, 110 S.Ct. at 672, citing Huddleston, 485
U.S. at 689, 108 S.Ct. at 1501 (emphasis added).

Therefore, following the Huddleston and Dowling cases, we
find that the preponderance of evidence standard, rather than a clear
and convincing standard of proof, shall apply to both pretrial and trial
admissibility involving other crimes evidence. Thus, the trial court
did not err in its instruction. Defendant’s fourth assignment of error
lacks merit.

Additionally, this court has held that “clear and convincing evidence is not

required; instead, a preponderance of the evidence standard applies.” State v.

Carmouche, 14-215, p. 3 (La.App. 3 Cir. 7/30/14), 145 So.3d 1101, 1103-04, writ

denied, 14-1819 (La. 4/2/15), 176 So.3d 1031 (citing Cash, 861 So.2d 851).

However, in Vail, 150 So.3d 576, this court held it was the State’s burden to

prove that a defendant committed the other crimes, wrongs, or acts by clear and

22

convincing evidence. Id. (citing State v. Prieur, 277 So.2d 126 (La.1973) and State

v. Stevens, 11-175 (La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ denied, 11-2496

(La. 3/30/12), 85 So.3d 115).

In State v. Rose, 06-402 (La. 2/22/07), 949 So.2d 1236, the court noted that

the applicable burden was unclear, writing in a footnote:

[Louisiana Code of Evidence Article] 1104 states:

The burden of proof in a pretrial hearing
held in accordance with State v. Prieur, 277
So.2d 126 (La.1973), shall be identical to
the burden of proof required by Federal
Rules of Evidence Article IV, Rule 404.

This court has not yet addressed the extent to
which Article 1104 and the burden of proof required by
the federal rules, as interpreted in Huddleston v. United
States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771
(1988), has affected the burden of proof required for the
admissibility of other crimes evidence. State v. Jacobs,
99-0991, p. 26 n. 15 (La.5/15/01), 803 So.2d 933, 952 n.
15; State v. Cotton, 00-0850, p. 11 n. 3 (La.1/29/01), 778
So.2d 569, 578 n. 3. In the instant case, we need not
reach the issue of the applicable burden of proof because
we find that the State satisfied its burden under either the
clear and convincing evidence standard or the
preponderance of the evidence standard.

Id. at 1243 n.3. Thus, it is unclear which standard is applicable.

As noted above, the erroneous admission of other crimes evidence is subject

to a harmless error analysis. Odenbaugh, 82 So.3d 215.

In this case, even assuming the State failed to satisfy its burden under either

standard, this court finds it would be harmless error. Excluding the evidence of the

alleged bad acts, this court finds Ms. Schwarz’s testimony that the Defendant

confessed he committed the crime to her was sufficient to support the Defendant’s

conviction. Thus, this claim lacks merit.

23

DECREE

For the foregoing reasons, the Defendant’s conviction is affirmed.

AFFIRMED.

24