State of Louisiana v. William Gary Ryder

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-358

STATE OF LOUSIANA

VERSUS

WILLIAM GARY RYDER

************
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 333,040
HONORABLE GREGORY BEARD, DISTRICT JUDGE
************
SYLVIA R. COOKS
CHIEF JUDGE
************

Court composed of Sylvia R. Cooks, Chief Judge, Charles G. Fitzgerald, and Gary
T. Ortego, Judges.

AFFIRMED.

J. Phillip Terrell, District Attorney
Kenneth A. Doggett, Jr., Assistant District Attorney
Ninth Judicial District Court
P.O. Box 7538
Alexandria, LA 71306-7358
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Meghan Harwell Bitoun
Louisiana Appellate Project
P.O. Box 4252
New Orleans, LA 70119
(504) 470-4779
COUNSEL FOR DEFENDANT/APPELLANT:
William Gary Ryder

COOKS, Chief Judge.

Defendant, William Gary Ryder, was charged with eighteen counts of

pornography with a juvenile, violations of La.R.S. 14:81.1, one count of sexual

battery, a violation of La.R.S. 14:43.1, and one count of failure to register as a sex

offender, a violation of La.R.S. 15:542(F)(1). The evidence on the pornography with

a juvenile against Defendant came from SD cards his sister, Jenee Dorr, brought to

the police the day following Defendant’s assault of another sister, Kim Drefenbach.

Defendant entered a plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976) to

the pornography charges. The remaining charges were dismissed by the State. On

each count, the court sentenced Defendant to thirty years at hard labor to run

concurrently. Defendant is now before this court seeking review of the trial court’s

rulings on his motion to suppress and the notice of intent to use other crimes

evidence.1 He now seeks reversal of his convictions pursuant to his Crosby plea

agreement.

ASSIGNMENT OF ERROR NO. 1

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

denying his motion to suppress. He claims that officers conducted an illegal search

of his personal effects which led to an illegal arrest and illegal seizure of evidence.

Defendant previously sought review of the trial court’s denial of his motion to

suppress contending that law enforcement performed an illegal search of his

property when they viewed the contents of SD cards without a warrant and without

probable cause to obtain one. This court denied Defendant’s writ application, ruling

in pertinent part:

Detective Collura’s testimony revealed she believed Defendant’s
sisters had apparent authority to consent to a search of the cards.
Because consent may be based upon apparent authority as well as actual
authority, Detective Collura’s knowledge at the time she viewed the SD

1
According to the trial court, the following rulings/issues were preserved for review: “[t]he
issues involving the Motion to Suppress and the issues involving the 412.2 and the issues involving
the 404(B).”
2

cards supports a finding that her search was based upon valid consent.
See State v. Bates, 51,890 (La.App. 2 Cir. 2/28/18), 246 So.3d 672.
Accordingly, the trial court did not err in denying Defendant’s “Motion
to Suppress.”

State v. Ryder, 19-422 (La.App. 3 Cir. 10/4/19) (unpublished opinion). Review of

this ruling by the supreme court was not sought. Defendant is before this court again

seeking review of this ruling. Because Defendant entered a plea, there is no

additional evidence presented for this court’s consideration.

In State v. Small, 19-699, pp. 3-4 (La.App. 3 Cir. 3/25/20), 297 So.3d 835,

837-38, writ denied, 20-854 (La. 10/20/20), 303 So.3d 316, this court stated:

In State v. Dickerson, 14-170, pp. 9-10 (La.App. 3 Cir. 6/4/14),
140 So.3d 904, 909-10, writ denied, 14-1466 (La. 3/13/15), 161 So.3d
638, this court stated the following regarding the “law of the case”
doctrine:

Under the “law of the case” doctrine, prior decisions
of the appellate court are considered binding and may not
be reconsidered on appeal absent clear error. Juneau v.
State, 06-1653 (La.App. 3 Cir. 5/2/07), 956 So.2d 728,
writ denied, 07-1177 (La. 9/14/07), 963 So.2d 1004; State
v. Molineux, 11-275 (La.App. 4 Cir. 10/19/11), 76 So.3d
617, writ denied, 11-2556 (La. 3/30/12), 85 So.3d 117.
“The [law of the case] doctrine is discretionary and should
not be applied where it would effectuate an obvious
injustice or where the former appellate decision was
clearly erroneous.” Juneau, 956 So.2d at 733 (quoting
Trans La. Gas Co. v. La. Ins. Guar. Ass’n, 96-1477
(La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896) (alternations
in original).

....

As this honorable court has already ruled on the issue of
whether Defendant is entitled to discover the identities of
the informants, it may not be reconsidered on appeal
absent clear error by the appellate court. Defendant has
failed to present any new evidence showing that the denial
amounted to clear error or an unjust result. As such, we
shall not reconsider Defendant’s right to discover the
identity of the informants on appeal.

Although Defendant acknowledges in his “Jurisdictional
Statement” that docket number 19-85 was a writ application seeking
review of the alleged Brady violation addressed in his appeal, he fails
to address this court’s prior ruling in his brief on the topic. As noted
above, this court denied Defendant’s writ application on this issue,

3

finding no error in the trial court’s ruling. Defendant’s argument to this
court is the same argument presented in Defendant’s prior writ
application, and, as such, presents no new argument as to why this
court’s prior ruling should be considered clear error. Therefore, this
assignment of error lacks merit.

In brief, Defendant contends his sisters’ “apparent authority” is not clear

because they told Captain Secoy that the SD cards belonged to their brother, who

was a sex offender. Defendant contends it is not reasonable to conclude his sisters’

had authority to consent to a search of the SD cards. He likens this situation to that

of a landlord/tenant and notes that a right to privacy cannot be waived by a third

party simply because that person has a proprietary interest in the premises.

In Defendant’s 2019 writ application to this court, he argued that the SD cards

were taken without his permission in a landlord/tenant situation and his sisters,

having never looked at the cards, did not know a crime had been committed. This

illegal search then allowed officers to obtain a search warrant of his property which

produced incriminating evidence.

In State v. Bryant, 21-240 (La.App. 3 Cir. 12/22/21), 333 So.3d 495, the

defendant filed an emergency supervisory writ seeking review of the trial court’s

denial of his motion for mistrial. Previously, this court denied the writ application

finding no error in the trial court’s ruling. State v. Bryant, 20-69 (La.App. 3 Cir.

1/27/20) (unpublished opinion), writ denied, 20-171 (La. 1/28/20), 291 So.3d 1056.

On appeal, this court held:

Now on appeal, the State contends that our previous ruling on
Defendant’s writ application is the law of this case. We disagree. In
fact, it appears that the State’s argument is squarely at odds with the
statement of law given in Davis v. Jazz Casino Co., L.L.C., 03-276 (La.
6/6/03), 849 So.2d 497. There, the Louisiana Supreme Court explained
that

once a court of appeal declines to exercise its supervisory
jurisdiction by denying the writ, the court was without
jurisdiction to affirm, reverse or modify the judgment of
the trial court. Thus, any language in the court of appeal's
earlier writ denial purporting to find no error in the trial
court’s certification ruling is without effect.

4

Id. at 498. For this reason, the law-of-the-case doctrine is inapplicable
to this situation. We therefore must decide whether the trial court
abused its discretion in denying Defendant's motion for mistrial.

Bryant, 333 So.3d at 504.

Following the approach taken in Bryant, we will proceed with a review of the

trial court’s ruling on the motion to suppress.

At the hearing on the motion to suppress, Defendant’s sister, Jenee Dorr,

testified that on February 4, 2017, after having arranged to retrieve some furniture

from her parents’ home, she arrived and knocked on the door several times, but there

was no answer. At that time, the children of the deceased parents owned the home

except for Defendant because he had signed his portion over to Ms. Dorr the previous

day. However, the siblings were allowing him to live there. Ms. Dorr went to the

police department and explained that she had an appointment with her brother to

pick up some furniture. She had a key to the home, but could not get in, so she was

planning to break in. She testified that she was told by the police as long as she

owned the home she could enter in any way she wished. She ultimately entered the

home without Defendant’s permission.

When Ms. Dorr entered the home, her sister, Kim Diefenbach, was on the

floor, and Defendant was yelling. Ms. Dorr contacted the police department and

reported her brother had assaulted her sister. Defendant was arrested for assault, and

when he subsequently bailed out of jail, he returned to the home where his siblings

were removing certain items they had agreed to take. Defendant sent his friend Tina

in the house to retrieve some of his belongings. Ms. Dorr testified she took some

SD cards from Tina. Defendant sent Tina back in the home to again look for the SD

cards.

In her written statement on February 19, 2017, Ms. Dorr said when she told

Tina to give her the SD cards, Tina made her promise she would not tell Defendant

5

she gave them to her. Tina said she planned to tell Defendant she could not find

them. Tina pretended to look for them, then returned to the car, and she and

Defendant left. About fifteen minutes later, Tina returned with Tavia, Defendant’s

girlfriend, and told Ms. Dorr that Tavia wanted the SD cards because she was on one

of them. Ms. Dorr refused to give them to her but assured her she would not put the

pictures on the internet.

Later, Tavia’s sister attempted to retrieve the SD cards from Ms. Dorr for

Tavia, but she again refused to turn them over. Ms. Dorr gave the SD cards to the

Pineville police. She was asked if she recalled what her statement to police was

when she turned over this property, and she responded that she did not. The

following colloquy ensued:

Q Now, let me back up. You said you didn’t give them the cards
because your father had a lot of them, but at that point, you knew that
they were for him though. Not your father.

A No, I didn’t know that. Not until we were handed back cards that
had nothing on them. Because there were cards in my dad’s wildlife
camera, there were cards behind the computer desk. There were cards
all over the house.

Q Okay. So, as you got these SD cards, (inaudible). Did you look at
them?

A No.

Q If you thought they were your father’s, why not look to determine if
they were his?

A I didn’t want to do anything with them. And I didn’t have the
capability of looking at them. Remember, I’m from out of town.

Q But you know what an SD card is?

A I do. They are for cameras and computers.

Q And you know how you can pull them out of a camera into a
computer to –

A I don’t have – I didn’t have a computer available.

Q You didn’t think about taking them back home?

6

A No.

Q The cards with you?

A Nope.

Q So, your initial thinking was take them to the police?

A Take them to the police.

Q Why deliver those SD cards to the police?

A Because of all the things that my brother wanted out of that house,
he wanted two things. He wanted my dad’s truck keys and he wanted
those cards.

....

A (Reading) : The reason I took the SD cards from Tina was because
my aunt had told me and my sister that our brother had been hitting
porno sites on the internet. I wasn’t sure since he was a convicted sex
offender if he was allowed to do that. And since those SD cards were
the only thing he wanted out of the house, they must’ve had something
on them that he didn’t want anyone to see. I thought there may have
been downloaded images on them (end of reading).

Q But you never looked to see, did you?

A I did not.

When asked if she took this “stolen property” and gave it to the police, Ms.

Dorr responded, “I took property that was in my dad’s house that we all owned.”

She said she did not know any crimes had been committed at the point she delivered

the SD cards to police.

On cross-examination, Ms. Dorr explained that before her father died, he told

her sister she could have the bedroom furniture. Because Defendant had stopped

paying the mortgage, on February 3rd, he signed an act of donation giving Ms. Dorr

his portion of the house. On the day this paperwork was done, Ms. Dorr told

Defendant she would arrive at the residence the following day to pick up the

furniture. She found the SD cards at issue in the computer room2 in a brass plant

2
Ms. Dorr testified that the computer room was an “entranceway” from the back door, and
it was not “closed off.”
7

stand with an artificial plant sitting on them. On redirect examination, she again

explained that she suspected the cards may contain pornographic images of women,

and she was unsure whether Defendant should have internet access considering he

was a convicted sex offender. She did not suspect that the cards contained child

pornography.

Kim Diefenbach also testified at the motion to suppress hearing. Ms.

Diefenbach testified she was assaulted by Defendant on February 4, 2017. She stated

she was the one who decided to contact the police department about the SD cards.

Ms. Diefenbach said she did so because there were several red flags which made her

think the SD cards contained something that should not be there. However, she had

no specific knowledge of a crime. On cross-examination, she said she thought the

cards might contain “child pornography or whatever that he had downloaded off the

internet.” She said the reason she thought this is because Defendant had a history of

molesting her and other family members. On redirect examination, she testified they

turned over four SD cards that Defendant had hidden under the plant. More cards

later found in the house were left on the counter in the kitchen. She provided a

written statement to police on February 19, 2017, giving the details regarding the SD

cards belonging to her brother and his attempts to retrieve them from the home.

On cross-examination, Ms. Diefenbach confirmed that Defendant signed over

his portion of the parents’ estates after the 2015 judgment of possession had

originally granted ownership of the property to all the siblings.

Detective Miranda Collura of the Pineville Police Department viewed the

images on the SD cards at the direction of Captain Kenny Secoy. When asked if it

was normal procedure to search someone’s property without a warrant, Detective

Collura explained to her knowledge at that time, the cards “were in a home that

belonged to the people that brought them.” After she viewed them, she asked the

captain who brought them in, and he explained:

8

He explained it to me and stated that their brother had lived in the home
previously before it was foreclosed on and that, you know, he no longer
owned the home anymore and that he was a sex offender and that is, I
guess, the reason that they had cause for concern. I asked if he was a
registered sex offender at that point is when I got his name. He told me
he was not registered but he was supposed to be. And dealing with
what’s on the SD cards, that’s how I figured out the whole situation.

Detective Collura said she had no knowledge of a crime being committed, but

she started an investigation after viewing the SD cards. Because some of the clips

on the last SD card showed what appeared to be a video taken with a cell phone, she

spoke to Ms. Diefenbach and learned that Ms. Tavia Smading’s (Defendant’s

girlfriend) granddaughter would occasionally stay at Defendant’s home. The video

on the SD card was very dark, and the child in the video appeared to be asleep.

Further investigation revealed that Ms. Smading’s granddaughter was in

Defendant’s home at the time the video was taken. The child was interviewed at the

Advocacy Center, but she had no recollection of any events. After further

investigation, Detective Collura obtained a search warrant for the home where a

computer and other SD cards were obtained. According to Detective Collura, “all

of the same images that were on the SD card that had the child pornography on them,

and over a hundred other pictures of naked children were found on that computer.”

Not all photos met the definition of child pornography.

Detective Collura was asked whether, without the SD cards and the

information from Defendant’s sisters that he was a sex offender, there was anything

for her to investigate. The following colloquy ensued:

A If they had come to us and said they had a sex offender brother I
would have then went [sic] to our sex offender registry officer and
asked him if he had him registered. He wasn’t registered to talk to him
and find out why he wasn’t registered. And I don’t believe he was
supposed to have any type of computer.

Q Yeah, but simply arresting him for failure to register, clearly you
could have found that out just by looking at the computer at the station?

9

A Once we had his name and knew he was a sex offender living in
our area, we could have seen that he was not registered, yes, sir. But
we would have went [sic] to his home.

Q You could have arrested him for that.

A We could have arrested him for failure to register, yes, sir.

She agreed that failure to register does not prove Defendant had child

pornography and more investigation probably would have been needed before a

warrant to search his home could have been obtained. She said it depended on what

was seen when they were in the home, adding “because the door to where the

computer is is [sic] right there on the side, we would have seen that he had a

computer.” However, she agreed they would not have been there to search; the

original contact would be for failure to register. Detective Collura admitted she

viewed the SD cards without a warrant because she had no reason to believe “that

they didn’t come to us in a legal way.”

Captain Secoy testified that he was contacted by his sister-in-law, Karen

Atwood, regarding Defendant’s sisters finding the SD cards believed to be

Defendant’s in their parents’ residence. He did not speak with them directly.

The court, in ruling on the motion, noted that this was a private search

conducted by individuals of a home with no involvement by law enforcement. The

sisters discovered property in a home which was rightfully theirs, and their suspicion

regarding the property led them to turn it over to police. The court concluded, “The

information obtained by the police in regards to a search warrant that led to the

evidence in the house was based upon the probable cause from information provided

by private individuals.” Accordingly, the court denied Defendant’s motion to

suppress.

“A warrantless search may be valid even if consent was given by one without

authority, if facts available to officers at the time of entry justified the officers’

reasonable, albeit erroneous, belief that the one consenting to the search had

10

authority over the premises.” State v. Edwards, 97-1797, p. 11 (La. 7/2/99), 750

So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542 (1999). Detective

Collura’s testimony established that from information provided to her by Captain

Secoy, she believed the ladies, whom she did not know the names of, had obtained

the SD cards from a home belonging to them:

A That Monday after the weekend that the SD cards were turned
over to the police department when I came in, the captain in our
department, Captain Secoy, had given me the envelope and stated that
some ladies that were cleaning out their deceased parents’ house over
the weekend had come across some SD cards that they believed may
contain some explicit material and that they had turned them over to us.
And he asked me to look at them.

....

A It wasn’t until after I had already viewed them, realized what was
on them that I went to the captain that gave them to me and asked, who,
like the names and then tried to find out who it belonged to.

....

A The SD cards that were brought in – from the knowledge that I
had at that moment, were in a home that belonged to the people that
brought them. I didn’t have any reason to believe that they did not –
that the belongings in the house didn’t belong to them if the home was
their deceased parents’.

After she viewed the contents of the SD cards, she learned more information

from Captain Secoy:

A I asked the captain who brought them in. He explained it to me
and stated that their brother had lived in the home previously before it
was foreclosed on and that, you know, he no longer owned the home
anymore and that he was a sex offender and that is, I guess, the reason
that they had cause for concern. I asked if he was a registered sex
offender at that point is when I got his name. He told me he was not
registered but he was supposed to be. And dealing with what’s on the
SD cards, that’s how I figured out the whole situation.

Thus, at the time of Detective Collura’s search of the SD cards, her knowledge

was that two women had found the SD cards inside of their deceased parents’ home

which then belonged to them. Even assuming the consent was unauthorized, the

facts available to Detective Collura at the time she viewed the SD cards justified her

11

belief that the sisters had authority to consent to the search. Because consent is an

exception to the requirement that law enforcement obtain a warrant before

conducting a search or seizure, the trial court did not err in denying Defendant’s

motion to suppress.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in ruling evidence of four prior acts

would be admissible at trial pursuant to La.Code Evid. art. 404(B) because the

evidence was not relevant to the instant charges of pornography involving juveniles

and the probative value was substantially outweighed by the prejudicial effect it

would have at trial.3 The State notes that in addition to the evidence being admissible

under La.Code Evid. art. 404(B), La.Code Evid. art. 412.2 allows for the

introduction of evidence which indicates a lustful disposition toward children.

On May 24, 2019, the State filed a Motion to Introduce Evidence Pursuant to

Louisiana Code of Evidence Article 404(B)(1) asserting that Defendant had

committed two similar acts, the first being a 1991 charge of carnal knowledge of a

juvenile alleging he had sexual intercourse with a fourteen-year-old female child

(arrest date: August 10, 1991; victim’s date of birth: August 27, 1976). The charge

was later amended to two counts of contributing to the delinquency of a minor to

which Defendant pled guilty. The second act was three counts of aggravated rape

3
The State also filed a Notice of Intent to Introduce Evidence Pursuant to Louisiana Code
of Evidence, Article 412.2, seeking to introduce acts committed against his sisters spanning from
1966 through 1972, the 1991 incident in which he had sexual intercourse with a fourteen-year-old
female victim, and the three counts of aggravated rape. Although the State noted in its motion that
the Defendant was not entitled to a pretrial hearing on this motion, the Defense filed a motion
requesting a pretrial hearing. The court ordered the State to show cause on October 9, 2018, why
a pretrial determination on the admissibility of evidence intended to be introduced should not be
held. This matter was apparently continued and then brought up at the March 1, 2021 proceeding,
but the State passed on the art. 412.2 matter and proceeded only on the 404(B) issue. The art.
412.2 matter was then set for May 3, 2022.

At the March 21, 2022, proceeding, although there were comments indicating that the 412.2
motion had been heard and the issue was being preserved for review pursuant to Crosby, there is
no indication in the record before this court that the art. 412.2 motion was ruled upon.

12

of a nine-year-old child between 1999 and 2000 which resulted in Defendant’s guilty

plea to an amended charge of forcible rape and two counts of aggravated rape. The

motion indicated the State sought to introduce the evidence for all purposes proper

under the law, specifically including, but not limited to: motive, opportunity,

knowledge, identity, plan, intent, and absence of mistake or accident.

This motion was heard on March 1, 2021. The State’s intent was to use the

information to show opportunity because Defendant had access to children and took

advantage of them as well as plan, pattern, intent (his intent in touching the juvenile),

and knowledge (because he had prior convictions, he could not claim he was not

aware of what he was doing). The prosecutor noted that at the time of the 1991

incident, Defendant was thirty-three years old, and he had sex with a fourteen-year-

old juvenile. The defense argued that the acts were not similar in that they involved

Defendant having sexual intercourse with minors, whereas the sexual battery in the

present case did not; it simply involved a touching.4

The court ruled the prior convictions were for crimes that were associated with

the type of crime which Defendant was currently charged. It determined the

evidence met the standard of La.Code Evid. art. 404(B) and the probative value

outweighed the prejudicial effect. Specifically, the court found:

[404] (B) introduction of evidence the State need only a
sufficient showing of evidence in support of finding that the defendant
committed other crimes, wrongs, or acts. This evidence is a conviction
in Winn Parish and a docket number. And also a misdemeanor
conviction in Rapides Parish of the Bill of Information and minutes of
that. The court looks to see to determine whether that evidence
provides for an independent and relevant reason to show either motive,
opportunity, intent, preparation, plan, knowledge, identity, absence or
mistake or accident. The court has reviewed the evidence. They are
convictions involving crimes that are associated with the type of crimes
that the defendant is currently on trial for. The court also notes that it’s
the determination of whether that evidence would be excluded because
of it’s [sic] probative value as balanced against the prejudicial effect.
Whether it would be unfair for that evidence to be admitted in the trial.
The court is going to find that the evidence meets the standard for
4
There was no further information regarding the prior convictions and the instant offense
of sexual battery.
13

404(B). The State has shown sufficient similarities between two
convictions and the type of crime that the defendant is on trial for, they
show a similarity between the two. Also show that the probative value
outweighs any prejudicial effect in this matter and the court will not
deny it based upon that.

Louisiana Code of Evidence Article 404(B) states 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 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.

Louisiana Code of Evidence Article 403 provides:

Although 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.

Louisiana Code of Evidence Article 412.2 provides in pertinent part:

A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense 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 sexually assaultive behavior or acts which indicate a lustful
disposition toward children 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.

Although Defendant argues the prior acts are not relevant to his charges of

pornography involving juveniles, at the time of the pretrial rulings, prior to the entry

of his Crosby plea, Defendant was also charged with and proceeded to trial on a

charge of sexual battery of a minor. The bill of information reflected on or about

November 8, 2016, Defendant committed a sexual battery upon A.B., whose date of

birth is October 21, 2009, by intentionally touching the victim’s anus or genitals

using any instrumentality or part of his body without the victim’s consent.

14

We find it is not necessary to determine whether the acts which were the

subject of the State’s May 24, 2019 motion were admissible under La.Code Evid.

art. 404(B) as they were clearly admissible under La.Code Evid. art. 412.2, as

discussed below.

In State v. Mayeux, 19-369, pp. 6-7 (La. 1/29/20), __ So.3d __, cert. granted

on other grounds, __ U.S. __, 141 S.Ct. 225 (2020), the supreme court stated:

Finally, defendant contends the district court erred in admitting
evidence he abused and threatened his wife as well as his previous
romantic partners, which abuse included incidents of choking. The
court of appeal thoroughly examined these claims and we have little to
add to that court’s analysis, other than to note that [La.Code Evid. art.]
412.4 also applies here. . . .

This article was enacted by 2016 La. Acts 399, and amended to
encompass abusive behavior against dating partners by 2017 La. Acts
84, which amendment became effective on August 1, 2017 (before
defendant’s trial began on August 28, 2017). While the State did not
invoke Article 412.4 in the district court, it (as the prevailing party in
the evidentiary rulings) is not precluded from doing so now, provided
the State’s new invocation of the article does not require going outside
of the record. See State v. Butler, 12-2359 (La. 5/17/13), 117 So.3d 87,
89. Here, defendant’s previous abuse, including choking, of his spouse
and his dating partners was admissible under Article 412.4.

In State v. Dawson, 19-1612, pp. 14-17 (La.App. 1 Cir. 11/17/20), 316 So.3d

77, 88–89, writ denied, 21-217 (La. 5/4/21), 315 So.3d 222, the first circuit held:

In his final assignment of error, defendant claims the trial court
erred when it permitted the State to introduce evidence of a 1991
juvenile conviction in Mississippi for sexual battery of a victim under
the age of 14. Defendant argues the offense to which defendant pled
guilty is not similar in “time, location, or modus [operandi,]” “was
purely prejudicial,” and was introduced to “portray [defendant] as a bad
person[.]” Defendant concludes that the inclusion of this evidence was
not harmless, as it unfairly bolstered the State’s allegation that
defendant is a chronic sexual predator.

The State responds that the introduction of the Mississippi
prosecution was supported by [La.Code Evid. art.] 412.2(A), and that
the trial court did not err in admitting it into evidence. It also observes
defendant’s arguments citing [La.Code Evid. art.] 404(B) are not
relevant to the claim made. Further, even assuming any error, the State
argues the admission was ultimately harmless in light of the other
evidence presented at trial.

15

Before trial, the State filed notice that it intended to introduce
“lustful disposition” evidence in the form of a 1991 guilty plea where
defendant pled guilty to sexual battery after having been charged with
rape. The trial court denied defendant’s objection to its admission. The
indictment and guilty plea were admitted into evidence, over
defendant’s objection.

Generally, courts may not admit evidence of other crimes or bad
acts to show defendant is a man of bad character who has acted in
conformity with his bad character. [La.Code Evid. art.] 404(B)(1).
However, the State may introduce evidence of other crimes if the State
establishes an independent and relevant reason, i.e., to show motive,
opportunity, intent, or preparation, or when the evidence relates to
conduct which constitutes an integral part of the act or transaction that
is the subject of the present proceeding. [La.Code Evid. art.] 404(B)(1).
Even when the other crimes evidence is offered for a purpose allowed
under Article 404(B), the evidence is not admissible unless it tends to
prove a material fact at issue or to rebut a defendant’s defense. State v.
Taylor, 2016-1124 (La. 12/1/16), 217 So. 3d 283, 292. . . .

....

Louisiana Code of Evidence article 402 provides that “[a]ll
relevant evidence is admissible[.]” Under [La.Code Evid. art.] 403,
otherwise 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.” Evidence is deemed relevant if such evidence
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. [La.Code Evid. art.]
401.

Prior crimes differing from those at issue in a prosecution are still
probative to establish a defendant’s “lustful disposition” toward
children. See, e.g., Friday, 73 So. 3d at 927. It is not necessary, for
purposes of Article 412.2 testimony, for defendant to have been
charged, prosecuted, or convicted of the “other acts” described. State v.
Berry, 51,213 (La. App. 2nd Cir. 5/17/17), 221 So. 3d 967, 986, writ
denied, 2017-1146 (La. 12/17/18), 257 So. 3d 1260. Further, “in
enacting Article 412.2, the Legislature did not see fit to impose a
restriction requiring such evidence to meet a stringent similarity
requirement for admissibility.” State v. Wright, 2011-0141 (La.
12/6/11), 79 So. 3d 309, 317. See also State v. Luper, 2019-0489 (La.
App. 1st Cir. 11/15/19), 2019 WL 6045367, at 6 (unpublished)
(possession of soiled children’s diapers properly admitted to make the
inference of a sexualized view of young children). The burden on the
State at the instant trial regarding the prior acts was to prove them by a
preponderance of the evidence, not beyond a reasonable doubt as
required to obtain a conviction. State v. Harris, 2011-253 (La. App.
5th Cir. 12/28/11), 83 So. 3d 269, 278, writ denied, 2012-0401 (La.
8/22/12), 97 So. 3d 376. Finally, a trial court’s ruling on the
admissibility of the additional other crimes evidence will not be

16

disturbed absent an abuse of discretion. State v. Altenberger, 2013-2518
(La. 4/11/14), 139 So. 3d 510, 515 (per curiam); State v. Jackson, 2018-
0261 (La. App. 1st Cir. 11/2/18), 265 So. 3d 928, 939-40, writ denied,
2018-1969 (La. 4/22/19), 268 So. 3d 304. See also Wright, 79 So. 3d
at 316.

Here, the then sixteen-year-old defendant pled guilty to the
sexual battery of a juvenile female under the age of fourteen years old.
Though more details are not provided by the record, it is clear that the
age and gender of the victim in that case are squarely consistent with
the ages and gender of the three victims of the offenses for which he
was tried in the instant case. Moreover, even assuming arguendo that
the trial court erred, the effect of that error was rendered harmless by
the overwhelming evidence of guilt presented by the State. See State v.
Becnel, 2016-1297 (La. App. 1st Cir. 4/20/17), 220 So. 3d 27, 34, writ
denied, 2017-1023 (La. 3/9/18), 238 So. 3d 451 (observing that the
erroneous admission of other crimes evidence is subject to a harmless-
error analysis, which considers whether the jury’s verdict was “surely
unattributable to the error”). This claim is without merit.

Finally, in State v. Smith, 19-607, pp. 3-4 (La.App. 5 Cir. 1/21/20), __ So.3d

__, __, writ denied, 20-328 (La. 5/1/20), 295 So.3d 945, the court discussed the

prejudicial prong of the balancing test set forth in La.Code Evid. art. 403:

Any inculpatory evidence, however, is prejudicial to a defendant,
especially when it is probative to a high degree. As used in the
balancing test, “prejudicial” limits the introduction of probative
evidence of prior misconduct only when it is unduly and unfairly
prejudicial. 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. 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 (1/29/18), 235 So.3d 1104.

For purposes of [La.Code Evid. art.] 412.2, it is not necessary for
the defendant to have been charged, prosecuted, or convicted of the
“other acts” described. State v. Klein, 18-22 (La. App. 4 Cir. 8/22/18),
252 So.3d 973, 985, writ denied, 18-1569 (La. 4/15/19), 267 So.3d
1125. In fact, in State v. Harris, 11-253 (La. App. 5 Cir. 12/28/11), 83
So.3d 269, 280, writ denied, 12-401 (La. 8/22/12), 97 So.3d 376, this
Court held that evidence of a defendant’s prior rape of a juvenile, of
which he was acquitted, was admissible in a later prosecution for
aggravated rape of a juvenile. This Court found that the evidence of the
prior rape of the juvenile was not so prejudicial as to warrant exclusion
from trial and that the evidence was probative in its ability to show that
the defendant had a propensity to remove sleeping children from where
they lay and commit forced sexual offenses by using threats, thus
establishing a lustful disposition towards children. See also State v.
Kiger, 13-69 (La. App. 5 Cir. 10/30/13), 128 So.3d 552.

17

The prior sex offenses were properly found admissible by the trial court. The

prior offenses all involved Defendant having sexual intercourse with minor victims

while the current offense involved an intentional touching of a minor victim’s

genitals or anus without consent. Although the acts are different, they were all sexual

acts involving underage victims, and the prior acts clearly show Defendant’s lustful

disposition toward children. Further, there is no indication that the evidence of these

prior acts would have been unduly and unfairly prejudicial. Accordingly, the trial

court did not abuse its discretion in finding these prior acts would be admissible at

Defendant’s trial.

On March 9, 2022, the State filed a Notice of Intent to Introduce Evidence of

Other Crimes, Wrongs, or Acts, seeking to introduce evidence regarding the 2017

charge of second-degree battery of his sister which resulted in his 2021 guilty plea

to simple battery. The State contended that this offense started the chain of events

that ultimately led to the discovery of the child pornography. Additionally, the State

sought introduction of Defendant’s 2015 charge of failure to register as a sex

offender which was ultimately dismissed by the State. The State sought to introduce

this evidence for purposes proper under the law, including, but not limited to:

knowledge, preparation, plan, intent, opportunity, identity, and absence or mistake

or accident, in accordance with La.Code Evid. art. 404(B).

On March 21, 2022, prior to Defendant entering his Crosby plea, the court

considered the March 9, 2022 motion and ruled that the guilty plea to simple battery

was admissible to prove motive. The court ruled that the arrest for failure to register

as a sex offender was admissible as well, with no specific basis being given.

The only one of these two prior acts which Defendant complains of on appeal

is the 2017 simple battery of his sister. He argues that it is not probative of any

matter at issue in the case. The State contends that this offense, which occurred just

days before the sisters entered the subject property, “started the chain of events that

18

led to the Defendant’s arrest” and that the trial court properly ruled that the battery

conviction shows motive in preventing the sisters from entering the property.

We find this evidence was admissible in that “it relates to conduct that

constitutes an integral part of the act or transaction that is the subject of the present

proceeding.” La.Code Evid. art. 404(B). The battery sought to be introduced

occurred on February 4, 2017, when the first sister entered the house to retrieve

furniture. Defendant was arrested shortly thereafter and returned to the home after

bailing out of jail. The SD cards containing the pornography were located and turned

over to the police department that day. On the following Monday morning, the cards

were viewed at the police station and were found to contain child pornography.

Further investigation ensued from that point.

In State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, the supreme court

found the challenged evidence was an integral part of the act which was the subject

of the proceeding. The defendant’s conviction and sentence were reversed by this

court because the trial court admitted evidence that the defendant possessed

marijuana immediately after police found a handgun in his van, the act which led to

his charge and conviction of possession of a firearm by a convicted felon. This court

found the case was distinguishable from cases where the events could not be

separated from the crime charged and found the probative value was outweighed by

the prejudicial effect. The supreme court disagreed:

The events leading to defendant’s arrest began when the police
spotted a van parked in the middle of the street in “The Hill,” an area
in Opelousas known for drug trafficking. The defendant stood at the
opened door on the driver’s side of the vehicle; gathered around him
were five or six individuals familiar to the officers from their illegal
drug activity. As the group scattered at the approach of the officers
intent on investigating conduct they found “very suspicious” of street-
level drug trafficking, the defendant got back into the van and attempted
to leave the scene. He stopped short when the officers ordered him to
pull over, got out of the vehicle, stated that he “didn't have anything,”
and invited the officers to prove him wrong. The officers found on the
floorboard of the van a loaded .25 caliber semi-automatic handgun in a
small tray partially tucked under the passenger seat but otherwise

19

readily accessible to the driver of the vehicle. According to the officers,
the defendant immediately stated something to the effect that, “That's
my old lady’s gun. I just use it for my protection.” When the officers
asked whether he had any drugs on his person, the defendant at first
replied that he did not, but then pulled up his shirt to reveal a clear
plastic bag containing marijuana. The defendant removed the bag and
handed it over, explaining that it contained his personal “stash.”

In his own testimony, the defendant told jurors that both the van
and the gun belonged to his wife, that he had borrowed the vehicle to
run some morning errands, and that he had not realized she had placed
the weapon in the glove compartment of the vehicle until he braked
suddenly at the order of the officers and sent the gun spilling out onto
the floor board. The defendant testified that he had been shocked by the
officers’ discovery and informed them that his wife owned a store and
that she had the weapon for her protection. In her testimony, the
defendant’s wife confirmed that the gun belonged to her, that she used
it for protection in making bank deposits from the clothing store she
owned, and that she had simply forgotten to remove the gun from the
van when she returned home on the night before the incident.

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 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

20

willingness of jurors to draw the inferences, whatever they may be,
necessary to reach an honest verdict.” Id.

In this case, evidence of the defendant’s marijuana possession
contemporaneous with the police discovery of the firearm in his truck
provided not only narrative completeness to a case which began as a
narcotics stop but also formed an integral part of the context facts in
which jurors evaluated the state’s case for defendant’s exercise of
dominion and control over the weapon found under the passenger seat
of the van. The state presented additional opinion testimony from the
police that defendant had paraphernalia associated with drug trafficking
and that guns and drugs go “hand in hand.” Jurors need not have
credited any of that testimony, however, to conclude for themselves that
the officers’ disputed testimony about defendant’s spontaneous
admission he possessed his wife’s gun for his own protection appeared
fully consistent with the undisputed circumstances of the case that the
police had stopped the defendant in a high crime area in Opelousas in
possession of his own drug “stash.”

Given the probative value of these context facts, we need not
decide here whether integral act evidence presented under the authority
of La.C.E. art. 404(B) must invariably pass the balancing test of La.C.E.
art. 403. Cf. former R.S. 15:447 (“What forms any part of the res gestae
is always admissible in evidence.”); State v. Brown, 428 So.2d 438, 442
(La.1983) ( “[E]vidence of other crimes included in the res gestae is
admissible without balancing its probative value against the prejudicial
effect.”) (citations omitted); State v. Smith, 94–1502, p. 6 (La.App. 4th
Cir.1/19/95), 649 So.2d 1078, 1083 (“It is no longer true that whatever
forms part of the res gestae is admissible, and such evidence remains
subject to the [art. 403] balancing test.”); 1 McCormick on Evidence,
supra, § 190, p. BOD, n. 12 (“It seems preferable to say that this
evidence of ‘intertwined’ crimes may be admitted, since it does not run
afoul of the propensity rule, assuming that the balance of probative
value and prejudice favors admission and that the normal safeguards . .
. for dealing with other crimes evidence are observed.”). Unfair
prejudice to a criminal defendant “speaks to the capacity of some
concededly relevant evidence to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged.” Old
Chief, 519 U.S. at 180, 117 S.Ct. at 650. We think it clear that evidence
of defendant’s marijuana possession invited jurors to draw the
necessary inferences for their verdict not on the basis of his bad
character, otherwise revealed by evidence of his prior convictions for
the illegal discharge of a firearm, issuing worthless checks, and
receiving stolen property, but on the basis of his contemporaneous
conduct and statements accompanying the officers’ discovery of the
handgun in his wife’s van.

Id. at 1075-77.

As in Colomb, the battery at issue was an integral part of the act that is the

subject of this proceeding. It immediately preceded the discovery of the SD cards

21

and occurred during the course of events on the day in question. Further, there is no

indication that its inclusion at trial would have been unduly prejudicial.

Accordingly, the trial court did not abuse its discretion in ruling this evidence would

be admissible at trial.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are

affirmed.

AFFIRMED.

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