State of Louisiana v. Brian Anthony Porter

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-221

STATE OF LOUISIANA

VERSUS

BRIAN ANTHONY PORTER

***********

ON WRIT OF CERTIORARI FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 15-CR-417
HONORABLE SUZANNE M. DEMAHY, JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

REHEARING GRANTED;
WRIT GRANTED AND MADE PEREMPTORY.

M. Bofill Duhé
District Attorney
Nicole Burke
W. Claire Howington
Assistant District Attorneys
Louisiana, 16th Judicial
District Attorney’s Office
300 Iberia St., Ste. 200
New Iberia, LA 70560
(337) 369-4420
Counsel for Applicant:
State of Louisiana

Amanda Cannon
Hazel Coleman-Chavis
Attorneys at Law
16th JDC Public Defenders Office
215 West Saint Peter Street
New Iberia, LA 70560
(337) 365-4006
Counsel for Respondent:
Brian Anthony Porter

PERRY, Judge.

In this second degree murder case against Brian Anthony Porter (Defendant),

the State of Louisiana (State) has applied for rehearing on this court’s earlier denial

of its writ application which sought review of the trial court’s ruling on the

admissibility of other crimes evidence under La.Code Evid. art. 412.4. In its earlier

application, this court denied the writ as untimely. For reasons that follow, we grant

rehearing, grant the State’s writ application, and make it peremptory.

PROCEDURAL HISTORY

Defendant and Penny Porter (Penny) were married on May 3, 2013. In the

first year of their marriage, the police were dispatched to disturbances at the

residence of Defendant and Penny on October 4, 2013, January 26, 2014, and April

17, 2014.1 A bill of information, charging Defendant with domestic abuse battery

for the October 4 incident was brought; however, the record does not show the

disposition of that charge. A second bill of information charging Defendant with

domestic abuse battery, first offense, and resisting arrest for the January 26 incident

was filed; Defendant was convicted on November 12, 2014, on both charges. As to

the April 17 incident, a third bill of information was filed against Defendant on May

15, 2014, charging Defendant with domestic abuse battery by strangulation and

aggravated assault. At the time of Penny’s stabbing death on December 12, 2014,

at her residence, this third bill of information had not yet come to trial.

On April 15, 2015, a grand jury indicted Defendant for the second degree

murder of his wife, Penny.2 Shortly thereafter, the State filed notice of its intent to

1
The circumstances of each disturbance will be detailed later in the opinion.

2
Prior thereto, on April 7, 2015, the State filed a bill of information charging Defendant
with one count of manslaughter, a violation La.R.S. 14:31. After the grand jury indicted Defendant
with one count of second degree murder, the State dismissed the earlier filed manslaughter charge.

use other crimes evidence and moved for a pretrial determination of the admissibility

of the same, citing to La.Code Evid. art. 404(B). Within days of that notice, the

State amended its notice of intent to show it intended to submit the other crimes

evidence under La.Code Evid. art. 412.4, specifically addressing evidence of similar

crimes, wrongs, or acts in domestic abuse cases.

Over the course of two days of hearings on October 25, 2018, and November

19, 2018,3 the trial court found the incident that occurred on October 4, 2013, was

inadmissible. It also determined that the incident that occurred on January 26, 2014,

would only be admissible to refute a claim of self-defense should Defendant make

such an assertion. Finally, the trial court concluded that the incident that occurred

on April 17, 2014, was admissible.

On March 21, 2019, the State filed a writ application with this court, seeking

supervisory review of the trial court’s ruling which determined the admissibility of

other crimes evidence. After reviewing the State’s writ application and all appended

documents, this court denied the State’s application as untimely filed. After

referencing Uniform Rules—Courts of Appeal, Rule 4-3 which requires that any

motion to extend the return date must be filed with the trial court within the original

return date or one previously timely extended, we stated:

The trial court set the original return date for January 18, 2019. The
State filed its motion for an extended return date on February 15,
2019, which was nearly a month after [January 18, 2019], the original
return date. The State’s motion for an extended return date contained
no explanation of why it was unable to timely seek an extension of
the original return date. Additionally, the State neither alleged nor
showed there were any additional motions for or grants of a return

3
Although the grand jury indicted Defendant on April 15, 2015, and the State filed its
motion seeking the use of other crimes evidence shortly thereafter, the hearing on this matter was
delayed due to potential conflicts of representation between a former public defender and his
subsequent employment with the district attorney’s office. Ultimately, the Louisiana Supreme
Court resolved this potential conflict, and this matter proceeded without the necessity of recusal
on the part of the Sixteenth Judicial District Attorney’s Office.
2

date extension. Therefore, the State’s writ application was untimely
filed on its face.
The State then timely filed an application for rehearing.
REHEARING
In its application for rehearing, the State claimed its writ application was

timely filed and explained it had failed to attach an additional return date order which

set February 18, 2019, as an interim return date. The State then attached a copy of

the previously missing return date order. Our review of this order shows the

following: (a) a handwritten notation, initialed by the trial court, striking through the

original January 18, 2019, return date; and (b) a replacement return date of February

18, 2019, was set. Although neither the trial court’s initials nor the changed return

date is dated, the ruling, stamped as having been filed on December 18, 2018, is well

before the original return date. Because the State filed its subsequent motion seeking

an extended return date on February 15, 2019, prior to the February 18, 2019, return

date, the trial court properly extended the return date to March 20, 2019. Therefore,

because the State’s application for supervisory review was postmarked March 20,

2019, the new documentation shows the State timely filed its writ application with

this court.

In instances such as this, where an original writ application has been denied

as untimely based upon a lack of proper documentation and that documentation is

subsequently provided in a timely filed application for rehearing, we find it proper

to grant rehearing to address the merits of the State’s claim.

STATEMENT OF FACTS

As stated earlier, the State sought to admit evidence of three4 previous

incidents of domestic violence between Defendant and Penny in its prosecution of

4
The State’s motion originally sought inclusion of a fourth alleged incidence of domestic
violence. It alleged that on June 14, 2014, Defendant hit his wife in the mouth and pushed her out
3

Defendant for second degree murder. In support of its motion, the State presented

the testimony of the investigating officers of each incident, as well as photographic

evidence of Penny’s injuries, and the transcript of Defendant’s trial involving the

incident of January 26, 2014.

Lance Laviolette (Mr. Laviolette) was the first witness to testify about the

incident of October 4, 2013. Although no longer a police employee, Mr. Laviolette

was an employee of the St. Martinville Police Department in October 2013. At that

time, Penny, who was married to and living with Defendant on Denier Street in St.

Martinville, came to the police department to pursue domestic violence charges

against Defendant for the incident of October 4.5 Mr. Laviolette took Penny’s

statement, photographed her injuries, and interviewed Defendant.

Penny stated that the argument between her and Defendant concerned

Defendant’s employment. As the argument ensued, Defendant pushed her into a

dresser, creating bruises which were visible to Mr. Laviolette. At that time, Mr.

Laviolette photographed the bruises on Penny, and those photographs were

introduced into evidence 6

Mr. Laviolette interviewed Defendant. The Defendant admitted he pushed

Penny, but claimed she initiated the violence by hitting and slapping him first. Mr.

Laviolette did not observe bruises on Defendant’s body. Subsequently, Mr.

Laviolette arrested Defendant for domestic abuse.

of the car. There is no mention of this contention either in the hearing or the trial court’s ruling at
the conclusion of the hearing. Accordingly, this incident is not before us.
5
Officer Perry of the St. Martinville Police Department was the investigating officer who
visited the scene of the incident. Although he generated the initial police report, he did not testify
at the hearing on the State’s motion.

6
The State attached those photographs to its writ application. These photographs are grainy
and in black and white; thus, the bruising is not discernible. Because the photographs focus on
Penny’s throat and neck, it appears that the bruises are located there.
4

The State next called Jordan Robeaux (Deputy Robeaux) to testify about the

incident of January 26, 2014. At the time of the incident, Deputy Robeaux, now

employed with the St. Johns Parish Sheriff’s Office, worked with the Iberia Parish

Sheriff’s Office. On January 26, 2014, he was dispatched to Mike’s Inn Hotel in

New Iberia, where Penny and Defendant were living, because a female reported that

her husband had attacked her.

Deputy Robeaux testified that he met Penny when he arrived; she was very

upset and claimed her husband physically attacked her. He observed a red

discoloration on the side of her neck along with fresh scratch marks. Shortly after

law enforcement went to the location, Defendant became very irate, and a scuffle

between Defendant and law enforcement ensued. Defendant was transported to the

hospital because, after Defendant was handcuffed, he lost his footing on the way to

the police unit and hit his face on the ground. Deputy Robeaux was unable to obtain

a statement from Defendant at that time because Defendant was uncooperative.

Ultimately, law enforcement arrested Defendant for domestic abuse battery,

resisting an officer, and disturbing the peace by profanity. After conducting a trial,

the trial court found Defendant guilty of domestic abuse battery, first offense, and

resisting an officer. The State entered the misdemeanor trial transcript into evidence

in support of its motion to present other crimes evidence at Defendant’s second

degree murder trial.

The State called Brandon Blood (Officer Blood), a police officer employed

by the Broussard Police Department, as a witness, who was involved in the incident

of April 17, 2014. On that date, Officer Blood was a patrolman working for the

Iberia Parish Sheriff’s Office. Officer Blood testified that, on April 17, 2014, 9-1-1

received a hang-up call. According to 9-1-1 protocol, Officer Blood was dispatched

5

to the address that originated the call, 100 West Santa Clara.7 Officer Blood and his

partner walked the area to determine if they could hear or see anything. They

eventually heard a woman arguing through a closed door. They then listened for a

while to determine whether everything was okay.

Officer Blood said that they heard a male making sexual advances while the

woman started to say things like, “get off of me,” and, “don’t touch me.” The

officers knocked on the closed door for the purpose of preventing a physical

altercation. Defendant and his wife opened the apartment door. Penny had bruises

around her neck that were caused either by hands or by a rope. Penny also had marks

on her legs, feet, and toes; one of her toes was cut. Officer Blood identified the

photographs he took of Penny on April 17, 2014, and the State introduced those

pictures into evidence.8 Defendant was unmarked. After speaking with Defendant,

Officer Blood arrested him for domestic abuse battery by strangulation and for

aggravated assault. The aggravated assault arose because the officers found a knife

in the bathroom.

Officer Blood identified State’s Exhibit Number 4 as photographs of

Defendant and the knife on the night of the altercation. The prosecution then

introduced State’s Exhibit Number 4 into evidence. State’s Exhibit Number 4

consists of two photographs of a restroom and two photographs of Defendant.9

On cross-examination, Officer Blood said that Defendant denied that there

was any problem when he answered the door and further denied injuring his wife.

7
The record provides no more specificity on the Santa Clara address.

8
Once again, the poor quality of the black and white photocopies makes it difficult to
discern any details of the bruising, but State’s Exhibit Number 3 clearly shows a cut along the
length of Penny’s second toe.

9
The poor quality of the images prevents us from discerning the knife that was purportedly
in the bathroom photos. Also, the grainy images prevent us from determining whether Defendant
had any bruises or injuries to his head or neck, which are the only body parts visible in the second
pair of photographs.
6

Nevertheless, Penny explained to Officer Blood that Defendant was responsible for

her injuries and said Defendant had cut her toe with the knife.

Finally, the State called Deputy Joseph Carl Hardy (Deputy Hardy) to testify

regarding Penny’s murder on December 12, 2014, which is the incident for which

Defendant is currently being prosecuted. On December 12, 2014, Deputy Hardy,

who was employed with the Iberia Parish Sheriff’s Office, Bureau of Investigation,

Homicide Division, served as the lead detective in Penny’s murder investigation.

According to Deputy Hardy, Defendant drove to the St. Martinville Police

Department, turned himself in, and confessed to killing his wife. After Defendant

turned himself into police and confessed to the murder, law enforcement entered

Defendant’s home and found Penny deceased in the restroom of her residence; she

had been stabbed to death.

At the conclusion of the two evidentiary hearings, the trial court stated:

[T]here is some issue with regards to potential relevance. So, with
regards to the October 4, 2013[,] incident[,] which took place in St.
Martin Parish, although there was allegations of domestic abuse, I do
not feel that there was a showing that that allegation of 2013 is relevant
to our instant matter of December 12, 2014. Any admission in that
alleged offense would be highly prejudicial to the defendant, so it does
not overcome the standard under 403.

With regard[s] to the January 26, 2014[,] incident-what was he
actually convicted of?

MISS BURKE:

He was convicted of Domestic Abuse Battery.

....

It was a misdemeanor First.

THE COURT:

With regards to the January 26, 2014, if the defendant argues
self-defense in this case, I think that the January 26, 2014[,] is
admissible because it would be relevant to show the history between
Miss Penny and Mr. Brian. . . .

7

....

So, with regards to the 2014, at this time I’m going to have to
table it, however, if at any point in time they bring up allegations of
self-defense, that will be admissible.

....

And if they argue something-so you won’t be allowed to use it in
the opening. I mean, she may bring up something that’s in her opening
statement. Once she opens the door, even if she brings it up in a cross
examination, you will be allowed to use that conviction and the
information.

With regards to the April 17, 2014[,] incident, because the
allegation is of Aggravated Assault with a weapon, with a knife, and if
I remember correctly, the instant offense is a stabbing in the restroom
of the residence . . . .

....

Therefore, I find that the incident from April 17, 2014[,] does
have some relevance to our current offense, and although it’s
prejudicial to the defendant, I don’t find its so prejudicial to him that it
outweighs the standard, so I’m going to allow the incident from April
17, 2014[,] to be admitted at trial. Obvious[ly,] we will have some
instructions for the jury, both pre-trial and before deliberations with
regards to how they’re supposed to consider that evidence.

DISCUSSION

The State argues, “The trial court abused [its] discretion in limiting the

admissibility of previous incidents of domestic violence between the parties under

La.Code Evid. Art. 412.4.” The prosecution also contends, “To the extent that the

trial court ruled pursuant to La.Code Evid. Art. 404(B), the trial court abused [its]

discretion in limiting the admissibility of previous incidents of domestic violence

between the parties.” The prosecution maintains all three of the prior incidents of

domestic violence were admissible under both La.Code Evid. arts. 404(B) and 412.4

without waiting for the defense to open the door for their introduction. The State

claims that all the other crimes evidence is relevant and that the probative value of

the evidence outweighs any danger of unfair prejudice. The prosecution asserts that

8

all three of the prior offenses “are relevant to show the volatile nature of the

defendant’s relationship with [] Penny as well as the continuing nature and pattern

of domestic violence.”

“A district court’s ruling on the admissibility of other crimes evidence will

not be overturned absent an abuse of discretion.” State v. Taylor, 16-1124, 16-1183,

p. 18 (La. 12/1/16), 217 So.3d 283, 296. “[E]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is

affected[.]” La.Code Evid. art. 103(A). “‘Relevant evidence’ means evidence

having 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. “All relevant evidence is admissible, except

as otherwise provided by the Constitution of the United States, the Constitution of

Louisiana, this Code of Evidence, or other legislation. Evidence which is not

relevant is not admissible.” La.Code Evid. art. 402. “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.” La.Code Evid. art. 403.

Unless its probative value is substantially outweighed by the danger of unfair

prejudice, a defendant’s prior violent behavior against a spouse is admissible in the

trial for more recent abusive behavior against the same spouse. In that regard,

La.Code Evid. art. 412.4 provides, in pertinent part:

A. When an accused is charged with a crime involving abusive
behavior against a family member, . . . evidence of the accused’s
commission of another crime, wrong, or act involving assaultive
behavior against a family member, . . . 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.

....

9

C. This Article shall not be construed to limit the admissibility
or consideration of evidence under any other rule.

D. For purposes of this Article:

(1) “Abusive behavior” means any behavior of the offender
involving the use or threatened use of force against the person or
property of a family member.

....

(3) “Family member” means spouses, former spouses, parents
and children, stepparents, stepchildren, foster parents, and foster
children.

The prior assaultive acts, wrongs, and crimes are also admissible to prove

motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of

mistake or accident:

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.

La.Code Evid. art. 404(B).

Other than cases discussing the ex post facto application of La.Code Evid. art.

412.4,10 there is no published jurisprudence discussing the issue now before this

court. Therefore, cases discussing other crimes under La.Code Evid. art. 404(B)

provide the only guidance on the issue of relevance and on the balance sought

between probative value and the danger of unfair prejudice.

10
See e.g., State v. Smith, 17-661 (La.App. 4 Cir. 1/10/18), 237 So.3d 29 (holding that the
application of La.Code Evid. art. 412.4 was not violative of the ex post facto clause); in accord,
State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 364 (holding that La.Code Evid. art.
412.2 did not constitute an ex post facto violation; its provisions did not alter the amount of proof
required in the case as it merely pertained to the type of evidence which may be introduced).
10

In State v. Mitchell, 18-326, pp. 6-8 (La.App. 5 Cir. 12/27/18), 263 So.3d 967,

973, the fifth circuit held that, under La.Code Evid. art. 404(B), other incidents of

domestic violence between the defendant and the victim were admissible to

demonstrate their volatile relationship and to establish a pattern of domestic abuse

and stated the following:

This Court has consistently upheld the admission at trial of similar other
crimes evidence. For example, in State v. Adams, 11-980 (La. App. 5
Cir. 4/24/12), 89 So.3d 435, 445, writ denied, 12-1629 (La. 4/19/13),
111 So.3d 1027, this Court found that the trial court did not err in
allowing the admission of evidence of five instances of domestic abuse,
battery, and threats involving the defendant and the victim, who had
been involved in a romantic relationship, pursuant to La.C.E. art.
404(B)(1). This Court determined that the other crimes evidence was
substantially relevant for showing the defendant’s motive for the
charged offenses. Further, this Court noted that the State could not have
placed the circumstances of the offenses in their proper context without
reference to the nature of the relationship existing between the victim
and the defendant. In addition, this Court determined that the primary
purpose of the evidence was not to prove the defendant’s bad character
but to illustrate the volatile nature of his relationship with the victim.

In State v. Marshall, 13-233 (La. App. 5 Cir. 10/30/13), 128
So.3d 1156, 1161, this Court found that the defendant’s prior acts of
domestic abuse against the victim were independently relevant to show
the volatile nature of their relationship as well as the defendant’s
motive. This Court further noted that the State could not place the
circumstances of the offense in their proper context without reference
to the nature of the relationship existing between the defendant and the
victim. See also State v. Granger, 103 So.3d at 591-92, and State v.
Cotton, 07-782 (La. App. 5 Cir. 2/19/08), 980 So.2d 34, 44, writ denied,
08-603 (La. 10/3/08), 992 So.2d 1010.

Likewise, in the instant case, we find that the prior incidents of
domestic abuse between defendant and the victim were highly relevant
to show defendant’s motive for committing the crime. Defendant
himself indicated that he became angry over his belief that the victim
was cheating on him. Further, his prior acts toward the victim placed
the shooting on December 2, 2016, in its proper context and
demonstrated to the jury the nature of the parties’ relationship. Also,
the purpose of the evidence was independently relevant to illustrate
their volatile relationship and the pattern of abuse, and thus, the
probative value outweighed the prejudicial effect. It is also noted that
the trial judge gave a limiting instruction to the jury prior to its
deliberation.

11

Based on the foregoing, we find no abuse of discretion in the trial
court’s admission of the prior incidents of domestic violence.

The Louisiana Supreme Court has likewise held prior incidents of domestic

abuse between the defendant and the victim were admissible under La.Code Evid.

art. 404(B) despite any remoteness of time:

Logically, this [other crimes] evidence must have substantial
relevance independent from showing defendant’s general criminal
character in that it tends to prove a material fact genuinely at issue. The
trial court in its gatekeeping function determines the independent
relevancy of such evidence and balances its probative value against its
prejudicial effect. La.Code Evid. art. 403; Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988).
“In this analysis, the court seeks to answer the question: Is this
evidence so related to the crime on trial or a material issue or defense
therein that, if admitted, its relevancy will outweigh the prejudicial
effect, which the defendant will necessarily be burdened with?” [State
v.] Garcia, 09-1578 at p. 55, [(La. 11/16/12),] 108 So.3d [1] at 39. Its
answer to this question and corresponding ruling on the admissibility
of the additional other crimes evidence will not be disturbed absent an
abuse of discretion[.]

As evident from its written and oral reasons, the trial court herein
denied the State’s motions based on the remoteness of the various
offenses to the charged offense. However, we have previously stated:

The fact that the other acts or crimes happened some
time before the offense for which the defendant is on trial
is not sufficient, in and of itself, to require the exclusion of
the evidence. Remoteness in time, in most cases, is only
one factor to be considered when determining whether the
probative value of the evidence outweighs its prejudicial
effect. Generally, a lapse in time will go to the weight of
the evidence, rather than to its admissibility.

....

. . . [T]he time between the other crimes evidence
and the offense charged is but one factor to be considered
when balancing probative value, prejudicial effect, and
relevancy. Length of time between the offenses should not
exclude otherwise admissible evidence unless the lapse
strips the testimony of probative value. While there must
be some connexity between the crime charged and the
other acts or crimes, the mere passage of time will not
necessarily defeat admissibility.

12

State v. Jackson, 625 So.2d 146, 149-51 (La.1993). Accordingly, while
we acknowledge the trial court’s broad discretion in this regard, we find
it abused its discretion by limiting its evaluation strictly to remoteness.

As Garcia noted, our jurisprudence has long held evidence of
other crimes is admissible if the State establishes an independent and
relevant reason for its admission. The State herein argues (1) the
evidence of defendant’s prior incidents has independent relevance to
establish knowledge, identity, and absence of mistake or accident in
connection with the present case; (2) the credibility of the victim and
the defendant is a genuine issue to be contested at trial; and (3) the
evidence rebuts and/or negates the defendant’s contention the incident
never occurred or alternatively, he was acting in self-defense.

In this regard, we note, in the November 1988 incident,
defendant allegedly battered his pregnant wife and then attempted to
take their child physically from her, threatening to kill her if she did not
relinquish the child. According to the State, these allegations mirror
the March 2010 incident in which defendant allegedly battered his wife
and took their child from her. It argues these similarities, in turn, make
the likelihood the March 2010 incident happened accidentally or never
happened so remote as to rebut any such defenses as well as to negate
any contention by the accused that he acted in self-defense.
Furthermore, coupling the two incidents with the 1992 incident, the
State posits there are three distinct allegations of domestic violence--
two with prior wives and one with a child--all three resulting in the
defendant taking or attempting to take his child from his victims, which
further refute the defenses available to the defendant. Thus, the State’s
intent to introduce these prior offenses to establish[] defendant’s pattern
of domestic abuse goes directly to rebut defenses defendant may raise
at trial and demonstrates their independent relevancy besides merely
painting defendant as a bad person. It follows, therefore, the trial court
should have considered the independent relevancy of this evidence,
rather than outright excluding same based merely on remoteness.

Regarding the various messages and posts, the State argues
defendant’s statements carry the narrative momentum of his actions in
the context of domestic violence. According to the State, the effects of
defendant’s coercive behavior as shown by his statements are part of
one continuous transaction of domestic violence and should be viewed
as a single and continuing entity, including, but not limited to,
defendant’s attempting to manipulate the victim’s behavior by
suggesting his own suicide and how that would affect the victim’s
daughter as well as threatening to cut off her phone. While these
statements were apparently regarded as part and parcel of an ongoing
divorce dispute by the trial court, we note the trial in the instant case
involves domestic violence, psychological abuse, and coercive
behavior, as allegedly exhibited by defendant on three separate
occasions, which is an integral part of the continuing nature and pattern
of domestic violence. See Hernandez v. Ashcroft, 345 F.3d 824, 836-

13

37 (9th Cir.2003)(discussing “cycle of violence” within abusive
intimate relationships).

Moreover, contrary to the trial court’s reasoning, the mere fact
this criminal conduct occurred after the underlying offense does not
preclude its admission or detract from its relevance in regards to the
numerated exceptions of La.Code Evid. art. 404(B). Our most recent
decision illustrating this principle is State v. Lee, 05-2098 (La.1/16/08),
976 So.2d 109, in which the State sought the death penalty for Charlotte
Pace’s murder that occurred on May 31, 2002, and relied heavily upon
the attack on Diane Alexander that occurred on July 9, 2002, Pamela
Kinamore’s murder that occurred sometime between July 12-16, 2002,
Trineisha Colomb’s murder that occurred around November 21, 2002,
and Carrie Yoder’s murder that occurred sometime between March 3-
13, 2003, to prove its case in the guilt phase of that capital murder trial.
Therefore, the evidence of defendant’s subsequent criminal conduct
should likewise have been evaluated in light of the State’s purpose for
its admission and not excluded merely because of its temporal
remoteness to the underlying offense.

Accordingly, we vacate the trial court’s denial of the State’s
motions to introduce other crimes evidence. . . .

State v. Altenberger, 13-2518, pp. 8-11 (La. 4/11/14), 139 So.3d 510, 515-17

(footnotes omitted) (citations omitted).

In the present case, the State seeks to introduce evidence to show there were

three incidents of domestic violence involving police intervention, those incidents

were spaced approximately three months apart for a period of nine months, and these

occurred less than eight months prior to Penny’s murder.

The trial court rejected the first incident, which occurred on October 4, 2013,

as being irrelevant. In relation to that offense, Penny complained Defendant pushed

her into a dresser, and the evidence showed Defendant’s actions included attempted

strangulation because Penny’s injuries involved bruises on her neck.

The trial court ruled the second incident would only be admissible to rebut

any self-defense claim should Defendant raise that defense. The second reported

offense occurred on January 26, 2014, and Penny’s bruises and scratches to her neck

were similar to those observed in the first offense. In addition, Defendant violently

14

resisted the officers who responded to the call. This incident resulted in Defendant’s

conviction for first offense domestic abuse battery on November 12, 2014, which

was exactly one month prior to Penny’s murder. At sentencing for that conviction,

the State pointed out Defendant had two other domestic abuse charges pending; one

was a felony and one was a misdemeanor, and both charges were also for allegations

of violence against Penny. After consideration of the arguments of counsel, the

sentencing court imposed a six-month suspended sentence with two years of

supervised probation plus various fines and fees for the conviction.

The trial court ruled the third incident, which occurred on April 17, 2014, was

admissible under La.Code Evid. art. 412.4. This was the time when officers

overheard what was going on, including an attempted sexual battery or rape. Penny

again sustained bruising around her neck, and Penny also alleged Defendant stabbed

her foot, and contended that her cut toe supported her allegation. The involvement

of the knife seemed to be the tipping point for the trial court in its determination that

the April 17, 2014, offense was more probative than unfairly prejudicial.

We find the trial court’s ruling that the incident of October 4, 2013, was

irrelevant and that the incident of January 26, 2014, was only admissible to rebut

any claim of self-defense constitutes an abuse of discretion. Both are clearly relevant

as prior incidents of domestic abuse between the parties. Considered altogether, the

evidence of the prior offenses is highly probative to establish that there was a volatile

relationship between the couple, that there was a pattern of abuse, and that the level

of violence escalated. The October 2013 incident resulted in bruising to Penny’s

neck, the January 2014 incident resulted in bruising and scratches to Penny’s neck,

and the April 2014 incident resulted in bruising and a knife wound. Moreover, the

conviction for the January 2014 incident occurred exactly one month prior to

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Penny’s murder. The incidents also establish Defendant has a pattern of denying

accountability or claiming self-defense.

All relevant evidence is prejudicial. The more relevant the evidence is, the

more prejudicial it is to the defense. The courts are only to guard against the danger

of unfair prejudice. Louisiana Code of Evidence Article 412.4 allows the admission

of other incidents of domestic abuse for any relevant purpose (including the

defendant’s character and his acts in conformity therewith) subject only to the

balancing test established by La.Code Evid. art. 403.

After carefully reviewing the evidence in light of La.Code Evid. art. 403 and

La.Code Evid. art. 412.4, we find the probative value of the evidence outweighs any

danger of unfair prejudice to Defendant. Thus, we find the trial court abused its

discretion, grant the State’s writ application, rule the incidents of October 4, 2013,

and January 26, 2014, admissible for any relevant purpose, and remand the matter

for further proceedings in conformity with this court’s ruling.

REHEARING GRANTED.
WRIT GRANTED AND MADE PEREMPTORY.

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