Opinion
NO. 2013 KA 1893
05-02-2014
STATE OF LOUISIANA v. JAMES C. GRAHAM
Kevin V. Boshea Metairie, Louisiana Counsel for Defendant/Appellant James C. Graham Walter P. Reed District Attorney Covington, Louisiana Kathryn W. Landry Baton Rouge, Louisiana Counsel for Plaintiff/Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 525785
The Honorable Allison Penzato, Judge Presiding
Kevin V. Boshea
Metairie, Louisiana
Counsel for Defendant/Appellant
James C. Graham
Walter P. Reed
District Attorney
Covington, Louisiana
Kathryn W. Landry
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
The defendant, James C. Graham, was charged by bill of information with second degree battery of Frank Tardo, a violation of La. R.S. 14:34.1. The defendant pled not guilty, but was later found guilty by a unanimous jury. The trial court denied the defendant's motions for new trial and post-verdict judgment of acquittal. He was sentenced to five years at hard labor with credit for time served. The defendant then moved for reconsideration of the sentence, but the motion was denied. He now appeals, contending the evidence was insufficient to support the verdict, the trial court imposed an unconstitutionally excessive sentence, and the trial court improperly admitted other crimes evidence. For the following reasons, we affirm the conviction and sentence.
FACTS
The victim, Frank Tardo, testified at trial, and indicated that at the time of the incident, he was sixty years old. Mr. Tardo once owned a heating and air-conditioning business, but in 2009, became disabled due to rheumatoid arthritis and fibromyalgia. In March of 2011, he and his family leased and moved into a town home in Covington, Louisiana. Soon after, Mr. Tardo met the defendant, who was his next-door neighbor. Mr. Tardo testified that the defendant knew of his health conditions, as the two had conversed about Mr. Tardo's disability a few months before the attack. In the evening of August 11, 2012, Mr. Tardo had taken a nap after he and his wife Jennifer had returned from a road trip to Bay St. Louis, Mississippi.
He testified that when he awoke, he was informed by his wife of a confrontation between her and Ms. Julie Steinhauer, the defendant's girlfriend. Mrs. Tardo informed Mr. Tardo that Ms. Steinhauer came over while he was sleeping and accused them of calling the police to the defendant's residence. After discussing the incident with his wife, Mr. Tardo wanted to speak to the defendant to determine what actually took place. He described his demeanor as confused and concerned, but not wanting to start a confrontation. Mr. Tardo stated he was not too concerned about approaching the defendant, because the defendant had never been violent with Mr. Tardo. Specifically, Mr. Tardo believed he and the defendant to be "cordial neighbors," and even though he had observed the defendant drinking on previous occasions, Mr. Tardo testified he was not fearful for his life.
Mr. Tardo testified he approached and knocked on the front door of the defendant's town house. An individual known to Mr. Tardo as Brian opened the door. Mr. Tardo had been introduced to Brian by the defendant, and he had observed Brian at the defendant's town home on several previous occasions. Brian immediately opened the door, and Mr. Tardo asked if the defendant was home. Mr. Tardo testified that Brian's response was, "[y]es, he's upstairs. Come on in." Mr. Tardo remembered going inside, but his next memory was being seated on a kitchen stool, with the defendant talking to him. Mr. Tardo recalled the defendant saying "I can continue this and kill you unless you want to tell me the truth."
At that point, Mr. Tardo knew something happened, as he recalled significant pain and thinking he had been beaten up. After this recollection, Mr. Tardo's next memory was that of being in the emergency room receiving stitches in his eyelids or eyebrows. He recalled pain in his head and face. Mr. Tardo testified he has never started a fight and has no recollection of having to defend himself Mr. Tardo recalled being told by medical personnel that he sustained a broken nose, a concussion, and fractured eye sockets. Following the attack and his subsequent treatment, Mr. Tardo rated his pain as "10 plus." He farther reported difficulty speaking, eating solid food, and performing simple, daily activities. Mr. Tardo was also concerned with his vision in his left eye as it was "full of blood."
Jennifer Tardo also testified at trial She confirmed Mr. Tardo's description of their day's activities. While in her garage, she noticed Julie Steinhauer walking into her driveway. Ms. Steinhauer questioned Mrs. Tardo in the garage about whether she "called the cops on us." Mrs. Tardo informed Ms. Steinhauer that she did not call the police. Later, when Mr. Tardo awoke from his nap, Mrs. Tardo informed him of the situation. She noted that he was not aggressive, hostile, or agitated about the situation but wanted to speak to the defendant to make sure "everything is okay." After Mr. Tardo left, Mrs. Tardo took a shower, and approximately twenty minutes later, she heard ambulances outside her town home. She ran outside and noticed the defendant against a police vehicle.
When paramedics carted Mr. Tardo out of the defendant's home, Mrs. Tardo described his appearance as "bad," that there was "blood everywhere," and that she had "never seen it before." Mrs. Tardo testified that Mr. Tardo did not speak and that he "didn't know anything." Eventually, Mr. Tardo was taken by ambulance to a local hospital for treatment of his injuries.
Officer David Woodruff of the Covington Police Department testified that on August 11, 2012, while on patrol in Covington, he was approached by an individual who informed him of what sounded like loud arguing and fighting coming from nearby town homes. Officer Woodruff parked his vehicle and could hear "what sounded like two people ... with their voices raised arguing." After pinpointing where the noise was coming from, Officer Woodruff knocked on the front door of the defendant's residence, and eventually a man (later identified as the defendant) appeared on the second story balcony. After informing the defendant that he needed to speak with him, Officer Woodruff was allowed inside the town home.
Officer Woodruff described the defendant's demeanor as "Very agitated. Very agitated. I would say a little hostile." Officer Woodruff specifically remembered that the defendant was upset because he would not shake the defendant's hand. He testified that the defendant's response was "Get the f--- out of my house." Though he initially believed there to be a domestic dispute between the defendant and Ms. Steinhauer, after observing the two individuals, the room, and the lack of physical injuries, Officer Woodruff left the residence.
Officer Phillip Meranta of the Covington Police Department testified that on the evening of August 11, 2012, he was dispatched to the defendant's town home in connection with an aggravated battery. When Officer Meranta arrived at the scene, he was greeted by Ms. Steinhauer, whom he described as "very frantic." She reported that there was an altercation but was unable to provide any details regarding the fight. When Officer Meranta reached the second story, he "saw a white male laid out on the floor covered in blood and the defendant standing over the top of him with his hands in the air saying, I did it." Officer Meranta testified that Mr. Tardo was unconscious upon his arrival.
Additionally, Officer Meranta stated Mr. Tardo was bleeding profusely, with blood surrounding Mr. Tardo's head, and on the wall, furniture, and the ceiling (which Officer Meranta noted were twelve-foot vaulted ceilings). The defendant did not have any physical injuries to his hands or body and was not bleeding. Officer Meranta decided to detain the the defendant; and initially, he was calm and not overly excited. However, as he was being escorted to a patrol car, the defendant tried to pull away, began shouting profanities at Mr. Tardo, and tried to lunge back to Mr. Tardo. During this encounter, Mr, Tardo remained unconscious. The defendant did not claim he was attacked or that Mr, Tardo entered his home without authorization. Eventually, Mr. Tardo made his way to a kitchen stool, but was confused as to his surroundings and disoriented.
Sergeant Doug Arrowwood of the Covington Police Department testified that on the day of the battery he was dispatched as the primary officer; but because he was working an accident at the time, he could not immediately travel to the scene. When he arrived at the residence, he observed the defendant being escorted out by Officer Meranta. Sergeant Arrowwood described the defendant's demeanor as "combative" and "uncooperative." When he entered the town home, Sergeant Arrowwood observed Mr. Tardo seated on a stool in the kitchen. EMS personnel had not yet arrived. Mr. Tardo was unable to respond to Sergeant Arrowwood's questions, and "didn't know much of anything that was going on at all." Sergeant Arrowwood attempted to speak to Mr. Tardo, but indicated "[a]t that point in time, there was very little response."
After Mr. Tardo was taken to the hospital, Sergeant Arrowwood observed the town home, and noted blood on the ceiling. Sergeant Arrowwood also testified that boots were used as part of the striking force against Mr. Tardo as there was blood on them. Sergeant Arrowwood attempted to speak to Ms. Steinhauer, but all he was able to elicit was that there was a fight, and that she did not see anything. Later, at the hospital, Sergeant Arrowwood spoke to Mr. Tardo, who "remember[ed] going to the town house and that's it. Nothing."
Dr. Gurpal Benning, a family medicine physician, testified that Mr. Tardo was his patient for two to three years prior to the attack and that he treated his injuries following the assault on August 11, 2012. Mr. Tardo reported losing consciousness as a result of the attack. He also described suffering from headaches, a loss of concentration, and feeling very fatigued. As a result of the battery, Dr. Benning diagnosed Mr. Tardo with post-concussive syndrome, indicated he suffered bruising and swelling, and reported that he sustained a right low jaw fracture, a right eye socket fracture, and a broken nose. Dr. Benning testified that Mr. Tardo's injuries were consistent with an injury to the head.
Additionally, though Mr. Tardo could not articulate the source, bruising was found around his neck, which Dr. Benning suspected to be as a result of strangulation. Dr. Benning indicated such bruising was not identified prior to the attack. Dr. Benning stated that Mr. Tardo had a difficult time speaking due to his jaw injury. Further, Dr. Benning testified that during the two to three years Mr. Tardo had been his patient, he did not know him to be aggressive or hostile.
Dr. Daniel Harris, an oral surgery/maxillofacial surgeon, also testified at trial. In his initial visit with Mr. Tardo, Dr. Harris inquired as to the cause of the injuries, and Mr. Tardo reported that his neighbor punched him. He diagnosed Mr. Tardo with a lower jaw fracture just below the right ear. Dr. Harris described the injury as "serious" and that surgical intervention was required. Dr. Harris noted that Mr. Tardo had pain with eating and movement of his jaw.
Ms. Julie Steinhauer testified that prior to the attack, she and the defendant were discussing a custody issue involving her ex-husband. She then heard a knock on their front door, and when she opened the door, a policeman was present. The officer indicated he received a call regarding a disturbance, and he wanted to make sure things were okay. Ms. Steinhauer immediately believed the Tardos called the police, so she went to their residence where she found Mrs. Tardo exercising in her garage. Ms. Steinhauer indicated she was being ''neighborly" by letting Mrs. Tardo know that everything was alright. The defendant's friend Brian was standing outside with Ms. Steinhauer when the conversation took place, Ms. Steinhauer then returned home.
She testified that later, while in her kitchen, she heard another knock on the door. The defendant then stepped out on the second floor balcony and said "[n]ot today Frank." However, Ms. Steinhauer testified that her next recollection was of Mr, Tardo inside her home. According to Steinhauer, he was "disheveled" and looked "like a zombie." Though Ms. Steinhauer confirmed Brian was living with her and the defendant, she did not recall Brian or anyone else being with Mr. Tardo when he entered the residence. Ms. Steinhauer further indicated Mr. Tardo did not have a weapon when he entered their home. Ms. Steinhauer testified that Mr. Tardo questioned the defendant as to why Ms. Steinhauer accused the Tardos of calling the police.
She testified that a fight subsequently ensued. The defendant was on his back, trying to get Mr. Tardo off of him, and the two were wrestling in the living area. After the defendant called 911, she crouched into a corner with a knife. From this point forward, Ms. Steinhauer indicated she did not observe any of the fighting. However, she testified hearing the defendant say "[s]tay down Frank." When the police arrived, she hurried down the stairs to let them in.
The defendant testified at trial. He indicated that at the time of the offense, he was thirty-six years old He confirmed that on the day of the attack, he and Ms. Steinhauer were having a discussion regarding an ongoing custody battle between her and her ex-husband. Specifically, he claimed that on the day in question, they received a temporary restraining order against the defendant based on molestation allegations. Later, the defendant confirmed that the police knocked on the door regarding a disturbance, asked some questions, and left. The defendant recalled having a few beers that day.
Later, when Mr. Tardo knocked on the door, the defendant immediately thought the police had returned. However, when he saw Mr. Tardo, he said "not today" and that "[w]e are going to let the police figure this out." According to the defendant, his next recollection was of Mr. Tardo inside their town home threatening him. At this point, the defendant testified he was seated and the two were arguing. Eventually, he indicated Mr. Tardo grabbed him, and the two began fighting and wrestling. They flipped over a chair, with Mr. Tardo landing on top of the defendant. The defendant claimed, in an attempt to move out from under Mr. Tardo, he repeatedly kicked Mr. Tardo in the head and face with his "thick, heavy" boots. The defendant stated that he then called the police.
However, the defendant also testified Mr. Tardo stood up and approached the defendant, who raised his foot and pushed Mr. Tardo backwards. The defendant testified Mr. Tardo stood up a third time, and the defendant kicked him backwards, specifically testifying that he tried to push Mr. Tardo through a wall. The defendant testified that during this time, blood was all over the town home. After pushing Mr. Tardo a third time, the police arrived, handcuffed the defendant, and escorted him out of his residence.
ASSIGNMENTS OF ERROR
The defendant cites seven assignments of error:
1. The verdict is contrary to the law and the evidence.
2. The district court erred in the denial of the motion for new trial. 3. The district court erred in its denial of the motion for post verdict judgment of acquittal.
4. The sentence is this matter is illegal and is unconstitutionally excessive.
5. The district court erred in its denial of the motion to reconsider sentence.
6. The trial court improperly admitted other crimes evidence.
7. The trial court erred in the denial of the motion for mistrial.
SUFFICIENCY OF EVIDENCE
The defendant combines assignments of error 1, 2, and 3 in his brief, and argues the evidence presented at trial established that Mr. Tardo, as the aggressor, entered his residence without consent, and that the defendant responded in self-defense. The defendant does not challenge the proof of his identity, that the offense occurred, or that his actions caused Mr. Tardo's injuries.
The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and the defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 2010-1841 (La. App. 1st Cir. 6/10/11), 68 So.3d 1209, 1224; See La. Code Crim. P. art. 821(B). In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Millien, 2002-1006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 508-09. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. The offense of second degree battery consists of a battery when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1(A). "Serious bodily injury" is defined as "[b]odily injury which involves unconsciousness, extreme physical pain or protracted obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.1(B). Second degree battery is a specific-intent offense. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S, 14:10(1). Specific intent may be proved by direct evidence, such as statements by the defendant, or by inference from circumstantial evidence, such as a the defendant's actions or facts depicting the circumstances. State v. Druilhet, 97-1717 (La. App. 1st Cir. 6/29/98), 716 So.2d 422, 423.
In a non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances; and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Brown, 2003-1076 (La. App. 1st Cir. 12/31/03), 868 So.2d 775, 782, writ denied, 2004-0269 (La, 6/4/04), 876 So.2d 76, However, Louisiana law is unclear as to who has the burden of proving self-defense in a non- homicide case. State v. Barnes, 590 So.2d 1298, 1300 (La. App. 1st Cir. 1991).
In State v. Freeman, 427 So.2d 1161, 1162-63 (La. 1983), the Louisiana Supreme Court, without resolving the issue, suggested that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. See Barnes, 590 So.2d at 1300-01.
In previous cases dealing with this issue, this Court has analyzed the evidence under both standards of review, that is, whether the defendant proved self-defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. Similarly, we need not decide in this case who has the burden of proving (or disproving) self-defense, because under either standard the evidence sufficiently established that the defendant did not act in self-defense. See State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 931.
Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree battery, the defendant's identity as the perpetrator of the offense, and that the defendant's attack on the victim was not justified. The verdict rendered against the defendant indicates the jury accepted the victim's testimony that he was invited into the defendant's home by Brian. Thus, the presumption of Louisiana Revised Statute 14:19(B) was inapplicable.
La. R.S. 14:19(B), in pertinent part, provides:
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, ... held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises ... if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling ....
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred,
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. Captville, 448 So.2d at 680. No such hypothesis exists in the instant case. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. Furthermore, the trier of fact may accept or reject, in whole or in part, the testimony of any witness.
Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is on the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. After reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. Ordodi, 946 So 2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
Furthermore, any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the evidence presented by the State established that the defendant was the aggressor in the conflict, and thus, was not entitled to claim self-defense. Mr. Tardo had no memory of exactly what happened to him after he began climbing the stairs in the defendant's residence, but testified, immediately thereafter, he was in significant pain, thought he had been beaten up, and remembered the defendant telling him, "I can continue this and kill you unless you want to tell me the truth." Moreover, even if it could be found that the defendant was not the aggressor, any rational trier of fact could find, beyond a reasonable doubt that the defendant did not act in self-defense. The force used against Mr. Tardo was neither reasonable under the circumstances nor apparently necessary. Testimony at trial indicated that the defendant repeatedly kicked the disabled, elderly Mr. Tardo in the head with his "big, thick, heavy" boots, that the defendant kicked him in the chest on multiple occasions, specifically mentioning that he tried to kick Mr. Tardo through a wall, and that Mr. Tardo was knocked unconscious as a result of the defendant's attack. Due to the foregoing conclusions, these assignments of error are without merit.
EXCESSIVE SENTENCE
The defendant combines assignments of error 4 and 5 in his brief, and argues that, due to certain mitigating factors, the sentence imposed on count I, five years at hard labor, is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Craddock, 2010-1473 (La. App. 1st Cir. 3/25/11), 62 So.3d 791, 795-96, writ denied, 2011-0862 (La. 10/21/11), 73 So.3d 380. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Louisiana Code of Criminal Procedure Article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569; State v. Lewis, 489 So.2d 1055, 1061 (La. App. 1st Cir.), writ denied, 493 So.2d 1218 (La. 1986).
The articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions, is the goal of Article 894.1. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894,1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
The defendant sets forth several factors which he argues support a reduction of his sentence. He notes that Mr. Tardo's entry was unauthorized, that he did not choose to confront Mr. Tardo in his residence, and that Mr. Tardo was the first to "lay hands" on the defendant. Additionally, the defendant asserts that he does not have any previous criminal felony convictions or violent arrest history. Furthermore, the defendant argues he is not the "worst possible offender" and does not deserve the maximum imprisonment as provided by La. R.S. 14:34.1(C).
At trial, the defendant testified to two previous DWI convictions.
Whoever commits the crime of second degree battery "shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both." La. R.S. 14:34.1(C). In the instant matter, the defendant was sentenced to five years at hard labor.
At the sentencing hearing, the trial court, after considering the factors laid out in Article 894.1, found that the defendant's actions caused "extremely severe" injuries, including a broken nose, jaw and eye socket. Additionally, the trial court noted that Mr. Tardo continues to undergo a lengthy and expensive rehabilitation process. Further, the trial court found that the defendant's actions manifested a deliberate cruelty to Mr. Tardo, which caused both a significant physical injury and economic loss. Finally, the trial court determined that any lesser sentence would depreciate the seriousness of the defendant's offense, and that the defendant was in need of correctional treatment, which would be most effectively provided by commitment to an institution.
A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La. Code Crim. P. art. 894.1(A)(2), (A)(3), (B)(1), & (B)(9). Further, the sentence imposed was not grossly disproportionate to the severity of the offenses and thus, was not unconstitutionally excessive.
Additionally, this Court has stated that maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113; State v. Miller, 96-2040 (La. App. 1st Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459.
A maximum sentence was warranted in this matter. As noted above, the jury accepted Mr. Tardo's testimony that he was given permission to enter the defendant's home by Brian. Thus, Mr. Tardo's entry was not unauthorized. The jury also rejected the defendant's claim that Mr. Tardo was the aggressor and that the defendant acted in self-defense. Further, this was the most serious offense because the defendant fractured Mr. Tardo's jaw, fractured his eye socket, and broke his nose. There was also evidence that Mr. Tardo may have been strangled. Additionally, the defendant is the worst offender because of the vicious manner in which he assaulted the disabled, elderly Mr. Tardo, and because he even attempted to continue his attack on the defenseless victim while being taken into custody.
These assignments of error are without merit.
OTHER CRIMES EVIDENCE
The defendant combines assignments of error 6 and 7 in his brief, and argues that the lower court committed reversible error by allowing "incendiary allegations" of molestation against the defendant to be presented to the jury, and by failing to subsequently declare a mistrial.
Generally, evidence of other crimes, wrongs or acts committed by the defendant is inadmissible due to the "substantial risk of grave prejudice to the defendant." La. Code of Evidence Article 404(B); State v. Hills, 99-1750 (La. 5/16/00), 761 So.2d 516, 520. To admit "other crimes" evidence, the State must establish that there is an independent and relevant reason for doing so, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. See La. Code Evid. art. 404(B).
Evidence of other crimes, however, is not admissible simply to prove the bad character of the accused. Further, 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. Tilley, 99-0569 (La. 7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L,Ed.2d 375 (2001). Ultimately, questions regarding the admissibility of evidence are within the discretion of the trial court and should not be disturbed absent a clear abuse of that discretion. State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam); State v. Mosby, 595 So.2d 1135, 1139 (La, 1992).
Upon request by the accused, the State must provide the defendant with notice and a hearing before trial if it intends to offer evidence of other crimes or acts. State v. Schleve, 99-3019 (La. App. 1st Cir. 12/20/00), 775 So.2d 1187, 1198, writs denied, 2001-0210 (La. 12/14/01), 803 So.2d 983 and 2001-0115 (La. 12/14/01), 804 So.2d 647, cert denied, 537 U.S. 854, 123 S.Ct. 211, 154 L.Ed.2d 88. Absent evidence that the State evaded Prieur notice requirements by deliberately reserving its other crimes evidence for cross-examination or rebuttal, the notice requirements do not apply where the defendant, through his own testimony, makes the other crimes evidence relevant. State v. Silguero, 608 So.2d 627, 630 (La. 1992).
The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by State v. Prieur, 277 So.2d 126, 130 (La. 1973). Prior to its repeal by 1995 La. Acts No. 1300, § 2, Louisiana Code of Evidence Article 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence. Under Prieur, the State was required to give a the defendant notice, both that evidence of other crimes would be offered against him, and of which exception to the general exclusionary rule the State intended to rely upon. Additionally, the State had to prove by clear and convincing evidence that the defendant committed the other crimes. Prieur. 277 So.2d at 129-30.
However, 1994 La. Acts 3d Ex. Sess., No, 51, § 2 added Louisiana Code of Evidence Article 1104, which provides that the burden of proof in pretrial Prieur hearings "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404." The burden of proof required by Rule 404 is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddlesion v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of Article 1103 and the addition of Article 1104. However, numerous Louisiana appellate courts, including this court, have held that burden of proof to now be less than "clear and convincing." See State v. Millien, 20021006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 514.
Louisiana Code of Criminal Procedure Article 770(2) states in part that a mistrial shall be ordered when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official, which directly or indirectly refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. State v. Pierre, 2012-0125 (La. App. 1st Cir. 9/21/12), 111 So.3d 64, 68, writ denied, 2012-2227 (La. 4/1/13), 110 So.3d 139. A district court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603; State v. Lynch, 94-0543 (La. App. 1st Cir. 5/5/95), 655 So.2d 470, 477, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466.
During Ms. Steinhauer's testimony, while discussing the confrontation between the defendant and Mr. Tardo in her town home, she stated: "[a]nd Jimmy was sitting and Frank was standing. And Jimmy asked, Did you molest my daughter? Did you touch my daughter?" Further, when describing her interaction with Mrs. Tardo in the Tardo's driveway, Ms. Steinhauer remembered the defendant standing on the second story balcony and stating:
He said, You know, remember what we were discussing earlier? This is between, I'm pretty sure he said, Molly and the police, or it could have been them and the police, but I knew it was something that had to do with the Tardo family and the police.
Ms. Steinhauer confirmed this was the issue she and the defendant were loudly discussing when Officer Woodruff initially visited them. On cross-examination the State asked Ms. Steinhauer, "[w]eren't you fighting the investigation regarding allegations - regarding Mr. Graham and things with your daughter?" At that point, defense counsel objected and moved for a mistrial. A conference was held outside the presence of the jury, where it was determined that before trial, an agreement was reached between the State and defense counsel, whereby the State agreed to not raise the issue of the molestation allegations as long as defense counsel likewise did not discuss the issue. Ultimately, the trial court ruled that based on the comments made by Ms. Steinhauer during her direct examination by defense counsel, she opened the door to a line of questioning regarding the molestation allegations.
Further, the court decided the evidence concerning the allegations was admissible and relevant to show motive and intent of the defendant, and that it also constituted an integral part of the offense. See La. Code of Evidence Article 404(B). As such, the court denied the motion for mistrial, and defense counsel objected to the court's ruling. After a review of the record, we agree that Ms. Steinhauer "opened the door" to a line of questioning regarding molestation allegations against the defendant. She caused the evidence to be "otherwise admissible," and as such, the trial court did not abuse its discretion by allowing such testimony and refusing the defendant's motion for mistrial.
Moreover, a violation of Article 770(2) is subject to a harmless error analysis. State v. Smith, 98-1417 (La. 6/29/01), 793 So.2d 1199, 1211, cert denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002); State v. Lockett, 99-0917 (La. App. 1st Cir, 2/18/00), 754 So.2d 1128, 1131, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. The proper analysis for determining harmless error "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this 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).
Considering all the circumstances, we conclude that the guilty verdict actually rendered in this trial was surely unattributable to any error. The State's evidence clearly established beyond a reasonable doubt all of the essential elements of the charged offense. Particularly in light of the jury's rejection of the defendant's claim of self-defense, any potential error in the jury hearing such testimony was harmless beyond a reasonable doubt. Therefore, these assignments of error are without merit.