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State v. Colby

Court of Appeals of Louisiana, Second Circuit

May 30, 2018

STATE OF LOUISIANA Appellee
v.
MARK EDWARD COLBY Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 326568 Honorable John D. Mosely, Jr., Judge

          JOHN D. & ERIC G. JOHNSON LAW FIRM, LLC By: Eric G. Johnson Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney BRITNEY A. GREEN ERICA JEFFERSON RON C. STAMPS Assistant District Attorneys Counsel for Appellee

          Before WILLIAMS, PITMAN, and GARRETT, JJ.

          WILLIAMS, J.

         The defendant, Mark Edward Colby, was charged by bill of indictment with second degree murder, in violation of La. R.S. 14:30.1. Following a jury trial, he was found guilty as charged. He was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. For the following reasons, we affirm.

         FACTS

         On September 10, 2014, the Shreveport Police Department ("SPD") responded to a report of a deceased person at a residence. The police officers arrived at the home of the victim, 53-year-old Angela Godley, and discovered that she had been shot multiple times. The officers also learned that Godley shared the house with the defendant, Mark Edward Colby, with whom she was involved in a romantic relationship.

         The subsequent investigation revealed that Godley owned and operated a restaurant and bar in Shreveport known as the Noble Savage Tavern ("the tavern"). During interviews with employees of the tavern, the officers learned the following facts: Godley and the defendant were last seen having drinks together at the tavern on September 10, 2014, at approximately 1:30 a.m.; the tavern was registered in Godley's name because the defendant's "criminal history" prevented him from obtaining a liquor license; and the defendant carried a handgun.

         The defendant became a person of interest early in the investigation into Godley's murder. However, initially, the SPD was unable to locate the defendant or ascertain his whereabouts. On September 12, 2014, the defendant was apprehended in Mexico. Subsequently, he was transported to

          Shreveport and was later indicted by a grand jury for second degree murder, in violation of La. R.S. 14:30.1.

         On June 13, 2016, the state filed a notice of intent to introduce evidence of other crimes, wrongs or acts, pursuant to La. C.E. art. 404(B). The state's Prieur[1] notice identified four "other crimes, wrongs, or acts" as follows:

1. January 25, 2011: Godley called the police to the home she shared with the defendant. Godley reported that the defendant had held a knife to her throat and threatened to kill her. The defendant was arrested and charged with domestic abuse battery.
2. November 8, 2006: Robert Brocato, a patron of the tavern, contacted the SPD and reported that the defendant had put a handgun to the left side of Brocato's head and fired one shot into the air. The defendant was arrested and charged with illegal use of a weapon.
3. November 30, 2004: Summer Bailey, a former employee of the tavern, contacted the SPD and reported that the defendant had pulled a handgun on her, fired one shot in the floor near her feet, grabbed her by her neck, lifted her off the floor and "slammed" her into a brick wall several times.
4. May 10, 2012: The defendant left a handgun at a local gym. The gun was handed over to the SPD. Thereafter, the defendant claimed the weapon from the SPD. The gun was identified as the weapon used to murder Godley.

         In the Prieur notice, the state maintained that the evidence was relevant to prove the following:

[T]he defendant's intent to kill or inflict great bodily harm on the victim; the defendant's planning and preparation of the murder; the defendant's identity as the murderer; the defendant's motive for the murder; the absence of mistake or accident; and/or modus operandi.

         On July 19, 2016, the defendant filed an opposition to the Prieur notice, arguing that the information contained therein did not fall within the narrow exceptions of La. C.E. art. 404(B) and that the admission of the evidence would result in unnecessary prejudice. Following a hearing, the trial court found that all putative evidence offered by the state was admissible.[2]

         Thereafter, a trial was held, at which multiple witnesses testified. Peter Fetterman, an employee at the tavern, testified as follows: he was working the night of September 9, 2014; when he left the tavern between 12:00 a.m. and 1:00 a.m., Godley was there drinking wine and vodka; and Godley and the defendant seemed to be "in good spirits" when he last saw them.

         Michelle G. Ballard, who was also employed at the tavern, testified as follows: she was working at the tavern on the evening of September 9, 2014; Godley and the defendant were at the tavern "having drinks" that night; Godley was drinking wine and/or vodka and cranberry juice; she (Ballard) left the tavern at approximately 11:00 p.m.; Godley and the defendant seemed to be "in good spirits" when she left the tavern; she (Ballard) reported to work at the tavern on September 10, 2014, at approximately 2:30 p.m.; when she arrived, the doors were locked; she thought it unusual that the doors were locked because, ordinarily, the defendant would be at the tavern by the time she arrived to begin her shift; she noticed that Godley's vehicle was in the tavern's parking lot; she was unable to locate either Godley or the defendant by telephone; her concern motivated her to drive to the home Godley shared with the defendant; when she arrived at the house, she noticed that the garage door was open and she heard the couple's dogs barking; she walked into the garage, looked through the glass window of a door leading from the garage into the laundry room of the house, and saw Godley lying face down on the floor; one of the dogs was lying on top of Godley; she opened the unlocked door and called out to Godley, who did not respond; she noticed that Godley was wearing the same clothing she had been wearing the previous night; and she ran out of the house and called 911.

         Detective Marcus Mitchell, a crime scene investigator with the SPD, testified as follows: he assisted in the investigation of Godley's murder; when he arrived at the residence, Godley's body had not been moved; he did not find any weapons in Godley's hands, on her person or within her reach; after obtaining a search warrant for the residence, he and other officers searched the house; during the search, the officers found multiple spent .45 caliber Hornady brand shell casings; a semi-automatic Colt Defender .45 caliber handgun, serial number DR31076 ("the Colt .45"), was found on a bed in one of the bedrooms; he removed the magazine from the gun and noticed that it was loaded with Hornady brand .45 caliber bullets; he located multiple revolvers throughout the house; when he arrived at the house, he documented and photographed the location of each gun and photographed the crime scene;[3] a flip-flop shoe that matched the one Godley was wearing was found in the kitchen near the laundry room; blood was spattered on the kitchen wall near the shoe; a bullet hole was found in a wall in the kitchen, and the bullet was found on the opposite wall; the blood spatter and bullet hole indicated that someone was shot in close proximity to the wall; the home had an "open" floor plan; a partial wall, containing a double-sided fireplace, was located between the living room area and the kitchen; multiple .45 caliber shell casings were found near the fireplace; the location of the shell casings indicate that shots were fired from that location; unlike a revolver, a semi-automatic handgun ejects shell casings when fired; a deformed bullet and more shell casings were found in the doorway leading into the laundry room; the deformity indicates that the bullet had been fired from a gun and had struck an object; another shell casing was found near Godley's body in the laundry room; he found Godley's handbag on a table in the dining room area; he did not find a gun in the handbag; he found multiple revolvers in the living room and kitchen, and one loaded revolver was found in a drawer in the laundry room several feet from Godley's body;[4]he "bagged" and labeled the Colt .45; and he suspected that the Colt .45 could be the murder weapon because it was the only semi-automatic weapon found in the house.[5]

         Detective Chad Dailey, a detective with the violent crimes section of the SPD, also assisted in the investigation of Godley's murder. Det. Dailey testified as follows: when he arrived at the crime scene, he learned that the defendant lived in the house with Godley; he became concerned that the defendant may have also been a victim of the crime; after interviewing Ballard, he sent police officers to the tavern to secure the location and to determine if there were any other victims of the homicide; multiple guns were recovered from the tavern; during his interview with some of the tavern's employees, Eric Johnson, one of the managers, informed him that the defendant had stated to him (Johnson) that he (the defendant) would flee to Mexico if he was ever charged with a crime;[6] he (Det. Dailey) issued a request to locate the defendant's Ford Ranger truck and provided the truck's license plate number; Louisiana highway traffic cameras identified the defendant's truck on I-49 South at 6:00 a.m. and on I-10 westbound in Lake Charles, Louisiana, at 10:00 a.m. on September 10, 2014; he was later informed by the Department of Homeland Security that the defendant's truck was identified traveling from Laredo, Texas, into Juarez, Mexico at 4:31 p.m. on September 10, 2014; after he received photographs from the Department of Homeland Security depicting the defendant driving his truck across the border into Mexico, he obtained a warrant to arrest the defendant for Godley's murder;[7] with assistance from the Department of Homeland Security, the defendant was located, arrested, escorted to the border and turned over to United States authorities;[8] he, Det. Mitchell and another SPD detective traveled to Del Rio, Texas, to interview the defendant;[9] during the interview, the defendant, with a seemingly nonchalant demeanor, spoke about how "well" he had been treated by Mexican authorities and complimented the food he had been served during his detainment; the defendant also stated that he had approximately $2, 000 in his truck and asked the detectives whether the murder with which he had been charged was a "planned murder, " an "unplanned murder, " or a murder that results from a "crime of passion"; he did not notice any injuries to the defendant during the interview; he was not aware whether the defendant had reported any injuries to any law enforcement agency; he inspected and photographed the defendant's truck; he found approximately $1, 500 in cash and a series of gold coins of various denominations; during the investigation, he learned from the Department of Homeland Security that the defendant had renewed his passport on August 19, 2014, less than a month before Godley's murder; he also learned of a police report filed on May 12, 2012, by an employee of Fitness World, who reported that he had found a .45 caliber Colt Defender handgun, serial number DR31076, in a locker at the gym; the gun, which was turned in at the SPD, was later retrieved by the defendant; and forensic experts later concluded that the Colt .45 was the weapon used to kill Godley.

         Dr. James Taylor, an associate clinical professor and director of autopsy and forensic services at the LSU Health Sciences Center, testified as follows: he performed the autopsy on Godley; he determined that Godley died from multiple gunshot wounds and ruled her death a "homicide"; Godley had been shot five times: she had one "graze wound" to her left leg, one "perforating" wound to the posterior left thigh, one "perforating" wound to her left shoulder, [10] and two wounds to the back; four of the five gunshots (with the exception of the one to the left shoulder) were fired while Godley was lying in a prone position on the floor; one of the shots to Godley's back severed her spine and that shot, alone, would have killed her; Godley's blood alcohol level was .117, and she had Prozac, an antidepressant, in her system; and a blood alcohol level of .117 can result in impaired judgment, loss of critical thinking, decreased reaction time and loss of inhibitions.

         Carla White, a firearms examiner with the North Louisiana Criminalistics Laboratory in Shreveport, Louisiana ("the crime lab"), also testified at trial. White stated that the crime lab received the following items: a .45 caliber Colt Defender 90 lightweight pistol, bearing the serial number DR31076; four "live" .45 caliber cartridges; one bullet that had been retrieved from Godley's body; three additional bullets; and four "spent" .45 caliber cartridge casings. White described the process for verifying a murder weapon. She stated that she "test-fired" the .45 Colt into a water tank; she then examined the expelled casings and the bullets under a microscope and she compared the casings and bullets to those recovered from the crime scene. White concluded that the bullet recovered from Godley's body, the bullets found in the house and the test-fired bullets came from the Colt .45 caliber handgun that had been retrieved from Godley's house. She further concluded that the casings found at the scene of the crime and those from the test firing came from the same weapon.[11]

         Multiple witnesses testified that numerous guns were retrieved from the house the defendant shared with Godley and that guns were found in every room in the house. The witnesses also testified that Godley carried a gun in the glove compartment of her vehicle and that she usually carried one in her handbag. Further, the witnesses testified that the defendant always carried a Colt .45 handgun on his hip while he was working at the tavern; he had a handgun attached underneath the bar at the tavern; and he had multiple guns in his office at the tavern. According to Peter Fetterman, the defendant would sometimes place a gun on the bar at closing time and would state, "Time to go, " in an effort to intimidate the customers into making a speedy exit.

         Additionally, multiple witnesses testified with regard to the relationship between the defendant and Godley. The witnesses testified that the couple often argued; however, the evidence was contradictory as to which party was the aggressor in the arguments. Fetterman testified that the defendant and Godley sometimes yelled at one another and "got into" each other's "personal space." Eric Johnson testified that he had witnessed multiple incidents during which Godley pushed or hit the defendant in the chest during arguments. Johnson also stated that he did not believe the physical contact between Godley and the defendant was "serious, " and law enforcement was never called. Johnson testified that he had never seen the defendant "get physical" with Godley.

         Callie Bunton, a mutual friend of the defendant and Godley and former employee of the tavern, testified as follows: Godley was often intoxicated; she had seen Godley "act abusively" toward the defendant, who would respond "passively"; she had witnessed Godley "get mad at [the defendant] and shove him and get in his face and scream at him and tell him that she hated him"; in response to Godley's behavior, the defendant would "hang his head" until Godley "calmed down"; and Godley had told her that, in the past, she had shot one of her ex-husbands. Bunton admitted that she had never reported the incidents to law enforcement and she did not believe that the defendant was afraid of Godley.

         Barry Humphrey, Godley's childhood friend, testified that Godley could be "intimidating." However, he stated that he had never seen her "get physical" with the defendant. Humphrey also testified that several years prior to her death, Godley had confided in him that the defendant had "gotten rough" with her. He stated that he understood Godley's statement to mean that the defendant was physically abusive to her.

         Thereafter, the state introduced evidence of the defendant's prior domestic abuse against Godley, as well as the incidents involving Summer Bailey and Robert Brocato. Steward Kite, a former police officer with the SPD, testified that he investigated a domestic battery incident that had been reported by Godley on January 25, 2011. Officer Kite testified as follows: he arrived at Godley's residence to find her "crying and pretty shaken"; Godley "related that her live-in boyfriend, Mr. Mark Colby, had threatened her life by putting a knife to her neck on the way home from [the tavern]"; Godley also reported that while driving home from the bar, she informed the defendant that she was moving out of the house because he was physically and psychologically abusive to her; Godley further stated that she had told the defendant that she was going to call animal control and have his dogs taken away from him; additionally, Godley told the officer that, in response to her statements, the defendant stopped his vehicle, "put a knife to her throat and threatened to kill her." According to Officer Kite, he then arrested the defendant for domestic abuse battery.

         Summer Bailey testified that in 2004, she worked at the tavern as a dishwasher and "prep cook." She described an incident that occurred on November 28, 2004, as follows:

[The defendant and Godley] came in the restaurant and they were arguing and [Godley] said something to me. I said something to her and then [the defendant] pulled a gun out and he shot in between my legs and then he - he got to me really fast and he put his hand around my throat and knocked me off where I was sitting and then he picked me up from where I was, took me to the other end of the restaurant and slammed me up against a brick wall a couple of times where my feet were off the ground where I couldn't touch it, with a gun to my head telling me that he was going to f*cking kill me, did I understand him.
And he kept doing it and then I couldn't breathe and he had kept asking me if I understood him and I was looking at the ground and I couldn't reach the ground to leave. And then he finally threw me down and pointed a gun at me and he told me that he was going to kill me[.]

         Bailey stated that she reported the incident to the SPD.

         Dr. Robert Brocato testified that on November 18, 2006, while he was enrolled in medical school, he and some friends visited the tavern. Brocato testified as follows: he went to the restroom and kicked a glass that was on the floor; the defendant "rushed" into the restroom, put a gun to his (Brocato's) head and accused him of "breaking his stuff"; while holding the gun to Brocato's head, the defendant tilted the barrel of the gun up into the air and fired it; the defendant's actions caused his (Brocato's) eardrum to be ruptured, resulting in permanent hearing loss; the attack was unprovoked; and prior to that incident, he and the defendant had never had an argument or altercation.

         The defendant did not testify at trial. However, through counsel, he argued that he shot Godley in self-defense.

         At the conclusion of the trial, a unanimous jury found the defendant guilty as charged of second degree murder. Thereafter, the defendant was sentenced to serve life in prison, at hard labor, without the benefit of parole, probation or suspension of sentence.

         The defendant now appeals.

         DISCUSSION

         Evidence of "Other Crimes, Wrongs or Acts"

         The defendant contends the trial court erred in allowing the state to introduce evidence of other crimes, wrongs or acts. The defendant sets forth multiple arguments regarding the "other crimes" evidence. The arguments are as follows: he was prejudiced by the court's ruling because the evidence portrayed him as a "deviant criminal, such that the probative value of the evidence was far outweighed by the prejudice it created in the minds of the jurors"; the prejudicial impact of the "other crimes" evidence was heightened by the trial court's failure to provide the jury with the requisite limiting instruction with regard to the evidence; the court's failure to instruct the jury affected the jury's ability to give the proper weight to the "other crimes" evidence; the state cannot rely on "boilerplate" recitation of the grounds for admissibility under La. C.E. art. 404(B); pursuant to State v. Taylor, 2016-0124 (La. 12/1/16), 217 So.3d 283, before the trial court can rule on the admissibility of other crimes evidence, the state must address each prior bad act in a Prieur hearing and establish that each act is substantially relevant to a material issue in the case; the state did not submit arguments or evidence to support three of the four alleged bad acts; the state failed to prove that the prior domestic abuse charge regarding Godley was substantially relevant to a material issue in this case; the trial court erred by not allowing defense counsel the opportunity, in the Prieur hearing, to present arguments against the admission of the evidence; and the four prior bad acts had little, or no, probative value because they lacked sufficient similarities to Godley's shooting. Specifically, the defendant argues as follows:

1. In the instant case, he was defending himself against Godley, while, in the incident with Bailey, he was protecting Godley from Bailey's verbal attack;
2. In the incident with Brocato, he was protecting his property, and Godley was not present when the incident occurred; and
3. The incident involving leaving his gun at the gym and retrieving it from the SPD was not a prior crime, wrong or bad act; therefore, that evidence was not relevant to this case.[12]

         Courts may not admit evidence of other crimes to show the defendant as a person of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1); State v. Rose, 2006-0402 (La. 2/22/07), 949 So.2d 1243; State v. Jackson, 625 So.2d 146 (La. 1993); State v. Howard, 47, 495 (La.App. 2 Cir. 11/14/12), 106 So.3d 1038; State v. Morgan, 45, 110 (La.App. 2 Cir. 4/14/10), 34 So.3d 1127, writ denied, 2010-1201 (La. 5/27/11), 63 So.3d 992. Evidence of other crimes, wrongs or bad acts committed by the defendant is generally inadmissible because of the "substantial risk of grave prejudice to the defendant." State v. Prieur, 277 So.2d at 128; State v. Howard, 106 So.3d at 1044. However, the state may introduce such evidence if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. La. C.E. art. 404(B)(1).

         The defendant is entitled to notice and a hearing before trial if the state intends to offer such evidence. State v. Prieur, supra. Even when other crimes evidence is offered for a purpose allowed by Article 404 B(1), 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, supra; State v. Altenberger, 2013-2518 (La. 4/11/14), 139 So.3d 510; State v. Jacobs, 1999-0991 (La. 5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Howard, supra; State v. Rose, supra. The state bears the burden of proving, by a preponderance of the evidence, that the defendant committed the other crimes, wrongs or acts. State v. Taylor, supra; State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932 (per curiam).

         The district court, in its gatekeeping function, must determine the independent relevancy of the evidence and balance the probative value of the prior bad acts evidence against its prejudicial effects before the evidence can be admitted. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); State v. Miner, 2017-1586 (La. 1/4/18), 232 So.3d 551; State v. Taylor, supra; State v. Henderson, 2012-2422 (La. 1/4/13), 107 So. 3d. 566. Any inculpatory evidence is "prejudicial" to a defendant, especially when it is probative to a high degree. "Prejudicial, " in this context, means that probative evidence of prior misconduct is excluded only when it is unduly and unfairly prejudicial. State v. Taylor, supra; State v. Rose, supra; State v. Germain, 433 So.2d 110 (La. 1983). 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. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); State v. Taylor, supra.

         A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Taylor, supra; State v. Galliano, supra; State v. Parker, 42, 311 (La.App. 2 Cir. 8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La. 3/7/08), 977 So.2d 896. Further, an erroneous introduction of other crimes evidence is subject to harmless error review. State v. Reed, 43, 780 (La.App. 2 Cir. 12/3/08), 1 So.3d 561, writs denied, 2009-0014, 0160 (La. 10/2/09), 18 So.3d 100, 18 So.3d 103; State v. Gatti, 39, 833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La. 4/17/06), 926 So.2d 511. The test for determining harmless error is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), or "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). See also, State v. Reed, supra; State v. McGee, 39, 336 (La.App. 2 Cir. 3/4/05), 895 So.2d 780; State v. Bratton, 32, 090 (La.App. 2 Cir. 6/16/99), 742 So.2d 896.

         We have reviewed this record in its entirety. The key inquiry regarding the admissibility of the evidence regarding each of the defendant's prior bad acts is whether the evidence was relevant to serve some independent purpose, apart from merely showing that the defendant is a bad person. At the Prieur hearing, the state presented the following witnesses, all of whom were cross-examined by the defendant, to prove that each of the four prior bad acts occurred. The testimony was as follows:

1. Det. Dailey, of the SPD, testified with regard to the 2012 incident, when the defendant claimed ownership of a Colt Defender .45 caliber handgun, serial number DR31076, which the SPD believed to be the murder weapon. The information was recorded on a SPD property receipt.
2. Steve Masson, of the SPD, testified regarding Godley's domestic abuse complaint on January 25, 2011, wherein Godley accused the defendant of holding a knife to her throat and threatening to kill her after a night of drinking and arguing. An arrest affidavit was issued for domestic abuse battery.
3. Sgt. Dwayne Kevin Cortez, of the SPD, testified as to Bailey's 2004 report that the defendant became angry because Bailey asked an intoxicated and belligerent Godley to leave the tavern. The defendant fired a .45 handgun into the floor, grabbed Bailey by the neck and slammed her against a brick wall two or three times and then told her to leave the tavern.
4. Investigator Rob Demery, previously employed by the SPD as a homicide investigator, testified regarding Brocato's 2006 complaint that the defendant, angry that Brocato, a customer at the tavern, broke a glass, put a gun to the side of Brocato's head and fired it. A .45 caliber shell casing was found on the floor indicating that the gun was a .45. The state introduced a bill of information and certified minutes showing that the defendant was convicted of aggravated assault arising from the Brocato incident.

         At the conclusion of the testimony, the trial court heard arguments concerning the domestic abuse incident between Godley and the defendant. The state argued that the 2011 domestic violence incident with Godley was relevant to show identity, absence of mistake or accident and motive by modus operandi, as it showed a deviant attitude toward women, particularly Godley.

         After the parties' arguments regarding the prior domestic incident, the trial court inquired, "Anything further?" The defense responded, "Not on this one, Your Honor." The trial court then stated: "All right. So we'll take a 10-minute recess, and I'll be right back and rule on this matter." Immediately upon returning from the recess, the trial court issued the following ruling: "After considering the testimony, arguments of counsel, and the applicable law, the Court finds that the evidence meets the statutory requirements and is therefore admissible."

         We find that the trial court did not abuse its discretion with regard to the admissibility of evidence of other crimes, wrongs and bad acts. In any event, any error that may have occurred in admitting the evidence is harmless in light of the overwhelming evidence demonstrating the defendant's guilt.

          The defendant's argument that he did not have an adequate opportunity to present substantive arguments opposing the state's Prieur notice prior to the trial court ruling in the state's favor is without merit. The defense was able to cross-examine the witnesses. Further, the defendant did not object or otherwise inform the trial court that he had additional arguments with regard to the Article 404(B) evidence. Additionally, contrary to the defendant's contention, there is no requirement that the state specifically address the connection between each prior bad act and the material issue to which it was relevant. In State v. Taylor, supra, the Louisiana Supreme Court recognized that a Prieur hearing is not intended to be a "mini-trial" of the prior offenses. In that regard, the court stated:

The state is simply required to make some showing of sufficient evidence to support a finding that defendant committed the other act. We cannot mandate or prohibit a specific form of evidence applicable to every case. Although testimony is not required, it may be necessary depending on the facts of a particular case. Other times the submission of documents, such as a police report or conviction, and a summation of the other crime, wrong, or act will suffice. Sufficiency of the state's evidence naturally must be determined on a case by case basis.

Id. at 292.

         Further, although the defendant did not deny committing the prior bad acts, the state submitted sufficient evidence, through witnesses and documentation, to show that the defendant had committed them. The defense cross-examined each of the state's witnesses. The trial court upheld its gatekeeping duty in finding the four prior bad acts admissible and expressly stated that in reaching its decision, it considered the testimony of the witnesses and the law.

          The trial court did not abuse its discretion in finding that each of the prior incidents identified by the state in its Prieur notice was admissible. Specifically, the prior incident involving the gun the defendant claimed from the SPD is not a "bad act" as contemplated by La. C.E. art. 404(B). Although it was not an attack on the defendant's character, the evidence was relevant and admissible to show that the murder weapon belonged to the defendant. The Colt .45 that was left at the gym, and retrieved by the defendant from the SPD, was the same make and model, and had the same serial number, as the handgun that forensic experts identified as the murder weapon.

         The incidents involving Bailey and Brocato involved the defendant losing his temper at perceived and seemingly insignificant threats, and using a gun against the object of his anger. Those incidents are relevant to show intent and to negate any claim of self-defense by the defendant. Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred. State v. Hearold, 603 So.2d 731 (La. 1992). When intent is an issue, similar unrelated conduct is admissible to negate a defense theory that the accused acted without criminal intent and to show that he intended to commit the charged offense. State v. Kennedy, 2017-0724 (La. 9/29/17), 227 So.3d 243; State v. Taylor, supra. While the prior acts must be similar, they need not be part of a scheme, as other similar acts, whether part of a scheme or not, are useful at reducing the possibility that the act in question was done with innocent intent. State v. Smith, 513 So.2d 438 (La. 1987).

         Moreover, prior instances of abuse, threats, and incidents of violence, between persons involved in a romantic relationship are admissible under La. C.E. art. 404 to show that the charged crime was an action in conformity with a pattern of behavior between the victim and the defendant.[13] In State v. Welch, 615 So.2d 300 (La. 1993), the Louisiana Supreme Court explained:

[T]he state could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the defendant[.] The primary purpose of the evidence [of prior acts of violence or threats of violence] was not to prove [the defendant's] bad character but to illustrate the volatile nature of his relationship with the victim[.]

Id. at 303.

         The defendant argues that evidence of prior acts of violence is not admissible when it involves violence against a third person, not the victim in the case. On the contrary, acts of violence against third persons are admissible when the acts meet a 404(B) exception and are relevant to a material fact in the case.[14] In support of his argument, the defendant cites State v. Davis, 2005-733 (La.App. 5 Cir. 2/27/06), 924 So.2d 1096 In that case, the Fifth Circuit held that the evidence was inadmissible because the state failed to establish a connection between the defendant's threat against his wife and the murder of her boyfriend, such that it could be used to establish motive or intent. The Fifth Circuit's decision was based on the particular facts of the case. The court held that there was little probative value to the evidence of the threat to the wife because the defendant did not include the wife's boyfriend in his threat and the wife's boyfriend was not present when the threat was made.

         In this case, the prior bad acts submitted by the state showed that the defendant pulled a .45 handgun in anger and that he threatened to kill on two prior occasions. Further, the evidence established that the defendant had also fired a gun in close proximity to the persons who had angered him. Additionally, the evidence revealed that the defendant had also held a knife to Godley's throat when she angered him. The probative value of the defendant's prior acts of violence against Godley, Bailey and Brocato was substantial, as they show that the defendant had a pattern and practice of reacting violently to seemingly insignificant stressors, and that he is quick to display and use a weapon. Consequently, we find that the evidence is probative to show that the defendant would be more likely to kill or seriously injure Godley when he was angry with her, and its probative value is not outweighed by any prejudice. Further, the defendant claimed self-defense at trial, and his identity as the shooter was no longer an issue. The evidence that the defendant carried a Colt .45 on his person, that the murder weapon was a Colt .45 owned by the defendant, and that he had used the gun on others, was relevant to show intent, pattern and plan, opportunity and to negate the defendant's claim of self-defense.[15]

         Regardless, even if the admission of the prior incidents involving Godley, Bailey and/or Brocato was error, it was harmless error. While the case against the defendant was largely circumstantial, there is an abundance of evidence that the defendant shot Godley with specific intent to kill her or cause her great bodily harm. In that regard, the overwhelming evidence showed that the defendant shot an unarmed Godley five times with a .45 semi-automatic handgun. Four of the gunshots fired by the defendant were at close range, while Godley was lying face-down on the laundry room floor.[16] The defendant fled the country, with approximately $2, 000 in cash and gold coins, the day that Godley was killed. This circumstantial evidence is probative of the defendant's guilty mind, especially in light of the fact that the defendant had told Johnson that he would flee the country if he ever "got in trouble."[17] Furthermore, the defendant did not claim self-defense during his interview with the detectives. Rather, he asked if he was being charged with the type of murder that occurs in the "heat of passion."

         The defendant further asserts that the trial court failed to give the proper limiting instructions to the jury. When "other crimes" evidence is admitted in a jury trial, the court, upon the defendant's request, must charge the jury as to the limited purpose for which the evidence is to be considered. Moreover, the final jury charge must contain an instruction regarding the limited purpose for which the "other crimes" evidence was received. At that time, the court must instruct the jurors that the defendant cannot be convicted of any charge other than the one named in the indictment, or one responsive thereto. State v. Prieur, 277 So.2d at 130. See also, State v. Kennedy, 2000-1554 (La. 4/3/01), 803 So.2d 916.

         The defendant's contention that the other crimes evidence should not have been admitted because the jury was not provided with the limiting instruction is raised for the first time in this appeal. Further, the defendant did not object to the jury charge on these grounds at trial.

         A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. La.C.Cr.P. art. 801(C). Further, it is well established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Delaney, 42, 990 (La.App. 2 Cir. 2/13/08), 975 So.2d 789; State v. Small, 29, 137 (La.App. 2 Cir. 04/02/97), 693 So.2d 180; State v. Plater, 606 So.2d 824 (La.App. 2 Cir. 1992).

         Thus, the requirements of State v. Prieur, supra, notwithstanding, the defendant waived any right to a limiting jury instruction when he failed to request a special jury charge and failed to timely object to the final jury charges.[18] Accordingly, the defendant's assignments of error with regard to the "other crimes" evidence are without merit.

          Evidence of the Victim's "Dangerous ...


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