State Of Louisiana VS Michael Anthony Wright
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0858 STATE OF LOUISIANA VERSUS MICHAEL ANTHONY WRIGHT Judgment Rendered DEC 2 2 2010 On Appeal from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 440135 Honorable William J Crain Judge Presiding Walter P Reed PlaintiffAppellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Assistant District Attorney Baton Rouge Louisiana Frank Sloan Mandeville Louisiana Counsel for DefendantAppellant Michael Anthony Wright B FORE WHIPPLE McDONALD AND McCLENDON JJ A 9M C MCCLENDON J Defendant Michael Anthony Wright was charged by bill of information with aggravated incest a violation of LSAR 14 S 78 1 Defendant entered a plea of not guilty After a trial by jury defendant was found guilty as charged He was sentenced to eighteen years imprisonment at hard labor Defendant now appeals assigning as error the admission of other crimes evidence and the trial s court denial of his motions for mistrial For the following reasons we reverse the conviction vacate the sentence and remand for a new trial STATEMENT OF FACTS While the specific dates are uncertain the instant offense was alleged to have occurred between February 15 2007 and February 21 2007 during Mardi Gras festivities when defendant and the victim stayed at the La Quinta Inn in Slidell Louisiana Defendant is the father of the seventeenyearold victim in this case B who was born as a result of defendant sporadic relationship with the K s s victim mother According to the victim mother during B early teenage s s K years he began to get into trouble at school and home She contacted defendant and B began living with defendant when he was thirteen years old K on a discontinuous basis According to B he and defendant smoked crack cocaine marijuana K took pain pills and consumed alcohol during 2007 Mardi Gras festivities The victim further indicated that he and defendant got into a couple of fights and stated that while they were staying at the La Quinta Inn defendant had me do oral sex on him The victim further stated we stayed another night and we did anal sex twice The victim confirmed that the intercourse was painful and while he ultimately asked defendant to stop he did not fight because he was scared defendant would physically hurt or beat him The victim had turned K seventeen years old on February 10 B reported the incidents to his maternal 1 Herein we reference the victim whose date of birth is February 10 1990 by initials only See LSA R 46 S 1844W 2 grandmother and mother before making a statement to the police on July 22 2007 at his mother insistence s OTHER CRIMES EVIDENCE In the first assignment of error defendant contends that the trial court abdicated its authority by permitting the state to ignore the in Amine ruling that evidence or testimony regarding the age of defendant wife was inadmissible at s trial Defendant further argues that the prosecutor violated Rule 3 of the e 4 Louisiana Bar Association Rules of Professional Conduct in alluding to a matter of which evidence was inadmissible that is the age of defendant wife during s opening arguments Defendant contends that the trial court erred in denying the motion for mistrial in this regard Defendant also contends that the state further elicited inadmissible testimony from the victim mother regarding defendant s s wife Arguing that the testimony implied that there was something illegal about the sex acts between defendant and his wife defendant contends that the trial court erred in finding the testimony admissible Defendant also notes that the state elicited testimony from defendant regarding his wife age during cross s examination and that the trial court repudiated its pretrial ruling by finding that testimony about defendant sexual relationship with his wife was admissible s because of credibility issues In the third assignment of error defendant in pertinent part argues that the erroneous admission of other crimes evidence was not harmless in this case Defendant notes that the jury was presented with a credibility choice between him and the alleged victim He further states that his trial testimony established that he had no history of homosexual behavior Defendant also notes that trial testimony indicated that the victim had a history of anti social and belligerent behavior In this case the state filed a notice of intent to introduce evidence of other crimes by defendant including sexual acts with a fourteen yearold female 3 herein identified as B C 2 The notice further stated that on August 5 2005 defendant traveled to Texas to marry B who was six months pregnant and C fourteen years old at the time The state intended to introduce the evidence pursuant to LSAC art 412 to show that defendant has a lustful disposition E 2 to sexually assault young children In ruling on the admissibility of the evidence the trial court noted that the instant case involves sexually assaultive behavior upon defendant biological child s Comparing the acts alleged in the instant offense to the acts involving B the trial court found that they were of a C disparate nature and that the probative value of the other acts would be C significantly outweighed by its prejudicial effect The trial court noted that B is a female who defendant married and had a child with and that the instant case involves defendant seventeen yearold son s Thus the trial court disallowed the evidence with regards to the age of the female at the time they began their sexual involvement and actually had a child together As noted by defendant the trial court also warned the state that the introduction of such evidence would result in a mistrial As further noted by defendant during its opening remarks the state informed the jury that while living with defendant the victim introduced defendant to B and that defendant married B when she was fourteen years C C old The defense immediately moved for a mistrial The trial court denied the motion for mistrial noting that the prosecutor statement did not constitute s evidence of a criminal act or wrong but warned the state to heed the pretrial ruling During the direct examination of the victim mother the state inquired s as to the victim response when she instructed him to report the incident to the s police and the following response was elicited He didn want to call the police t because he said his father gets away with everything And he said that when he reported his father having sex with B C mistrial The defense again moved for a The trial court denied the motion finding the statement was not z The state also gave notice of its intent to introduce evidence of defendant acts of domestic s violence against B which the trial court ruled admissible C M prejudicial considering previous testimony that defendant and B were married C The trial court also noted that during its opening statement the defense raised the possibility of the victim making a false report in this case and seemingly implied that such a defense may ultimately lead to the admissibility of the other crimes evidence at issue Finally during cross examination of defendant the state asked defendant how old B was when he married her and defendant responded that B was C C fourteen years of age Defendant objected The trial court noted the victim s prior testimony that he and B were schoolmates and that the issue of B C s C age was at the forefront because the victim and defendant credibility had been s drawn as critical issues further noting the absence of physical evidence Considering defendant testimony the credibility issues in the case and the s need to complete the picture the trial court amended its prior ruling and found the evidence admissible Thereafter the state fully questioned defendant regarding the matter including eliciting testimony as to how many months pregnant B was when defendant married her and the fact that defendant was C married to another woman when he impregnated B C Mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive him of a fair trial State v Booker 02 1269 pp 17 18 La 1 Cir 2 839 So 455 467 writ App 03 14 2d denied 031145 La 10 857 So 476 A trial court ruling denying a 03 31 2d s mistrial will not be disturbed absent an abuse of discretion State v Givens 993518 p 12 La 1 776 So 443 454 01 17 2d Article 401 of the Code of Evidence provides that relevant evidence is any 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 Evidence of other crimes wrongs or acts is generally inadmissible to impeach the character of the accused LSA C E art 4048 see State v Talbert 416 So 97 99 La 1982 State v Prieur 2d 277 So 126 128 La 1973 To avoid the unfair inference that a defendant 2d l committed a particular crime simply because he is a person of criminal character other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition State v Lockett 99 0917 P 3 App La 1 Cir 2 754 So 1128 1130 writ denied 001261 La 00 18 2d 01 9 3 786 So 115 2d However such evidence may be admissible to prove motive opportunity intent preparation plan knowledge identity absence of mistake or accident LSA C art 4046 E 1 Louisiana Code of Evidence article 2A 412 provides is charged with a crime involving sexually assaultive behavior or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense evidence of the accused commission of another s crime wrong or act involving sexually assaultive behavior or acts When an accused disposition toward children may be admissible and may be considered for its bearing on any matter to which indicate a lustful which it is relevant subject to the balancing test provided in Article 403 The state bears the burden of proving that the defendant committed the other crimes wrongs or acts State v Rose 060402 p 12 La 2 949 07 22 E 2d So 1236 1243 In accordance with LSA C art 403 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 Thus evidence of a prior sexual offense is admissible under Article 412 if it is relevant and its probative 2 value outweighs its prejudicial value Article 412 was a legislative response to earlier decisions from the 2 Louisiana Supreme Court refusing to recognize a lustful disposition exception to the prohibition of other crimes evidence under LSA C art 404 The language E of Article 412 closely follows Federal Rule of Evidence 413 2 jurisprudence interpreting the federal rule is highly instructive Thus the See State v Wright 980601 La 1 Cir 2 730 So 485 489 writs denied 99 App 99 19 2d 0802 La 10 748 So 1157 99 29 2d 00 0895 La 11117100 773 So 732 2d The federal courts have determined that Federal Rule of Evidence 413 is based upon the premise that evidence of other sexual assaults is highly relevant to 1 prove the propensity to commit like crimes and often justifies the risk of unfair prejudice See U v Guardia 135 F 1326 132830 10th Cir 1998 S 3d Article 412 has been consistently applied to allow the introduction of evidence 2 of prior uncharged misconduct in cases where a defendant has engaged in sexually inappropriate behavior with minor individuals similar to the charged misconduct See State v Verret 061337 La 1 Cir 3 960 So App 07 23 2d 07 16 2d 208 222 writ denied 070830 La 11 967 So 520 State v Williams 41 La 2 Cir 1 950 So 126 131 32 writ denied 731 App 07 24 2d 070465 La 11 966 So 599 State v Mayeux 06944 La 3 Cir 07 2 2d App 07 10 1 949 So 520 528299 2d Generally a trial court ruling on the s admissibility of evidence of other crimes will not be overturned absent an abuse of discretion State v Galliano 02 2849 pp 3 4 La 1 839 So 03 10 2d 932 934 per curiam Louisiana Code of Criminal Procedure Article 770 provides that a 2 mistrial shall be granted when a remark or comment is made referring to other crimes of which the evidence would have been inadmissible Moreover an attorney is prohibited from alluding to any matter that the attorney does not reasonably believe is relevant or that will not be supported by admissible evidence State Bar Articles of Incorporation Art XVI Rules of Professional Conduct Rule 3 The standards in the Rules of Professional Conduct have e 4 See Succession of Cloud 530 So 2d the force and effect of substantive law 1146 1150 La 1988 In this case we agree with the trial court initial finding and ruling that s the evidence of the defendant sexually assaultive behavior with a female child s whom he ultimately married and bore a child with is not similar to the charged misconduct in this case homosexual incestuous sexual intercourse with his seventeen year old biological son or admissible under Article 412 2 We find further that the other crimes evidence had no independent relevancy besides simply showing a criminal disposition 1080 La 1981 See State v Lafleur 398 So 1074 2d The evidence was impermissibly introduced to attack the 7 character of the accused Any probative value this evidence may have is far outweighed by the danger this evidence would unfairly prejudice defendant in the eyes of the jury leading it to render a guilty verdict because of the prior acts rather than on the strength of the evidence of the offense for which he was charged Thus the evidence is barred by the balancing test of Article 403 The erroneous admission of other crimes evidence is a trial error subject to a harmless error analysis State v Johnson 941379 La 11 664 95 27 2d So 94 101 The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error Sullivan v Louisiana 508 U 275 279 113 S 2078 2081 124 L 182 1993 S Ct 2d Ed Herein the verdict was based solely on a credibility determination Considering there was no physical evidence in this case and the evidence against defendant consisted solely of the victim testimony we cannot conclude that the guilty s verdict actually rendered in this trial was surely unattributable to the erroneously introduced evidence Based on the foregoing assessment the remarks and other crimes evidence presented by the prosecution were inadmissible and prejudicial The trial court erred in admitting the evidence in question and abused its discretion in denying the motions for mistrial in this regard The conviction must be reversed and the case remanded to the trial court for a new trial Finding merit in this assignment of error we pretermit discussion of assignment of error number two We further pretermit discussion of assignment of error number three to the extent that it has not been addressed above CONVICTION REVERSED SENTENCE VACATED AND REMANDED FOR A NEW TRIAL
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