State v. Ard

• Decision Date: 28 April 2021
• Docket Number: 20-KA-221
• Citation: 347 So.3d 1046
• Parties: STATE of Louisiana v. Terez ARD
• Court: Court of Appeal of Louisiana — District of US

347 So.3d 1046

STATE of Louisiana

v.Terez ARD

NO. 20-KA-221

Court of Appeal of Louisiana, Fifth Circuit.

April 28, 2021

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Andrea F. Long, Kellie M. Rish, Christina Fisher

COUNSEL FOR DEFENDANT/APPELLANT, TEREZ ARD, Bertha M. Hillman

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

CHEHARDY, C.J.

Defendant, Terez Ard, appeals his conviction and sentence for domestic abuse battery by strangulation. On appeal, defendant contends that the district court erred in allowing the admission of other crimes evidence at trial. For the reasons that follow, we find no merit to defendant's argument, and accordingly, affirm his conviction; his sentence is vacated and remanded for resentencing in accordance with La. R.S. 14:35.3(C) ; and, this case is remanded with instructions.

PROCEDURAL HISTORY

On March 21, 2019, the Jefferson Parish District Attorney filed a bill of information charging defendant, Terez Ard, with domestic abuse battery by strangulation in violation of La. R.S. 14:35.3(L). At his arraignment, defendant pled not guilty to the charged offense.

Prior to trial, the State filed a notice of intent to introduce evidence of other acts engaged in by defendant pursuant to La. C.E. arts. 404(B) and 412.4. In its notice, the State explained that defendant was charged with a previous domestic incident involving the same victim. The State indicated its intention to introduce evidence that on August 15, 2017, defendant committed a prior act of domestic abuse against this same victim, wherein defendant broke the victim's front door and an interior door after an argument, and that the charges were refused by the district attorney's office. The State's notice specified that it sought the introduction of such evidence pursuant to La. C.E. art. 412.4 and for the purpose of establishing intent, motive, plan, preparation, knowledge, opportunity and lack of mistake or accident pursuant to La. C.E. art. 404(B)(1). The State's notice further explained that "[t]aken as a whole, these acts illustrate the volatile nature of their relationship and an escalation of physical violence at the hands of the defendant."

A Prieur hearing was held on September 16, 2019, at which time the State introduced exhibits and both parties presented argument. The State argued that the August 15, 2017 prior incident stemmed from the "very same" argument involved in the subject incident—the parties’ relationship. The police reports from both incidents were admitted into evidence. Additionally, an affidavit from the victim was admitted in which she attested that she "mitigated" the prior incident in order to help defendant. The State argued that it anticipated that in the instant case, the defense would claim that defendant acted in self-defense and that the victim was the primary aggressor in the incident, but that the evidence concerning the prior incident showed that the victim has had to fend off the defendant's aggressive behavior before when discussing their dating relationship, and that the evidence established a "pattern of behavior" by defendant. In response, defense counsel argued that admission of the evidence regarding the prior 2017 incident would confuse and distract the jury, and that the prejudicial nature of the evidence outweighed its probative value. The trial court overruled defendant's objection to the introduction of evidence of the prior act.

On February 12, 2020, after a two-day trial, the jury unanimously found defendant guilty as charged. Defendant filed a motion for new trial on March 4, 2020, asserting that he did not receive a fair trial because the State was permitted to elicit the testimony of minor children, and because the trial court denied him the opportunity to submit evidence of two prior incidents between himself and the victim, which would have shown the victim, not defendant, as the aggressor and would have supported his claim of self-defense. The district court denied defendant's motion for new trial on March 5, 2020.

Also on March 5, 2020, after defense counsel waived sentencing delays, the trial court sentenced defendant to three years imprisonment with the Department of Corrections. Thereafter, the State filed a multiple offender bill of information alleging defendant to be a third-felony offender, to which defendant stipulated. The trial court vacated defendant's original sentence and resentenced him to four years imprisonment with the Department of Corrections without benefit of probation or suspension of sentence. Defendant timely filed a motion for appeal of the verdict and sentence, which the trial court granted. On appeal, defendant challenges the admissibility of the evidence of the prior act occurring on August 15, 2017, on grounds that the evidence was more prejudicial than probative.

FACTS

Defendant and the victim, Fabriana Hamilton (hereinafter "the victim"), met their junior year of high school and had an on-again off-again sexual relationship for approximately fourteen years.¹ During the summer of 2017, defendant moved into her home located in Avondale, Louisiana. When defendant was not residing with the victim, he lived with his grandmother, who resided nearby in Avondale.

In January 2019, defendant and the victim were still seeing each other, but no longer living together. While the relationship was "good at first," defendant would take a "break" in the relationship for a few days at a time in order to be with other women. On January 23, 2019, defendant and the victim were communicating by text during the early part of the day regarding defendant's desire to take another break in the relationship, and the victim indicating that she was done with the breaks.

At approximately 9:00 that evening, accompanied by her children and a friend, Tatiana Bahem, the victim drove her vehicle into a gas station. Defendant drove into the gas station at the same time and asked the victim to fill up his vehicle with gas, but she refused. The victim asked defendant whether he planned to come by her house that evening, to which he replied that he did not. They exchanged a few more words and then defendant drove off. After leaving the gas station, the victim and defendant began texting, wherein defendant reiterated his desire to take a break as the relationship was no longer working for him. The victim replied that she was done with breaks stating, "[N]o breaks say f*** it and be done[.] It'll hurt but dems the breaks. So wyw ["what do you want"] to do? Let me know cuz a break means [it's] over." When defendant did not respond to her messages sent at 9:32 and 9:33 p.m., the victim and Ms. Bahem proceeded to defendant's grandmother's house, where the victim knew defendant would be, because she wanted an answer from defendant as to whether or not the relationship was over "so it could be done." Based on her prior history with defendant, and knowing that he tended to "get irate" whenever he was intoxicated, the victim took her son's aluminum bat with her for protection.

When the victim and Ms. Bahem arrived at the house, defendant was in his car with his brother and a friend. The victim approached defendant's car and asked him what it was going to be, and he replied that "it was a break up." According to the victim, she did not brandish the bat or otherwise threaten defendant with it. She told him not to contact her or her children again and not to come to her house again. When the victim left to return to her home, the insulting text messages from defendant continued until she eventually blocked him.

Defendant, however, claimed that when the victim arrived at his grandmother's house, she was demanding an answer about their relationship and appeared to be aggressive with the bat, tapping it against his car window. He contended that he did not exit his vehicle because he did not want her to hit him with the bat. Also, according to defendant, approximately fifteen minutes after the victim left his grandmother's house, she called him and invited him to come to her house so that they could talk, which he agreed to do.

About fifteen minutes after arriving back at her home, the victim was alerted by Ms. Bahem, who had gone outside to retrieve a phone charger, that defendant was outside the house. When the victim went outside, she claimed she told defendant to go home, but that defendant, who was standing next to his car, began throwing trash onto her yard and yelling profanities. According to the victim, before defendant left, he threw a beer bottle that hit her car. The victim testified that she picked the bottle up and threw it back at him, hitting the back panel of his car as he started to drive off. Defendant returned, retrieved the bottle, and threw it back at the victim. She stated that she caught the bottle and hurled it at defendant and missed as defendant sped away.

Thinking defendant had left, the victim testified that she walked back to her house, only to realize that defendant had returned. She then grabbed her child's aluminum bat as defendant exited his vehicle, "fussing and cussing," and aggressively approached her. After telling defendant to leave with no success, the victim stated that she pushed, but did not hit, him with the bat. The victim testified that she was afraid defendant would go into her house where her children were watching from inside. Defendant then grabbed the bat from the victim and hit her on her arm and thigh. She threatened to call the police. Defendant then rushed toward her, and wrestled her to the ground. The victim bit defendant in an effort to get him off of her and he bit her back. At one point during the melee, defendant rolled over on top of her and began choking her, putting both of his hands around her neck and digging his thumbs into her throat. The victim stated that she then dug her fingers into defendant's eyes.

According to Bahem, who was an...