
    STATE of Louisiana v. Reginald HARDY.
    No. 2014-KK-1569.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   PER CURIAM.

1, Granted. The State seeks supervisory relief from the trial court’s ruling that held the defendant’s two prior burglary convictions are not admissible as other crimes evidence under LSA-C.E. art. 404(B). The court of appeal denied writ. Under the given facts, we conclude the defendant’s two prior burglary convictions are admissible under LSA-C.E. art. 404(B). For reasons that follow, we reverse the ruling of the lower courts and remand this case for further proceedings.

Generally, courts may not admit evidence of other crimes, wrongs or acts of a criminal defendant in order to show that the defendant is a person of bad character who has acted in conformity therewith. LSA-C.E. art. 404(B). However,’ the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. LSA-C.E. art. 404(B). The evidence must tend to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La. 1979).

The State bears the burden of proving that the defendant committed the other | ^crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2 (La.1/10/03), 839 So.2d 932, 933, per curiam, citing State v. Prieur, 277 So.2d 126, 130 (La.1973). Although a criminal defendant’s prior bad acts may be relevant and otherwise admissible under LSA-C.E. art. 404(B), the court must balance the probative value of the other crimes, against its prejudicial effect before the evidence can be admitted. LSA-C.E. art. 403. The probative value of the evidence must outweigh its prejudicial effect of unfair prejudice. Id.; State v. Galliano, 2002-2849, p. 3, 839 So.2d 932 at 933. Probative evidence of prior misconduct will be excluded only when it is unduly and unfairly prejudicial. State v. Germain, 433 So.2d 110, 118 (La.1983). The term “unfair prejudice,” refers to the capacity of relevant evidence to persuade the factfinder into declaring guilt on a ground different from proof specific to the offense charged. State v. Rose, 2006-0402, p. 13 (La.2/22/07), 949 So.2d 1236, 1244, citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

The defendant is charged with simple burglary of an uninhabited dwelling. Police discovered blood evidence on a window glass at the scene of the crime from which a DNA profile was constructed. The defendant was identified via a Combined DNA Index System (CODIS) search.

Simple burglary requires proof of specific intent that the perpetrator who made the unauthorized entry did so with the specific intent of committing a theft or other felony once inside. R.S. 14:62; State v. Ortiz, 96-1609, p. 16 (La.10/21/97), 701 So.2d 922, 932 (“The final key element of the crime of burglary is that the accused must have had the intent to commit a felony at the moment of entry.”); State v. Lockhart, 438 So.2d 1089, 1090 (La.1983) (“At the moment of the unauthorized entry, the actor must intend to commit a felony or theft therein”) Ordinarily, the State would have to prove at trial that the defendant entered the uninhabited dwelling lawith the specific intent to commit a theft therein. The evidence of the prior burglaries would show that the defendant did not enter the unoccupied residence for an innocent purpose. Rather, the evidence of the prior burglaries tends to show that the defendant entered the residence with the specific intent to steal.

We find evidence of defendant’s prior burglary convictions probative because they are sufficiently similar to defendant’s simple burglary charge and are substantially relevant to the question of whether he had the specific intent to commit a theft at the moment he allegedly broke the window (depositing his blood and DNA sample in the process) and entered the residence. Cf. State v. Lewis, 288 So.2d 348, 350 (La.1974). All three burglaries occurred within a half mile of each other, the houses were all unoccupied and entry was gained through the rear of the houses. The current offense was committed within eight days of one of the prior burglaries. In the first burglary conviction the defendant entered through a rear window and police found him in a bedroom searching through a dresser drawer. In the second burglary conviction, police found the defendant pushing a water heater • down the street in a shopping cart. Defendant admitted removing a water heater from the residence. The current burglary charge involves the theft of a stainless steel sink, ceiling fans and a shop vacuum.

We find the State has sustained its burden of proving an independent and relevant reason under LSA-C.E. art. 404(B) for the admission of the previous burglary convictions as other crimes evidence, and the admission of this other crimes evidence is not unduly prejudicial to the defendant. We conclude the trial court abused its discretion in finding the defendant’s prior convictions to be inadmissible under LSA-C.E. art. 404(B). Accordingly, the writ is granted. The judgments of the lower courts are reversed. The case is remanded to the trial court for further ^proceedings.

WEIMER, J., dissents and would grant and docket.

CLARK, J., dissents.

WEIMER, J.,

dissents and would grant and docket.

hi respectfully dissent from the per cu-riam insofar as it finds — without benefit of the record, without full briefing, and without oral argument by the parties — that the district court abused its discretion in denying the State’s motion to introduce at the defendant’s upcoming trial for simple burglary evidence of his two prior convictions for the same offense. Rather than summarily reverse, I would grant and docket this case in order to fully explore the issue presented and, in the process, to provide guidance to the lower courts in navigating the difficult arena of other crimes evidence.

The seminal case on the admissibility of other crimes evidence, State v. Prieur, 277 So.2d 126 (La.1973), was decided over forty-one years ago. Its application remains challenging to this day. In the present case, the trial court, the court most familiar with the facts and history of the case, ruled the evidence of defendant’s two prior burglary convictions inadmissible because the State failed to prove sufficient facts to demonstrate the other crimes evidence more probative than prejudicial and sufficiently unique and distinctive to merit introduction in connection with defendant’s current prosecution for simple burglary. The court of appeal, cognizant of the great discretion afforded the trial court in ruling on the admissibility 12of other crimes evidence, denied writs, explaining: “A review of the record, case law, and the State’s writ application, demonstrates that the trial court did not abuse its discretion in denying the admissions of the defendant’s previous convictions at trial.” Apparently, a majority of this court disagrees with the conclusions below, ostensibly because the offense for which defendant is currently being prosecuted, simple burglary, is a specific intent crime and the evidence of the prior burglaries committed by defendant “satisfies the State’s burden of proving specific intent,” notwithstanding that this defendant’s intent to commit the crime is not an element at issue in this case.

Since Prieur, this court has consistently treated the rule respecting the admissibility of other crimes evidence as a rule of exclusion. Under the long-settled and prevailing jurisprudence, evidence of another similar crime or act should be excluded unless the State meets certain criteria, one of which is that the other similar act or crime is relevant to a “real and genuine [matter in issue], and not one which the prosecution conceives to be at issue merely because of the plea of not guilty.” State v. Moore, 278 So.2d 781, 785 (La.1973) (on reh’g). Thus, a defendant’s plea of not guilty does not, contrary to the majority’s apparent ruling here, automatically open the door to admission of evidence relating to other similar acts.

lain this case, the defendant maintains that his defense to the current charge is that a burglary occurred, but not by his hand and, thus, intent is not a “real and genuine” matter in issue. Without addressing defendant’s argument in this regard, the majority peremptorily opines that the defendant’s prior burglary convictions are “sufficiently similar to defendant’s simple burglary charge” and “substantially relevant” to the issue of specific intent for admission because “[a]ll three burglaries occurred within a half mile of each other, the houses were all unoccupied and entry was gained through the rear of the houses.” However, it would seem a rare occasion, indeed, that a burglary would occur in an occupied property and an even rarer one in which the unauthorized entry would occur through the front door. The trial court recognized as much, opining that “neither of these two incidents [the prior burglaries] ... are sufficiently or uniquely similar” or “peculiarly distinctive enough ... to merit introduction.” Moreover, to reiterate, the defendant maintains that intent will not be a contested issue at trial and, thus, the other crimes evidence does not “tend to prove a material fact at issue or ... rebut a defendant’s defense,” which even the majority recognizes as a requirement for admissibility of other crimes evidence. Given these circumstances, I find it difficult to conclude, without the further study and deliberation that briefing, argument .and a considered opinion would provide, that the trial court abused its discretion in excluding the evidence, at least in the state’s case |4in chief. I would, therefore, grant the State’s writ application and docket the matter for briefing, argument, and an opinion.

CLARK, J., dissents.

hi respectfully dissent. 
      
      . State v. Wright, 11-0141, p. 10-11 (La. 12/6/11), 79 So.3d 309, 316.
     
      
      . State v. Hardy, 14-0467 (La.App. 4 Cir. 7/21/14) (unpub'd writ denial).
     
      
      . State v. Hardy, No. 14-1569, Op. at 539 (La. Nov. 2014).
     
      
      . This is in sharp contrast to the federal approach, which deems Federal Rule of Evidence 404(b) "a rule of inclusion,” by which "evidence of a prior crime should be excluded only when its sole relevance goes to the character of the defendant.” United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003) (internal quotation marks and citation omitted). Under the federal approach, a plea of not guilty would open the door to admission of evidence respecting other similar acts relevant to the essential element of specific intent required by the offense being tried. Id.
      
     
      
      . State v. Hardy, No. 14-1569, Op. at 539.
     
      
      . Id., at 538, citing State v. Martin, 377 So.2d 259, 263 (La. 1979).
     
      
      . If, as the trial unfolds, the defendant places intent at issue in some manner, the admission of other crimes evidence on rebuttal could be justified. See Prieur, 227 So.2d at 129 n. 2 ("If in the utterly unlikely event the defendant had injected such an issue [regarding knowledge and intent in the case of armed robbery], then only could the State conceivably have properly contended that such evidence was admissible in rebuttal to show knowledge or intent."). Otherwise, the state, in its case-in-chief, should be confined to other methods of proving the element of intent.
     