author: KIMBALL, Justice.

text:
    STATE of Louisiana v. Randy ROSE.
    No. 2006-K-0402.
    Supreme Court of Louisiana.
    Feb. 22, 2007.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Meri M. Hartley, Assistant District Attorneys, for Applicant.
    Kevin Vincent Boshea, New Orleans, for Respondent.
   KIMBALL, Justice.

h This case involves the issue of the admissibility of other crimes evidence in defendant’s trial for the second degree murder of his wife. The trial court concluded the evidence of other crimes sought to be introduced by the State, which included defendant’s previous conviction for the manslaughter of his former wife, his convictions for violence perpetrated against his former wife, and his arrest for domestic violence against his wife, were admissible. The court of appeal reversed this determination, finding the crimes were too dissimilar to be independently relevant. We conclude the evidence of other crimes is highly probative to show defendant’s identity, pattern, system and motive, and his vicious attitude toward women with whom he shares a close personal relationship. We further conclude the other crimes evidence is not unduly or unfairly prejudicial and that its probative value outweighs its prejudicial effect. Accordingly, we reverse the judgment of the court of appeal and remand the case to that court for it to consider defendant’s remaining | ^assignment of error.

Procedural History

Defendant, Randy Rose, was charged by grand jury indictment on January 29, 2004, with second degree murder of his wife, Lisa James Rose, a violation of R.S. 14:30.1. He pled not guilty at his arraignment on February 3, 2004. The State filed a notice of intent to use evidence of other crimes in conformity with State v. Prieur, 277 So.2d 126 (La.1973), and La. C.E. art. 404(B). The notice indicated the State intended to introduce evidence regarding the defendant’s prior conviction of manslaughter of his former wife, prior physical violence involving his former wife, and pri- or physical violence involving the victim. A Prieur hearing was held on March 24, 2004, after which the trial court granted the State’s request and ruled that the other crimes evidence was admissible to prove intent and a system or a plan. The trial court found that the probative value of the evidence outweighed its prejudicial effect. Upon defendant’s application for supervisory writs, the court of appeal granted defendant’s writ application, but denied relief. State v. Rose, 04-0693 (La.App. 4 Cir. 5/20/04) (unpub’d). This court subsequently denied defendant’s writ application. State v. Rose, 04-1374 (La.6/16/04), 876 So.2d 788.

Defendant’s trial took place on August 30 and 31, 2004. A twelve-person jury found defendant guilty as charged. The trial court denied the defendant’s motion for a new trial and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence.

On appeal, the court of appeal reversed defendant’s conviction and sentence based on its finding that the trial court clearly and convincingly erred in permitting the introduction of evidence of prior crimes committed by defendant. State v. Rose, 05-0396 (La.App. 4 Cir. 1/18/06), 925 So.2d 34. The court acknowledged various ^similarities between the two homicides, including the facts that both involved the wife of defendant, both involved close physical contact of an especially brutal nature, both were committed in defendant’s home, both occurred after a previous incident of violence by the defendant against his wife, both followed a recent separation between defendant and his wife, and both were followed by defendant fleeing- the state. Id., 05-0396 at pp. 21-22, 925 So.2d at -. 46-7. Nevertheless, the court found that “the similarities between Ms. Rose’s murder and the other crimes that [defendant] was previously charged with are not substantially similar to the crime in the case at bar.” Id., 05-0396 at p. 22, 925 So.2d at 47.

This court granted certiorari to review the correctness of the court of appeal’s judgment. State v. Rose, 06-0402 (La.11/9/06), 941 So.2d 28.

Facts

On November 24, 2003, Ms. Rose was found dead in her bathtub, lying nude in the fetal position with her head beneath the faucet. A number of partially dissolved white pills were observed on top of her head and on portions of her body, suggesting that the tub had been previously filled with water. No signs of forced entry to the residence existed. After an autopsy, Ms. Rose’s death was classified as a homicide and the cause of death as manual strangulation. At trial, the pathologist placed the time of death as occurring approximately 10 to 18 hours before his 8:00 a.m. examination of the body on November 25, 2003.

Ms. Rose resided with defendant and her young adult children, Ashley James (“Ms.James”) and Allen James (“Mr. James”). Mr. James .testified that on the morning of November 24, 2003, his mother awakened him at approximately 9:00 a.m. Soon thereafter, Mr. James heard Ms. Rose and defendant, his stepfather, arguing over a traffic ticket. He noted that his stepfather was quite angry. Ms. Rose dropped |4Mr. James off at work at the Oakwood Mall at approximately 9:30 a.m. Ms. Rose was scheduled to attend a doctor’s appointment that morning at 10:00 a.m. and had planned to pick Mr. James up from work at 4:00 p.m.

Mr. James testified that before he and Ms. Rose left their home, defendant asked Mr. James if he planned to come home between his two jobs. Mr. James told him that he did not. Mr. James testified that he felt strange after his stepfather made this particular inquiry because it was unusual that he would ask him about his whereabouts for the day. Mr. James further testified that on that morning he observed his stepfather wearing a blue skull cap and his mother wearing a brown colored sweat suit.

Ms. James testified that her mother drove her to Delgado Community College on November 24, 2005. Ms. James recollected that they left the house at approximately 8:10 a.m. Ms. James returned home between 9:45 a.m. and 10:00 a.m. to retrieve a set of keys. When she arrived home, Ms. Rose, defendant and Mr. James were still at home. Ms. James then left her home and went to a friend’s house. While at her friend’s house, she reviewed some of her study guides and then called Richard Wilson, a close family friend with whom she maintained a relationship. Mr. Wilson, unable to take her call, put her on hold, and she eventually hung up and returned to school.

Ms. James’s last class ended sometime around 1:00 p.m. She waited at school until approximately 2:00 p.m. for her boyfriend to pick her up. After he arrived, she went back to her house to drop off her books and to pick up a check. Her boyfriend stayed in the car. She related that the house looked normal at that time and that it was Rquiet. The lights were off except for the bathroom light, which was normally kept on, and no one appeared to be home. She did not go into the bathroom. Ms. James then went shopping at several area shopping malls. That afternoon she received a call from her brother alerting her that no one had picked him up after work and that he needed a ride to his second job. Ms. James telephoned her grandmother and arranged for her to pick up her brother.

After completing a few more errands, Ms. James called her mother’s best friend and told her that she had not heard from her mother and that she had been looking for her all day. Ms. Rose’s friend agreed to meet Ms. James at the family’s house. The two arrived at the house at the same time. The door was locked. Once inside, Ms. James began telephoning hospitals and the police to see if anything had happened to her mother or stepfather. Ms. James observed that her stepfather’s lunch for work was still in the refrigerator. She noticed that the bathroom light was still on and that the area around the sink was in disarray, which she knew would upset her mother, so she entered. At that point at approximately 8:00 p.m., she found her mother’s lifeless body in the bathtub. She touched her mother’s body, but could not move her because her arms and everything “were like hard, solid.” She called 911.

The next morning, when Ms. James returned to the house, she was unable to locate the clothes her mother had worn the previous day. She noticed that the trash bag was missing from the kitchen garbage can. Detective Ronald Ruiz of the New Orleans Police Department came to the house to inform her of the results of the autopsy. Ms. James mentioned that her mother’s clothes and the trash bag were missing. She also noted that on occasion her stepfather would take their trash to the dumpster around the corner. Shortly thereafter, Detective Ruiz telephoned Ms. James and asked if she could come to the dumpster to identify some clothing that he had | ^recovered. She went immediately and identified her mother’s underwear, bra, sweat pants and top that her mother had been wearing the previous day. She also identified the shirt her stepfather had been wearing the previous day, a pair of his socks and his blue skullcap. She also identified a towel from their bathroom and a pillow that her mother had made for her, as well as a pair of her own socks.

Richard Wilson testified that he had a close friendship with Ms. Rose for many years beginning when her children were toddlers. He stated that he had helped raise the children as if they were his own. Subsequently, Mr. Wilson married another woman and his relationship with the children became much more limited. Nevertheless, he maintained contact with them over the years. Mr. Wilson recalled that on the morning of November 24, 2003, he received a telephone call from Ms. James at work between approximately 9:45 a.m. and 10:00 a.m. He was forced to place her on hold, and when he got back to the call the two had been disconnected. Assuming she had called him from her home, Mr. Wilson then called Ms. James back and defendant answered the phone. Mr. Wilson explained to the defendant he was calling for Ms. James. Defendant became upset and refused to believe Mr. Wilson. Defendant insisted that he was calling to speak to Ms. Rose and accused him of having an affair with her. Mr. Wilson testified that in the course of the telephone conversation, the defendant made a threatening statement to the effect of, “I’m going to bring the heat.” Defendant eventually ended the conversation by hanging up.

Candice Mitchell testified that on November 24, 2003, the defendant came to her house in Gretna between 2:30 p.m. and 3:00 p.m. The defendant and Ms. Mitchell spoke for a while and he asked if he could use her car to go to traffic court. Ms. Mitchell recalled that traffic court was scheduled to begin at 5:00 p.m. and defendant left her home at 4:00 p.m. The defendant was expected to return the car 17shortly after traffic court but he failed to do so. She reported her car missing around midnight. Early the next morning, defendant called Ms. Mitchell twice, once from Lake Charles, Louisiana, and once from Houston, Texas.

Detective Ronald Ruiz testified that on November 24, 2003, at approximately 7:45 p.m., he was dispatched to the Rose residence to investigate a possible homicide. Upon his arrival, he discovered Ms. Rose’s lifeless body in the bathtub and also observed the undissolved pills on top of her head and in the tub. An autopsy subsequently revealed that Ms. Rose did not have any drugs or alcohol in her system. The pills appeared to have been scattered about her body in an attempt to stage a scene of suicide. He noted that no signs of forced entry to the residence existed. He also discovered that there was a message on the family answering machine from the Medicaid Office regarding rescheduling Ms. Rose’s appointment that she apparently had missed on the day of her death. Detective Ruiz recounted finding the items identified by Ms. James as coming from the Rose household in the dumpster near their house. Detective Ruiz further recounted that although a scratch was present on defendant’s hand at the time of his arrest, DNA evidence revealed blood underneath Ms. Rose’s fingernail to be her own. Further, he stated that although Randy Rose’s clothes found in the dumpster were tested for hair, blood and fibers, no evidence was found.

When called later by the defense, Detective Ruiz further testified that he applied for a search warrant for a blood sample from defendant. In his request for the search warrant, he stated the time of Ms. Rose’s death was between 10:00 a.m. and 11:00 a.m., which was the time he had obtained from the pathologist, Dr. Liuzza.

Dr. Gerald Liuzza, a witness accepted as an expert in the field of forensic pathology, testified regarding the autopsy he performed on Ms. Rose. Dr. Liuzza | ^classified Ms. Rose’s death as a homicide caused by manual strangulation. Dr. Liuzza’s examination revealed petechial hemorrhages on the victim’s eyelids, which were reflective of an increase in blood pressure to the head and neck area caused by some constriction about the head and neck. A small scrape was detected on the outside of the neck, and bruising in three separate areas was present in the long slender muscles that run along the inside of the neck and near the voice box. Petechial hemorrhages were also detected on the inside of the voice box. Also, an area of hemorrhage was found along the hyoid bone above the voice box. Pulmonary edema fluid was found in the voice box. Two areas of hemorrhage were detected on the back of the head. Bruising was also detected at the base of the tongue. Dr. Liuzza opined that a significant amount of force was required to have disrupted tissues at the level that he observed. He placed the time of death as occurring approximately 10 to 18 hours before his 8:00 a.m. examination of Ms. Rose’s body on November 25, 2003. Dr. Liuzza also noted the toxicology results were negative for the presence of drugs or alcohol.

Betty Rose, defendant’s mother, testified that on November 24, 2003, defendant arrived at her house at approximately 10:30 a.m. and left at around 2:00 p.m. She also explained that the defendant had been living with her “on and off” for the months preceding Ms. Rose’s death because the couple were arguing and Ms. Rose had placed defendant under a peace bond.

In his own defense, defendant testified he and Ms. Rose did not argue on the morning of her death, rather, they simply discussed his court hearing and the expense of paying the traffic ticket at issue. Defendant stated that he was not home when Ms. Rose returned from dropping her son at work because he left his home sometime between 10:00 a.m. and 10:15 a.m. to go to his mother’s house.

| gDefendant acknowledged having the telephone exchange with Mr. Wilson, but denied that it was heated and that he accused Mr. Wilson of having an affair with Ms. Rose. Nevertheless, defendant acknowledged he did believe Mr. Wilson wanted to return to a relationship with Ms. Rose.

After defendant visited with his mother until approximately 1:30 p.m. or 2:00 p.m., he went to Ms. Mitchell’s house and asked to borrow her car to go to court. On his way to court, he decided to skip his court hearing and, instead, drove around. As he was driving, defendant testified he was thinking about how to get the money to pay the traffic ticket the néxt morning. At about 7:00 p.m., he telephoned his mother. His sister answered the phone and reported to defendant that Ms. James had called and was screaming that the defendant had killed her mother. Defendant told his sister that he did not murder Ms. Rose. Defendant further testified that at this point he panicked and just started to drive. After driving to Texas, defendant collected his thoughts and realized he had no reason to run. He returned to Louisiana and turned himself in to authorities at the Fourth District Police Station in New Orleans.

Other Crimes Evidence

Homicide of Monica Young Rose. Lieutenant Curtis Snow of the Jefferson Parish Sheriffs Office testified that on November 18, 1991, a 911 dispatcher alerted him that Betty Rose (defendant’s mother) had called to report her son had killed his wife and he was returning to the scene to kill himself. Lt. Snow was the first officer at the scene. After the arrival of other officers to the scene, he kicked the door of the apartment open, and after turning on the lights, observed a pair of legs protruding from behind the kitchen counter on the floor. He removed a blanket, which was partially covering the victim, and observed that the victim had sustained multiple stab wounds to the upper chest area. Lt. Snow testified that he learned that defendant and ImMonica Rose had separated in September of 1991. An arrest warrant was issued for defendant. After the commission of the crime, defendant had fled the area, first to Biloxi, Mississippi, and then to Atlanta, Georgia, eventually turning himself in to the FBI in Atlanta. The defendant was charged with second degree murder and ultimately pled guilty to the lesser offense of manslaughter. At the time of Ms. Rose’s murder, defendant was on parole from his manslaughter sentence. A certified copy of the conviction was introduced at trial.

Defendant admitted he killed his first wife. Defendant acknowledged that his marriage to Monica Rose began breaking up a few months after they were married. At the time she was killed, she had moved out of the house and defendant had found his own apartment. On the night of her homicide, Monica Rose brought defendant some groceries. Defendant explained that he had worked almost 30 hours straight without any sleep and that, at the time, he felt he was in danger because his wife had previously threatened his life. He testified they began to argue, she reached for a kitchen knife, they struggled over the knife, and she ended up dead. Defendant denied stabbing Monica Rose 18 times, stating that it was only three.

Violence Involving Monica Young Rose. Defendant was convicted of unauthorized use of a movable, illegal use of a firearm and aggravated assault in 1990 after he fired several shots into the car owned by Monica Young Rose, then his fiancee. The State introduced a certified copy of these convictions. Regarding this incident, defendant stated he began carrying a firearm after Monica Young Rose’s family threatened him. He stated that he was driving and saw her driving her car. She presented what looked to him like a firearm, and he discharged his weapon. Defendant denied running her off the road and hitting her car, claiming that her car veered into the car he was driving. His car, which he had borrowed, was inoperable |T1and he took her car after she ran inside the residence where she worked because he was scared and needed to go some place where he could calm down. After talking to his mother that same day, they decided defendant would turn himself in to the police.

Violence Involving Lisa James Rose. Ms. Rose called the authorities in August 2003 after the defendant allegedly struck her. Officer Tindell Murdock testified that on August 25, 2003, he responded to a complaint of domestic violence at the home of defendant and Ms. Rose. He was met by Ms. Rose who informed him that she had been involved in a verbal argument with her husband that morning at approximately 9:00 a.m. Ms. Rose stated defendant had become angry because she did not want to look at him as he talked to her. She related that defendant then grabbed her by the head and forced her to look at him. When she attempted to pull away he began striking her with his fist about the head, face and body. Officer Murdock observed that Ms. Rose’s upper and lower lips were bruised and that she had minor swelling to her face and arms. He also noticed bruising on both of her arms. Officer Murdock completed the incident report and sent out a bulletin for defendant’s arrest on the charge of acts of domestic violence, to wit: battery. The State introduced a photograph of Ms. Rose’s injuries into evidence.

Defendant explained that the injuries depicted in the photograph of Ms. Rose were not caused by his beating her but by his holding her. He stated they were having an argument, she started to swing at him, and he held her down. He acknowledged that she put a peace bond on him. He stated that soon thereafter she began to call him at his mother’s house because she wanted to see him and that when they went to court she withdrew the battery charge.

112Discussion

The State contends the court of appeal erred in finding that the other crimes evidence was improperly admitted into evidence and in consequently reversing defendant’s conviction. The State argues that the other crimes evidence was admissible as it showed an established history and pattern of spousal abuse and eventual uxoricide committed by defendant, which demonstrated intent, motive, identity and modus opercmdi.

It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1); State v. Williams, 96-1023, p. 30 (La.1/21/98), 708 So.2d 703, 725; State v. Prieur, 277 So.2d 126, 128 (La.1973). Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” Prieur, 277 So.2d at 128. However, the State may introduce evidence of other crimes, wrongs or acts 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 State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Prieur, 277 So.2d at 130. Even when the other crimes evidence is offered for a purpose allowed under art. 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. Martin, 377 So.2d 259, 263 (La.1979); Prieur, 277 So.2d at 130. The State also bears the burden of proving that 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).

Although a defendant’s prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997)(“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”).

There is no dispute that the State provided defendant reasonable notice and that a Prieur hearing was held. We find the State proved defendant committed the other crimes, wrongs or acts by clear and convincing evidence. Defendant was convicted of manslaughter and of the prior crimes committed against Monica Young Rose. The case against defendant for municipal domestic battery against Ms. Rose was not resolved at the time of Ms. Rose’s murder. At trial, defendant gave his version of the 114facts surrounding each of the other crimes or wrongs introduced and did not deny he was the same person involved in the incidents at issue.

In the instant case, the identity of the perpetrator was at issue and the task before the trial court in determining the relevance of the prior homicide was not “merely pigeonholing, but of classifying and then balancing.” 1 McCoRMiCK on Evidence, p. 672 (5th ed., 1999, John W. Strong, ed.). The identity of the perpetrator was a material issue at trial because defendant claimed he did not kill Ms. Rose, not that he killed her accidently or in the heat of passion. This court has allowed the use of other crimes evidence to show modus operandi or system as it bears on the question of identity when the prior crime is so distinctively similar to the one charged, especially in terms of time, place and manner of commission, that one may reasonably infer that the same person is the perpetrator in both instances. State v. Hills, 99-1750, p. 6 (La.5/16/00), 761 So.2d 516, 521; State v. Moore, 440 So.2d 134, 137 (La.1983). “[T]o assure that modus operandi evidence involving crimes or acts similar to the charged offense does not become a passkey to the introduction of the character and propensity evidence that La.C.E. art. 404(B) prohibits, this court has ‘closely analyze[d] the ... transactions in order to determine whether they ... exhibit such peculiar modes of operations to distinguish them as the work of one person.’ ” Hills, 99-1750 at pp. 6-7, 761 at 521 (quoting State v. Gaines, 340 So.2d 1294, 1297 (La.1976)). The assessment of this standard is fundamentally a balancing process. Moore, 440 So.2d at 137. As we explained in Moore, “[t]he greater the degree of similarity of the offenses, the more the evidence enhances the probability that the same person was the perpetrator, and hence the greater the evidence’s probative value, which is to be ultimately weighed against its prejudicial effect.” Id. at 137-38.

|1sAs explained above, evidence of other crimes, wrongs or acts may also be introduced to establish proof of motive. For evidence of motive to be independently relevant, it must be factually peculiar to the victim and the charged crime. State v. Lafleur, 398 So.2d 1074, 1080 (La.1981). Additionally, in a case in which the State sought to elicit testimony as to defendant’s motive, this court observed, “Clearly, evidence that defendant and his ex-wife, the person to whom defendant’s alleged criminal conduct was directed, had had a poor marital relationship and that defendant had a bad temper was relevant as tending to show the commission of the offense .... ” State v. Walker, 394 So.2d 1181, 1184 (La.1981). See also State v. Welch, 615 So.2d 300, 303 (La.1993)(“[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 defen-dant_The primary purpose of the evidence [of prior acts of violence or threats of violence] was not to prove Welch’s bad character but to illustrate the volatile nature of his relationship with the victim... .”).

In the instant case, we find the evidence that defendant physically abused Ms. Rose is independently relevant to show the volatile nature of the relationship between defendant and Ms. Rose. This evidence tends to show defendant’s motive for commission of Ms. Rose’s murder. The State was attempting to prove that defendant was the perpetrator of Ms. Rose’s violent death. The State’s case was largely dependent on circumstantial evidence, so any evidence tending to prove that defendant had a motive or reason for committing the murder was extremely probative. See Lafleur, 398 So.2d at 1081. Defendant’s documented physical abuse of Ms. Rose illustrates a motive factually peculiar to her murder.

In the present case, the following evidence clearly supports the State’s | t (¡contention that the defendant was the perpetrator of his Ms. Rose’s murder: (1) both victims were married to the defendant at the time of their deaths; (2) both victims had a stormy marriage resulting in periods of living separate and apart from defendant; (3) both victims had been the recipient of violence inflicted by the defendant before their deaths; (4) both homicides involved close physical contact of a brutal nature; (5) both homicides were committed in defendant’s home; (6) after the homicides of both victims, the defendant contacted or attempted to contact his mother and fled the state in an automobile; (7) each homicide and incident at issue ended in defendant turning himself in to the authorities. The similar nature of these crimes clearly demonstrates an identifiable, concrete, relevant pattern of behavior of the defendant that is so distinctively similar that one may logically infer that the same person committed both crimes. We therefore disagree with the court of appeal’s determination that the other crimes evidence and Ms. Rose’s murder are not substantially similar enough to allow their introduction.

While we recognize there are clearly differences among the crimes or acts at issue, we find that, taken as a whole, the similarities are sufficiently probative as to defendant’s identity as Ms. Rose’s murderer. Additionally, we acknowledge that the two homicides occurred some 12 years apart; however, much of that time span included the period of time defendant was incarcerated for the manslaughter of Monica Rose. In both instances, defendant’s wives were killed soon after they were married to defendant after circumstances revealed increasing violence in their relationships with defendant. We agree with Judge Cannizzaro’s observation in his dissent to the court of appeal’s judgment that despite some clear dissimilarities in the details of the homicide and violence inflicted upon Ms. Rose and the homicide and violence involving the defendant’s prior wife, the crimes “clearly express the vicious, |17deviant attitude that [defendant] holds toward women with whom he has a romantic relationship. This attitude is so similarly reflected in each of the crimes that [defendant] has committed that crimes are inextricably connected in the pattern ... they exhibit.” Hose, 05-0896 at p. 4, 925 So.2d at 49 (Cannizarro, J., dissenting).

Thus, the evidence of the prior crimes was relevant not because it revealed defendant’s general criminal propensities or his propensity for violence as it specifically related to women (both uses prohibited by La.C.E. art. 404(B)), but because when considered together, the crimes revealed sufficient similarities arising from a fixed and aberrant pattern of behavior that tended to identify defendant as the perpetrator in the death of his second wife. The other crimes evidence was extremely probative, especially considering the circumstantial nature of the case against defendant. The prior crimes evidence tended to corroborate the remaining evidence introduced at trial. For example, the jurors heard from Mr. James that Ms. Rose and defendant were arguing on the morning of her death over a traffic ticket. They also heard from Mr. Wilson that he and defendant had engaged in a heated telephone conversation on the morning of her death in which defendant accused Mr. Wilson of having an affair with Ms. Rose. The other crimes evidence showed defendant had previously grabbed and struck Ms. Rose- during another argument when defendant accused her of not looking at him when he spoke to her. The other crimes evidence also showed defendant acted violently toward another woman with whom he had a close personal relationship, and eventually killed her during an argument. Thus, rational jurors could have found the similarities sufficiently probative to identify defendant as Ms. Rose’s murderer because a specific pattern of violent and obsessive behavior earmarked the crimes as the work of one man and thereby “sustain[ed] the willingness of jurors to draw the inferences, whatever they may be, necessary to reach |isan honest verdict.” Old Chief, 519 U.S. at 187, 117 S.Ct. at 653.

When the probative value of the other crimes evidence is balanced against its prejudicial effect, we find the evidence was properly admitted because it was not unduly or unfairly prejudicial. While the evidence that defendant had killed his first wife after acting violently towards her and that he had physically abused Ms. Rose was clearly prejudicial in his trial for the murder of Ms. Rose, it was highly probative to show defendant’s identity, pattern, system and motive. We do not believe the prejudicial effect of the other crimes evidence rises to the level of undue or unfair prejudice when it is balanced against its probative value. Defendant’s arguments to the contrary are without merit. Consequently, the trial court correctly admitted the other crimes evidence at issue.

Decree

For the above reasons, we conclude the trial court did not err in admitting the other crimes evidence at issue. The court of appeal’s judgment that the crimes were too dissimilar to be properly introduced under La. C.E. art. 404(B) and Prieur is in error. Accordingly, the judgment of the court of appeal is reversed and defendant’s conviction and sentence are reinstated. The matter is remanded to the court of appeal for it to consider defendant’s remaining assignment of error that was pre-termitted on appeal.

Reversed and Remanded.

      . This testimony is inconsistent with that of her brother's testimony which indicated that he and his mother had left the house and arrived at Oakwood Mall at approximately 9:30 a.m. The jury heard the testimony of both Ms. James and Mr. James.

      . At the Prieur hearing, it was revealed that defendant was arrested in conjunction with this incident when he turned himself in to the authorities.

      . La. C.E. art. 1104 states:
      The burden of proof in a pretrial hearing held in accordance with State v. Prieur, 277 So.2d 126 (La. 1973), shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.
      This court has not yet addressed the extent to which Article 1104 and the burden of proof required by the federal rules, as interpreted in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), has affected the burden of proof required for the admissibility of other crimes evidence. State v. Jacobs, 99-0991, p. 26 n. 15 (La.5/15/01), 803 So.2d 933, 952 n. 15; State v. Cotton, 00-0850, p. 11 n. 3 (La. 1/29/01), 778 So.2d 569, 578 n. 3. In the instant case, we need not reach the issue of the applicable burden of proof because we find that the State satisfied its burden under either the clear and convincing evidence standard or the preponderance of the evidence standard.

      . See footnote 2.


source: Caselaw Access Project

author: TRAYLOR, Justice. CALOGERO, Chief Justice,

license: Public Domain

text:
    Howard P. ELLIOTT, Jr. v. CONTINENTAL CASUALTY COMPANY.
    No. 2006-CC-1505.
    Supreme Court of Louisiana.
    Feb. 22, 2007.
    Allen & Gouch, Scott Fry Davis, David Scranton Daly, Metairie, for Applicant.
    Howard Payne Elliott, Jr., Baton Rouge, for Respondent.
   TRAYLOR, Justice.

liWe granted certiorari in this case in order to determine whether the trial court erred in denying Defendant’s motion for summary judgment. Defendant, a legal malpractice insurer, issued a lawyers’ professional liability policy to Plaintiff. During the time that this policy was in effect, Plaintiff was involved in several fee disputes with another attorney. As a result of the fee disputes between Plaintiff and this other attorney, the attorney filed a “Petition for Declaratory Judgment, Legal Fees Due, and Injunction” against Plaintiff, and in his amended petition, the attorney alleged that Plaintiff referred a client to him without informing him that the client’s cause of action had prescribed. Further, the attorney suggested that Plaintiff was the one who had allowed the client’s cause of action to prescribe. Thus, the attorney claimed that he was induced to enter into an attorney-client contract with a client having a prescribed cause of action, and as such, the attorney argued that he suffered certain monetary damages. Because the attorney alluded to Plaintiffs possible malpractice (ie., allowing the client’s cause of action to prescribe), Plaintiff asserted that Defendant had a duty to defend him in this underlying litigation. Defendant, ^however, argued that the professional liability policy did not cover any litigation couched in terms of a fee dispute. For the reasons that follow, we reverse the trial court’s denial of summary judgment and grant summary judgment in favor of Defendant.

FACTS AND PROCEDURAL HISTORY

Madro Bandaries and Howard P. Elliott, Jr. are both practicing attorneys in the State of Louisiana, and in the past, they have worked on various cases together. After working together on several cases, fee disputes arose between the parties, and ultimately, Mr. Elliott filed a lawsuit against Mr. Bandaries, seeking to obtain those fees he believed he was due. As a result of the litigation initiated by Mr. Elliott, Madro Bandaries, APLC (“Bandar-ies”) filed a “Petition for Declaratory Judgment, Legal Fees Due, and Injunction” against the instant Plaintiff Howard P. Elliott, Jr. (“Elliott”) on January 28, 2004, as Bandaries asserted that Elliott was fraudulently attempting to obtain said legal fees. On June 22, 2004, Bandaries filed an amended petition. Within the amended petition, the following paragraph was included:

Defendant, Howard P. Elliott, Jr., pursuant to discovery requests by plaintiff, produced a copy of a contract with “Gary L. Ring,” said agreement being dated May 29, 2000. This was the same “Gary Ring” mentioned in Paragraph 9 of plaintiffs original pleadings, and whom Howard P. Elliott, Jr. referred to Madro Bandaries, APLC on or about September 15, 2000, with plaintiff contracting with Ring on November 14, 2000. At no time did Howard P. Elliott, Jr. inform plaintiff, or his associates that he had allowed Ring’s cause of action to prescribe while he represented Ring. Ring’s cause of action, a citation for carrying an oversized load, took place on March 9, 2000, with the citation providing that Ring, to preserve his rights, had to file suit with in [sic] “90 days” of this date or on or about June 9, 2000. Plaintiff would not have accepted this case if he had known that Howard P. Elliott, Jr. had allowed the matter to prescribe. To date, plaintiff has incurred costs/advances in the amount of $15,745.00 and work in the amount of $18,090.80 with little or no chance of recovering same in that the matter has been before the Louisiana Supreme Court on two occasions on the | .¡basis that Ring’s claim has prescribed, thus plaintiff asks the Court to order that Howard P. Elliott, Jr. reimburse plaintiff for these amounts.

At the time the litigation between Ban-daries and Elliott began, Elliott had a “Lawyers Professional Liability Policy” in effect with the instant Defendant Continental Casualty Company (“Continental”), which policy was effective from October 16, 2003, through October 14, 2004. Pursuant to the mandates of the insurance policy — a “claims made and reported policy” — Elliott forwarded Bandaries’ claim to Continental, in addition to submitting a request that Continental defend him in the action. However, Continental declined to provide a legal defense in the action, as Continental maintained that this policy did not provide coverage in fee dispute matters. Thus, on September 23, 2004, Elliott initiated the action that is currently before this Court.

In his petition against Continental, Elliott argued that the allegations contained within Bandaries’ petition and amended petition (including those allegations of legal malpractice) pertain to Elliott’s actions/inactions while acting in his professional capacity as a lawyer. As such, Elliott maintained that his professional liability insurer had a duty to defend him against such claims. In response to Elliott’s petition, Continental filed a motion for summary judgment on July 5, 2005. Continental argued that the litigation between Bandaries and Elliott involved a fee dispute, and as such, Continental contended that such litigation fell outside of the coverage provided by the professional liability policy.

On November 21, 2005, the trial court denied Continental’s motion for summary judgment, and in its written reasons for said judgment, the trial court found:

After reviewing the record and the arguments of the parties, the Court finds that there are questions of fact which preclude the granting of the |4motion. Clearly there is a question as to whether or not the language of the policy itself would allow for [Continental] to defend the plaintiff in a suit where the plaintiff has the potential [to] incur certain costs that his former business associate incurred as a result of the plaintiffs negligence in allowing one of their client’s claims to prescribe. The language in the policy defines legal services as services performed by the insured for others as a lawyer. The policy further provides that the company shall have the right and duty to defend in the insured’s name and on the insured’s behalf if any of the allegations of the claim are groundless, false, or fraudulent. The policy excludes coverage for any claim arising out of any dishonest, fraudulent, criminal or malicious act or omission by an insured. However, the policy goes on to state that [Continental] shall provide an insured with a defense of such a claim unless or until the dishonest, fraudulent, criminal or malicious act or omission has been determined by any trial verdict, court ruling, regulatory ruling or legal admission. The “omission” perpetrated by Elliott, allowing the Ring case to prescribe, falls within the purview of omissions as stated in the policy thereby triggering [Continental’s] duty to defend.

Continental filed a writ application with the First Circuit Court of Appeal; however, on May 16, 2006, the First Circuit Court of Appeal, in a 2-to-l decision, denied Continental’s writ application. Thereafter, Continental sought review from this Court, and we granted its writ application on October 6, 2006.

LAW AND DISCUSSION

A. Continental’s Duty To Defend

Continental avers that the trial court erred in refusing to grant its motion for summary judgment, as Continental argues that the insurance policy in question clearly does not provide coverage to Elliott under the instant circumstances. Furthermore, Continental asserts that its duty to defend Elliott in the underlying litigation was never “triggered,” as was suggested by the trial court. With respect to an insurer’s duty to defend its insured(s), it is well-settled that an insurer’s duty to defend is much broader in scope than the insurer’s duty to provide coverage. Even the language ofj^the policy issued by Continental in the instant case recognized this well-settled notion, as the contract provided that “[t]he Company shall have the right and duty to defend in the Insured’s name and on the Insured’s behalf a claim covered by this Policy even if any of the allegations of the claim are groundless, false or fraudulent.” In Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94); 643 So.2d 1213, this Court stated:

The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987); American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Leon Lowe & Sons, Inc. v. Great American Surplus Lines Ins. Co., 572 So.2d 206 (La.App. 1st Cir.1990); Benoit v. Fuselier, 195 So.2d 679 (La. App. 3d Cir.1967). Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Czarniecki, supra 230 So.2d at 259. Thus, if, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Id. An insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Meloy, supra.

Thus, we must look at Bandaries’ pleadings against Elliott in order to ascertain whether Continental had a duty to defend.

It appears that one particular paragraph in Bandaries’ amended pleading has set off the instant litigation. That paragraph, which we referenced earlier in this opinion, says, in pertinent part:

At no time did Howard P. Elliott, Jr. inform plaintiff, or his associates that he had allowed Ring’s cause of action to prescribe while he represented Ring. Ring’s cause of action, a citation for carrying an oversized load, took place on March 9, 2000, with the citation providing |fithat Ring, to preserve his rights, had to file suit with in [sic] “90 days” of this date or on or about June 9, 2000. Plaintiff would not have accepted this case if he had known that Howard P. Elliott, Jr. had allowed the matter to prescribe.

Elliott argues that this above-referenced allegation activated Continental’s duty to defend, as Elliott points out that he has been accused of legal malpractice. Elliott suggests that the definitions incorporated within the professional liability policy provide for coverage in cases exactly like the case at hand. Thus, we must now look at the terms of this insurance contract in order to determine whether a duty to defend is countenanced.

I. Terms of the Policy

The insurance contract, entitled “Lawyers Professional Liability Policy,” contains the following relevant terms and/or definitions, which in pertinent part provide:

Coverage: The Company agrees to pay on behalf of the Insured all sums in excess of the deductible that the Insured shall become legally obligated to pay as damages and claim expenses because of a claim that is both first made against the Insured and reported in writing to the Company during the policy period by reason of an act or omission in the performance of legal services by the Insured or by any person for whom the Insured is legally liable....
Defense: The Company shall have the right and duty to defend in the Insured’s name and on the Insured’s behalf a claim covered by this Policy even if any of the allegations of the claim are groundless, false or fraudulent. The Company shall have the right to appoint counsel and to make such investigation and defense of a claim as is deemed necessary by the Company. If a claim shall be subject to arbitration or mediation, the Company shall be entitled to exercise all of the Insured’s rights in the choice of arbitrators or mediators and in the conduct of an arbitration or mediation proceeding.
17Claim: “Claim” means a demand received by the Insured for money or services arising out of an act or omission, including personal injury, in the rendering of or failure to render legal services. A demand shall include the service of suit or the institution of an arbitration proceeding against the Insured.
Legal Services: “Legal services” mean:
1. those services performed by an Insured for others as a lawyer, arbitrator, mediator, title agent or as a notary public. Any title agency or company, on whose behalf the Insured acts as title agent or designated issuing attorney, is not an Insured under this Policy;
2. those services performed by an Insured as an administrator, conservator, receiver, executor, guardian, trustee or in any other fiduciary capacity.

Elliott maintains that the aforementioned definitions and terms support his contention that the policy covers him in the underlying litigation with Bandaries. Elliott argues that, pursuant to the terms of the insurance contract, he is an insured who has received a demand for money arising out of an alleged “act or omission ... in the rendering of or failure to render legal services,” (ie., the allegation that Elliott allowed a client’s action to prescribe). Elliott argues that Bandaries’ claim, that Bandaries “would not have accepted this case if he had known that Howard P. Elliott, Jr. had allowed the matter to prescribe,” is clearly within the sphere of “malpractice claims” for which Continental has a duty to defend under this policy.

On the other hand, Continental argues that the terms and definitions of the insurance policy are clear and unambiguous, and as such, the policy distinctly precludes coverage under the facts of the instant matter. Further, Continental contends that such a preclusion of coverage obviates Continental’s duty to defend. | ^Continental argues that Elliott was never Bandaries’ attorney; therefore, Continental maintains that Elliott did not perform “legal services” for Bandaries. Continental asserts that the underlying litigation between Bandaries and Elliott is merely a dispute over fees — as opposed to a malpractice claim — and is, therefore, not covered by the professional liability policy. Continental points out that there is not a great deal of Louisiana jurisprudence addressing the type of situation currently before this Court, and thus, Continental cites several cases from foreign jurisdictions for the general proposition that malpractice insurance does not cover fee dispute matters. However, in this case currently before us, a careful review of the pleadings propounded by Bandaries leads us to surmise that Continental’s duty to defend was never “triggered.”

2. Bandaries’ Pleadings Against Elliott

Under the instant liability policy, coverage is provided if there is “a claim that is both first made against the Insured and reported in writing to the Company during the policy period by reason of an act or omission in the performance of legal services by the Insured ....” In its written reasons for judgment, the trial court concluded that “[t]he ‘omission’ perpetrated by Elliott, allowing the Ring case to prescribe, falls within the purview of omissions as stated in the policy thereby triggering [Continental’s] duty to defend.” However, in actuality, the “omission” alleged by Bandaries in his pleadings is not the omission of providing legal services to Mr. Ring, but rather, the omission alleged is Elliott’s failure to inform Ban-daries that Mr. Ring’s case had prescribed. Bandaries is claiming that he suffered damages by not knowing |9that the case was prescribed, as opposed to claiming that he suffered damages as a result of Elliott’s alleged malpractice itself.

We recognize the well-settled notion that “[a]n insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy.” Further, the policy in question provides that “[t]he Company shall have the right and duty to defend in the Insured’s name and on the Insured’s behalf a claim covered by this Policy even if any of the allegations of the claim are groundless, false or fraudulent.” However, the pleadings in the instant matter do not reveal a possibility of liability under this policy, as there is not a claim that would be covered by this policy. As we have already determined, the pleadings against Elliott contain an allegation suggesting that Elliott fraudulently induced Bandaries to enter into an attorney-client agreement with Mr. Ring. In this case, the nature of the “fraudulent inducement” was that of failing to provide crucial information — an omission of information — about the status of client’s cause of action. Because this policy states that a “claim” is one that arises “out of an act or omission ... in the rendering of or failure to render legal services,” we find that Continental did not have a duty to defend Elliott in the underlying litigation.

B. Denial of Continental’s Motion for Summary Judgment

As we previously discussed, the trial court, in its written reasons for judgment, | ^concluded:

After reviewing the record and the arguments of the parties, the Court fínds that there are questions of fact which preclude the granting of the motion. Clearly there is a question as to whether or not the language of the policy itself would allow for [Continental] to defend the plaintiff in a suit where the plaintiff has the potential [to] incur certain costs that his former business associate incurred as a result of the plaintiffs negligence in allowing one of their Ghent’s claims to prescribe.

Continental avers that the trial court erred in denying its motion for summary judgment, as Continental contends that there are no “questions of fact” regarding the language of the policy such that summary judgment would be an inappropriate “vehicle” for resolving the issue of policy coverage. Further, Continental maintains that the insurance policy in question is very clear with regard to what actions are covered by said policy.

In Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, this Court discussed the general nature of insurance contracts, as well as the applicability of summary judgments when resolving matters of insurance coverage. We found:

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. The burden is on the mover to establish that no material fact issues exist. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.
|nAn insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The parties’ intent, as reflected by the words of the policy, determine the extent of coverage. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured.
The purpose of liability insurance is to afford the insured protection from damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer, and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied.
It is equally well settled, however, that subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. As this court stated in Commercial Union Insurance Co. v. Advance Coating Co., 351 So.2d 1183, 1185 (La.1977), quoting Muse v. Metropolitan Life Insurance Co., 193 La. 605, 192 So. 72 (1939):
The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties....

Thus, for summary judgment to be warranted in the case at hand, we must conclude that there is “no reasonable interpretation of the policy, when applied to the | ^undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.”

We are able to utilize our previous analysis of Continental’s “duty to defend,” in our efforts to determine whether a reasonable interpretation of this policy would support a finding of coverage. As we stated earlier, Bandaries’ pleadings include an allegation that information was withheld by Elliott (i.e., the knowledge that Mr. Ring’s case had prescribed), which, in turn, induced Bandaries to enter into an attorney-client contract with Mr. Ring. Bandar-ies further alleged that Elliott allowed Mr. Ring’s cause of action to prescribe. However, the inclusion of this allegation of malpractice does not, in and of itself, trigger Continental’s duty to defend, nor does it suggest that coverage would be warranted.

First, this policy defines “legal services” as “those services performed by an Insured for others as a lawyer, arbitrator, mediator, title agent or as a notary public.” The record before this Court does not intimate that Elliott ever performed “legal services” for Bandaries. Second, the policy defines a “claim” as “a demand ... arising out of an act or omission ... in the rendering of or failure to render legal services.” Elliott did not fail to render legal services for Bandaries, but rather, Bandaries alleged that Elliott failed to render legal services for Mr. Ring. Bandaries’ assertion, that Elliott “malpracticed” by allowing Mr. Ring’s cause of action to prescribe, is merely descriptive of. the type of information that Elliott allegedly withheld from Bandaries. We do not find that a “claim,” as defined by this policy, exists. Third, by the terms of its policy, Continental was required to defend those | claims — even fraudulent claims — covered by the policy. Because we do not find that a “claim” exists, there is no duty to defend. Lastly, the policy guaranteed coverage for those claims Elliott became “legally obligated to pay ... because of a claim that is both first made against the Insured and reported in writing to the Company during the policy period by reason of an act or omission in the performance of legal services.” In accordance with the terms of this insurance contract, there is no “omission of legal services,” nor is there a “claim,” and thus, Continental would not be required to provide coverage to Elliott under these circumstances. Accordingly, we cannot find a reasonable interpretation of this policy that would support a finding of coverage, and the trial court erred in failing to grant Continental’s motion for summary judgment.

CONCLUSION

The allegations contained within the pleadings filed against Elliott did not “trigger” Continental’s duty to defend. Bandaries’ claim that Elliott committed malpractice against a third person does not fall within the scope of protection provided by this insurance contract. Further, we cannot find any “questions of fact” regarding the terms of this policy which would preclude the granting of summary judgment in favor of Continental, as the policy’s definitions/terms pertaining to coverage are clear and unambiguous. Accordingly, for the foregoing reasons, the trial court’s denial of summary judgment is reversed and summary judgment is hereby granted in favor of Continental.

REVERSED.

CALOGERO, C.J., dissents and assigns reasons.

JOHNSON, J., concurs.

WEIMER, J., concurs in the result.

CALOGERO, Chief Justice,

dissenting.

hi respectfully dissent from the majority’s holding that summary judgment was appropriate in this case where the insurer, Continental Casualty Company, claims it does not have a duty to defend its insured, Howard Elliot, on the allegations of legal malpractice asserted in the pleadings filed by Madro Bandaries. As the majority notes, for summary judgment in its favor the defendant insurer must establish that there is no reasonable interpretation of the policy under which coverage could be afforded, when applied to the undisputed material facts shown by the evidence supporting the motion. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. In my view, the policy could reasonably be interpreted to cover the act or omission by Mr. Elliot as alleged by Mr. Bandaries, i.e., allowing the Ring case to prescribe thereby causing Mr. Bandaries monetary damages. The policy does not limit the act or omission to legal services to any particular person and the duty to defend exists even if the allegations are eventually proven to be groundless, false, or fraudulent. Accordingly, I disagree with the majority’s conclusion on this showing that summary judgment finding there is no duty to defend was supported by the policy language and the facts as established by the evidence supporting the motion for summary judgment.

      . While the attorneys agreed to work on several cases together, they have never been affiliated as legal partners, nor have they worked together at the same law firm.

      . R. at 45 (citations omitted).

      . R. at 70.

      . Def.'s Br., Appendix "I” (alteration in original).

      . See Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05); 907 So.2d 37, 51-52.

      . R. at 71 (alteration in original) (emphasis added).

      . Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94); 643 So.2d 1213, 1218 (emphasis added).

      . R. at 45 (emphasis added).

      . R. at 70.

      . R. at 71.

      . R. at 74.

      .R. at 76.

      . R. at 74.

      . R. at 45 (emphasis added).

      . R. at 70 (emphasis added).

      . Def.’s Br., Appendix "I” (alteration in original).

      . "At no time did Howard P. Elliott, Jr. inform plaintiff, or his associates that he had allowed Ring’s cause of action to prescribe while he represented Ring.... Plaintiff would not have accepted this case if he had known that Howard P. Elliott, Jr. had allowed the matter to prescribe." R. at 45.

      . Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94); 643 So.2d 1213, 1218 (alteration in original) (emphasis added).

      . R. at 71 (emphasis added).

      .See La. Civ.Code art. 1953, which provides: Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

      . R. at 74 (emphasis added).

      . Def.’s Br., Appendix "I” (alteration in original) (emphasis added).

      . Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, 1182-83 (citations omitted) (footnotes omitted) (emphasis added).

      . Id. at 1183.

      . R. at 76.

      . R. at 74.

      . R. at 70.

      .This Court notes that Continental is defending Elliott in a malpractice suit brought by Mr. Ring.


author: VICTORY, J.

text:
    Goldie JACK v. ALBERTO-CULVER USA, INC.
    No. 06-C-1883.
    Supreme Court of Louisiana.
    Feb. 22, 2007.
    Allen & Gooch, Michael Edward Parker, Lafayette, for Applicant.
    Anthony Craig Dupre, Ville Platte, for Respondent.
   VICTORY, J.

| (We granted this writ application to determine whether the lower courts were manifestly erroneous in finding that the plaintiff met her burden of proof under the Louisiana Product’s Liability Act (the “LPLA”). After reviewing the record and the applicable law, we reverse the judgments of the lower courts which awarded damages in favor of the plaintiff.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Goldie Jack, purchased a package of Soft & Beautiful Botanicals Textur-izer, manufactured and produced by defendant, Alberto-Culver USA, Inc. Plaintiffs niece, Shamanda Jack, who claimed to have a great deal of experience in applying similar hair care products, applied the product to plaintiffs head. Several days later, plaintiff noticed a sore on her scalp and hair loss. She was diagnosed and treated in the emergency room of the Yille Platte Medical Center for a staph infection. She was subsequently treated for two months by her physician.

Plaintiff filed suit against Alberto-Cul-ver claiming she suffered damages as a result of the hair care product. She claimed that the product was unreasonably dangerous due to an inadequate warning, specifically that the warning should have instructed the user to perform a scalp test prior to use. At trial, plaintiff presented the testimony of Shamanda Jack, who testified that she read the instructions “but I do that 12all the time so it’s like a process so you keep.” She testified that prior to use, she did a “strand test” in which she applied the product to a strand of plaintiff’s hair. She then checked to make sure the plaintiff did not have any sores on her head. She applied the texturizer and kept it on for 8-10 minutes, which was in accordance with the instructions, washed it out twice, shampooed it twice, then conditioned it and “wrapped it.” Plaintiff testified that during the procedure, she informed Sha-manda that she felt a burning sensation, although Shamanda said she did not complain until a couple of days later. Plaintiff testified that ten days later, she went to the emergency room for treatment.

Plaintiff also presented the “Instructions Usage Guide” that accompanied the product, which provided as follows:

WARNING: READ BEFORE USING
Follow instructions carefully to avoid skin and scalp burns, hair loss and eye injury. Do not use on bleached or permanently colored hair which is breaking, splitting or otherwise damaged. Product may cause skin or scalp irritation. If texturizer creme causes skin or scalp irritation, rinse out immediately and wash with shampoo inside kit.
This product is toxic. This product contains Sodium Hydroxide. KEEP THIS PRODUCT AND ALL OTHERS AWAY FROM EYES AND MOUTH. Product may be harmful, if accidentally gets in eyes or mouth. If product gets in eyes, wash eyes thoroughly with water. If product is swallowed, consult a physician immediately. Misuse of this product could cause hair loss or damage. KEEP OUT OF REACH OF CHILDREN.
DO’S AND DON’TS:
Do discard excess product after use.
Do keep out of reach of children.
Do check scalp carefully for cuts or abrasions. If cuts or abrasions are present, don’t use texturizer creme until scalp condition clears up.
Don’t scratch or irritate scalp prior to texturizing your hair.
| ¡¡Don’t use texturizer creme immediately after coloring your hair. Wait at least 2 weeks before texturizing.
Don’t apply texturizer creme to hair permed with ammonium thioglycolate (curly perm).
Don’t shampoo your hair before applying texturizer creme.

The plaintiff also presented her medical records which indicated that her condition was a “scalp abscess” which required draining caused by a staph infection, and that she incurred $2,080.38 in medical expenses related to the treatment of the infection.

After the hearing, the trial judge found in favor of the plaintiff. In his “Reasons for Judgment,” he indicated that the warnings accompanying the product were inadequate, because they failed to warn the user to test the product prior to use. In reaching this decision, he stated:

Guidance in this case is found in Thomas v. Clairol, 583 So.2d 108 (La. App. 3 Cir.1991), wherein the court was faced with another issue of adequate warning in a hair product case. In Thomas, it was noted that the information accompanying the product included a caution that the product may cause skin irritations, as is the case in the present matter. The Thomas product, however, went further and warned that a “preliminary allergy test” should be conducted before applying the dye. The directions for the allergy test were “set forth at the beginning of the instruction” and a toll free number was provided for questions. The “allergy test section stood out well on the instruction sheet” in the Thomas case. As a result, it was held that these warnings were adequate.
In the present case, no such warnings existed other than the caution of the possibility of skin or scalp irritation, thus distinguishing the present case from Thomas. It is the finding of the court that the warnings accompanying the product in question were inadequate and that plaintiffs damages were caused by defendant’s product.

The court of appeal affirmed in an unpublished opinion. Jack v. Alberto-Culver USA, Inc., 06-0238 (La.App. 3 Cir. 6/28/06), 933 So.2d 259. We granted defendant’s writ application. Jack v. Alberto-Culver USA Inc., 06-1883 (La.11/03/06), 940 So.2d 648.

^DISCUSSION

To maintain a successful products liability action under the LPLA, a plaintiff must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant’s damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product “unreasonably dangerous;” and (4) that the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else. La. R.S. 9:2800.54(A). A product is “unreasonably dangerous” under the LPLA if and only if the product meets at least one of the following criteria: (1) the product is unreasonably dangerous in construction or composition as provided in La. R.S. 9:2800.55; (2) the product is unreasonably dangerous in design as provided in La. R.S. 9:2800.56; (3) the product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in La. R.S. 9:2800.57; or (4) the product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in La. R.S. 9:2800.58. La. R.S. 9:2800.54(13). “The claimant has the burden of proving the elements of Subsections A, B, and C of this Section [9:2800.54].” La. R.S. 9:2800.54(D).

In a failure to warn case, the claimant bears the burden of establishing that “at the time the product left the manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and |fihandlers of the product.” La. R.S. 9:2800.57. The LPLA defines “adequate warning” as:

a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the danger for which the claim is made.

La. R.S. 9:2800.53(9).

In this case, the plaintiff claims that the product was unreasonably dangerous because it contained an inadequate warning. Specifically, the plaintiff claims that the warning should have contained an instruction that the user perform a “scalp test” before applying the product. The factual evidence presented by plaintiff was as follows: (1) the warning accompanying the product, which proved that the product “possessed a characteristic that may cause damage;” (2) testimony that she used the product; and, (3) medical evidence that she subsequently developed a staph infection. However, in a failure to warn case, the burden is on the plaintiff to also prove that “the manufacturer failed to use reasonable care to provide an adequate warning of such [dangerous] characteristic to users and handlers of the product.” La. R.S. 9:2800.57.

Whether a particular warning or instruction is adequate is a question for the trier of fact. Bloxom v. Bloxom, 512 So.2d 839, 844 (La.1987). In this case, | (¡plaintiff presented no evidence, in the form of expert testimony or otherwise, that the product was unreasonably dangerous because Alberto-Culver should have instructed the user to perform a scalp test. The trial court erred in simply relying on the facts presented in Thomas v. Clairol, supra, where such instructions were given, to find that Alberto-Culver should have also given an instruction, for the facts presented in that case provided no evidentiary factual basis to support the trial court’s finding in this case. Because plaintiff presented no factual evidence to satisfy her burden of proof, the trial court’s judgment in her favor was manifestly erroneous.

DECREE

For the reasons stated herein, the judgments of the trial court and the court of appeal are reversed and the case is dismissed.

REVERSED.

JOHNSON, J., dissents.

      . La. R.S. 9:2800.54(C) provides:
      The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product.

      . As commentators have noted, the "warning” under the LPLA must both alert and instruct in that "the warning must both lead the ordinary user or handler to contemplate the danger in using the product (the warning component) and to either use it safely (the instruction component) or decline to use it.” Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law, 2004 Edition, § 15.11, p. 15-31.

      . Because La. R.S. 9:2800.57 clearly provides that the warning is to be provided to "users and handlers” of the product, we reject defendant's argument that the plaintiff herself must have read the instructions in order to recover.

      . We do not imply the adoption of a per se rule that expert testimony is always necessary. Rather, we simply point out that no evidence was introduced to satisfy plaintiffs burden of proof.

      .For instance, there is nothing in the record which tells us if the chemicals used in the Thomas case were the same as those used in this case. In addition, the Thomas opinion stated that the Clairol warning included a "preliminary allergy test,” and that the directions for the test were "set forth at the beginning of the instruction.” However, nothing in the Thomas opinion indicated what the instructions for this test were, what the test entailed, or whether the "preliminary allergy test” in that case was the same as the "scalp test” that plaintiff argued was necessary in this case.
      Further, although they did not include an instruction to perform a "scalp test,” the 18 warnings and instructions given by Alberto-Culver in this case clearly satisfy the requirements of La. R.S. 9:2800.53(9).


author: EZELL, JUDGE.

text:
    STATE of Louisiana v. Donavan DESPANIE.
    No. KA 2006-1269.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    William Thomas Babin, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Michael Harson, District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.

      Mark Owen Foster, Foster & Foster, Minden, LA, for Defendant/Appellant, Do-navan Despanie.
    Donavan Despanie, Kinder, LA.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

hOn December 14, 2004, the Defendant, Donavon Despanie, was indicted with aggravated rape, a violation of La.R.S. 14:42. On September 20, 2005, the Defendant entered a plea of no contest to the amended charge of simple rape, a violation of La. R.S. 14:43.

The Defendant was sentenced on March 7, 2006, to serve twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence with credit for time served. The trial court also recommended that the Defendant be placed in a facility to receive sex offender treatment. On March 13, 2006, the Defendant filed a motion to reconsider sentence, which was subsequently denied without a hearing on March 16, 2006. The Defendant is now before this court on appeal asserting that the trial court imposed an excessive sentence.

FACTS

We note that in the guilty plea hearing no factual basis for the offense to which the Defendant pled was articulated. Therefore, the following factual assertions are taken from the police report provided to the Defendant by the State in its answer to Defendant’s request and motion for discovery, disclosure, and inspection and for a bill of particulars. On October 15, 2004, the Defendant, a certified nursing assistant employed at the Evangeline Oaks of Carenero, a long-term care facility, was observed by a fellow employee having sex with a ninety-two year-old female resident suffering from dementia. The police were called and following an investigation, the Defendant was later arrested at his residence.

ASSIGNMENT OF ERROR

In this assignment of error, the Defendant argues that the sentence imposed by the trial court was cruel, unusual, and excessive. More specifically, the Defendant ^asserts that maximum sentences are reserved for the most serious violation of the offense and the worst type of offender. Further, the Defendant maintains that the record and evidence presented does not support a conclusion of same-he has no prior criminal history, no history of sexual abuse, and no evidence of aggravating factors in the crime.

In his motion to reconsider sentence, the Defendant stated that “[ejxpert evidence was offered on defendant’s mental condition and the court clearly disregarded the evidence.” In his brief to this court, the Defendant complains that the only reasons provided by the trial court for giving the maximum sentence was the age and vulnerability of the victim and contends that the record contains little review by the trial court of the mitigating factors listed in La.Code Crim.P. art. 894.1.

The Defendant pled no contest to simple rape, a violation of La.R.S. 14:43, which reads in pertinent part, “B. Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years.” Thus, the Defendant’s sentence of twenty-five years was the maximum sentence allowed.

At sentencing, the trial court stated:

THE COURT: Well, let me preface this with a couple of comments about the nature of this offense and this hearing.
I certainly understand the victim’s family’s feelings in this case. And I agree with Mr. Babin that to take advantage of an elderly person with dementia is equal or worse than taking advantage of a small child.
I feel tremendous sympathy for them, and I feel tremendous sympathy for Donovan’s mother. However, Mr. Register, I do not accept your statement that Donavon is a victim in this case. It is far too easy for people to blame their actions on something that they contend someone else did to them.
And I have observed Mr. Despanie at the time I took his plea, and I’ve observed Mr. Despanie today. And I do not find Mr. Despanie to | sbe a victim. I find Mr. Despanie to be manipulative.
I agree very much with some of the comments that Dr. Yosberg made about the personality problems that Mr. Des-panie has, but those personality problems do not excuse behavior.
And I disagree with Dr. Vosberg’s statements that Mr. Despanie is not a predator. Because you can be a predator in many ways. And someone who takes advantage of innocence and someone who takes advantage of people that have no faculties is a predator.
So let me just say that, in light of Dr. Vosberg’s report, the testimony I’ve heard today, the presentence report, the letters that I’ve considered, I have, as Mr. Babin pointed out, followed my duties to examine all of these in light of Article 894.1.
And, for the record, I am going to make the following findings regarding sentence in this case: Number one, Mr. Despanie, I find that you knew the victim in this case was particularly vulnerable or incapable of resisting due to her advanced age, disability and health.
I find that you used your position or status as a caretaker of the victim to facilitate the commission of this offense. And, until today, I was not aware that this was not the first time that you had committed the offense — but, based on your own admissions, multiple offenses.
The offense that you are convicted of, which is simple rape, provides for a sentence without benefit of parole, probation, or suspension of sentence.
You have refused to accept responsibility for your crime. And I heard what you said today, and that is not an acceptance of responsibility for your crime.
The mental health evaluation submitted by your attorney does not indicate that you have substantial mental illness which would justify or excuse your conduct.
And, although you have no other criminal history, this is a serious sexual offense against a particularly vulnerable victim. And the mental health evaluation submitted by your attorney indicates — and that doctor has indicated your need for extensive sexual offender treatment.
And I also find that a lesser sentence would deprecate the seriousness of the crime that you committed.
And let me say that I have not had many circumstances where I felt that a maximum was required, but, in this case, I think it is completely required. After hearing the factual basis for this offense, you know, I understand the plea was to one of simple rape. I think the crime |4you committed goes beyond the definition even of simple rape. It is a serious, serious sexual offense against a very vulnerable victim in this case.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784, p. 2 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

|RAt sentencing, the Defendant testified that he was not a predator or a devious fiend prowling on the innocent and the weak. Later, he denied having sex with the Victim. Further, the Defendant admitted that he previously stated that the Victim asked him for sex, that he used just his fingers and did so on two separate occasions. The Defendant also recalled his written statement for the police wherein he admitted that he was having sex with the Victim when a nurse walked in without knocking. However, he maintained that he was under the influence of alcohol at the time his statement was made and was persuaded by police officers to make the statement.

Later, the Defendant testified that he had a relationship “of consensuality” with the Victim, which he described as a normal everyday relationship. He maintained that they conversed about family, work schedule, etc., and that she was glad to see him when he arrived for the night shift. The Defendant stated that the Victim was always in a joyful mood when she would see him and would greet him with open arms. According to the Defendant, the Victim remembered him every time he came to work and even remembered his name.

When asked how a nineteen year-old man falls in love with a ninety-two year-old woman, the Defendant stated that it was the same as a sixty-five year-old man falling in love with a nineteen year-old woman — “... when you develop a friendship and a relationship with a person, I guess, as the old saying goes, age is not a — age is not a matter.” Further, the Defendant maintained that he did not rape the Victim but had a mutual relationship with the Victim that “went to a point that, as it stands, nobody can regard as normal.” The Defendant would not describe his relationship with the Victim as a “love affair,” but stated that it was a friendship that evolved into a relationship. When asked if he normally puts his fingers into his friends’ vaginas, the Defendant responded in the affirmative.

lfiMr. Alan Ryder, the co-worker/licensed practical nurse that discovered the Defendant having sex with the Victim, testified that the Victim was incontinent and wore a Wander Guard to prevent her from wandering away from the building. He added that the Victim was unable to dress herself and needed assistance to go to the bathroom. According to Mr. Ryder, the Victim was not of sound mind; thus, the Defendant’s testimony that he had a relationship with the Victim was “amazing.” Further, Mr. Ryder testified that it was common knowledge in the facility that the Victim was not competent or aware of what was going on. Lastly, Mr. Ryder stated that the Victim was unable to have a conversation with anyone other than talking about “poppa,” her deceased husband.

With regard to the offense, Mr. Ryder testified that he was alerted by another certified nurse assistant of the Defendant’s actions. Through an open blind, they could see the Defendant on top of the Victim with his underwear down around his ankles, going up and down. When Mr. Ryder opened the door, the Defendant, still with his pants and underwear down around his ankles, stopped and stood there. According to Mr. Ryder, the Defendant had an erection.

In response to Mr. Ryder’s testimony, the Defendant maintained that it was impossible for Mr. Ryder to have seen him half naked due to the location of the window and that he was not on top of the Victim. He had no idea why Mr. Ryder would lie and stated once more that he did not have sex with the Victim, only penetrating with his fingers.

First, we find that the Defendant’s assertion that the court disregarded the evidence offered concerning his alleged mental condition is without merit. The transcript clearly reflects that the trial court considered the comments in the report of Dr. Charles Vosberg regarding the Defendant’s alleged personality problems and Dr. |7Vosberg’s opinion that the Defendant is not a predator. The trial court concluded that the personality problems did not excuse his behavior. Further, in light of the facts presented, the trial court disagreed with, not disregarded, Dr. Vosberg’s statement that the Defendant is not a predator and clearly stated its reasons for concluding same.

In support of his excessive sentence claim, the Defendant cited several cases in his brief to this court. First, the Defendant refers to this court’s decision in State v. Clark, 05-647 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, wherein the court found that a fifteen-year sentence imposed for simple rape was excessive. The facts of Clark, however, are not similar to the instant case. The only aggravating factor in Clark was the allegation that the defendant attempted sexual contact with another woman on the night of the offense, but the woman declined his advances.

The Defendant also refers to this court’s decision in State v. Sergon, 449 So.2d 193 (La.App. 3 Cir.1984). In Sergon, the defendant pled guilty to the simple rape of a mental patient and received a five-year sentence. On appeal, this court held that the sentence was not excessive. Further, the court stated that under the circumstances set out, the five-year sentence was light, considering that the defendant could have gotten twenty-five years on the reduced charge. In affirming his sentence, this court noted that the defendant had, in effect, admitted that the offense was without the lawful consent of the victim and that he knew of the victim’s incapacity.

Next, the Defendant sites State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, wherein the defendant received the maximum sentence for indecent behavior of a juvenile. On appeal, this court held that maximum sentence was excessive punishment for the fifty-three-year-old first-time offender who inappropriately touched the sixteen-year-old victim. The court noted that although the victim suffered psychological harm, she was already “somewhat depressed” at the 18time of the incident and that the defendant had led a crime-free life, the offense involved no violence, and the defendant left when the victim rebuffed his advances.

Lastly, the Defendant admits that there are more reported cases affirming maximum sentences than vacating same, but contends that these cases involve particularly egregious offenses or cases in which the defendant had a crime-filled life prior to the last conviction. In light of this trend, the Defendant stresses that he is a first time offender and that he committed no force of violence against the Victim. Also, the Defendant asserts that he had an excellent home life, an education, no prior criminal convictions, and no history of pri- or sexual misconduct.

We find that the evidence/testimony at sentencing supported the trial court’s decision to impose the maximum sentence on the Defendant. The credibility of the Defendant was seriously called into question in light of Mr. Ryder’s testimony. As required by La.Code Crim.P. art. 894.1, the sentencing transcript reflects that the trial court stated the considerations taken into account and the factual basis for imposing the twenty-five-year sentence. Additionally, we note that the Defendant was originally charged with aggravated rape, and thus, received a significant benefit from his plea bargain to the lesser and included offense of simple rape. Considering same, we find that the Defendant’s sentence was not excessive.

PRO SE ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE

In these assignments of error, the Defendant argues: 1) that defense counsel rendered ineffective assistance during pretrial, Boykin and sentencing proceedings; 2) that he was induced, intimidated, and coerced by interrogation police officers to make an involuntary confession to a serious crime; and 3) DNA test results from the Louisiana Crime Laboratory were negative reflecting that the Victim suffered no sexual assault, no injury and that there was no sexual activity or contact with the 19Victim by the Defendant.

We find that the alleged errors that occurred prior to entry of the no-contest plea, including ineffective assistance of counsel during pre-trial, involuntary confession, and exculpatory DNA test results, are non-jurisdictional defects that were waived by the entry of the Defendant’s no contest plea. See State v. Myles, 04-264 (La.App. 3 Cir. 9/29/04), 882 So.2d 1254. As stated by this court in State v. Johnson 04-1266, p. 6 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950, “Generally, a defendant waives the right to question the merits of the State’s case or the underlying factual basis by entering a plea of guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, [writ denied, 04-2634 (La.2/10/05), 896 So.2d 30.]”

As to the Defendant’s claim of ineffective assistance of counsel at the Boykin and sentencing proceedings, the Defendant merely alleged these errors but failed to address them in his argument. Accordingly, we find that the Defendant abandoned his claim for ineffective assistance of counsel during the Boykin and sentencing hearings.

CONCLUSION

The Defendant’s sentence is affirmed.

AFFIRMED.