text:
    Joseph Andrus CORMIER, Sr. and Gay Ann Cormier v. COLDWELL BANKER and Team Realty, LLC.
    No. 14-360.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    J. Craig Jones, Oakdale, LA, for Plaintiffs/Appellants Joseph Andrus Cormier, Sr. and Gay Ann Cormier.
    Craig R. Hill, Oberlin, LA, for Plaintiffs/Appellants Joseph Andrus Cormier, Sr. and Gay Ann Cormier.
    Gregory Engelsman, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., Alexandria, LA, for Defendant/Appellee Team Realty, LLC.
    Timothy W. Basden, Breaud & Meyers, APLC, Lafayette, LA, for Defendant/Ap-pellee Pelican Real Estate, Inc. d/b/a Cold-well Banker Pelican Real Estate.
    Bonita PreuetL-Armour, Armour Law Firm, LLC, Alexandria, LA, for Defendants State Farm Mutual Automobile Insurance Company and WHR Group, Inc.
    William P. Wynne, Tarak Anada, Jones Walker LLP, New Orleans, LA, for Third Party Defendant/Appellee Continental Casualty Company.
    Court composed of J. DAVID PAINTER,. JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

11 Plaintiffs, Joseph Andrus Cormier, Sr. and Gay Ann Cormier, appeal the trial court’s dismissal of their claims against Defendant, Team Realty, LLC, pursuant to summary judgment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation stems from Plaintiffs’ purchase of a home located at 309 Maple Street, Elizabeth, Louisiana (the Maple Street property), on December 5, 2007. Prior to Plaintiffs’ purchase thereof, the Maple Street property belonged to Lee and Heather Doucet; however, it was being sold by WHR Group, Inc. (WHR), a relocation company, on their behalf.

On May 22, 2008, Plaintiffs filed suit against Team Realty and Coldwell Banker, alleging that- they purchased the Maple Street property because of representations made to them by both Ruth Davidson, Plaintiffs’ real estate agent employed by Coldwell Banker, and Danny James, the selling agent and Team Realty’s owner/broker. According to Plaintiffs, they were told that the Maple Street property contained 2.3 acres when, in fact, it contained only 1.6 acres. Plaintiffs’ petition alleged negligence by Danny James and Ruth Davidson for knowingly misrepresenting the “boundary lines behind the house and backyard[,]” which they relied upon and paid “$206,000.00 for the purchase of the home and |⅞2.3[ ] acres[.]” Plaintiffs are seeking damages for detrimental reliance, redhibition, diminution in value, and, in the alternative, rescission of the sale.

Team Realty answered the lawsuit on March 23, 2009, with a general denial of Plaintiffs’ allegations. Simultaneously with its answer, Team Realty filed a Third Party Demand against its general liability insurer, Continental Casualty Company.

On November 16, 2010, Team Realty filed a Motion for Summary Judgment, asserting that Plaintiffs are not entitled to recover against it under either the theory of detrimental reliance or redhibition. According to Team Realty, Danny James had no knowledge that the Maple Street property contained only 1.6 acres instead of 2.3 acres. Team Realty contends that it was hired by WHR to sell the Maple Street property and that the legal description of the property, which Danny James used to determine the amount of acreage for its advertisement of the property, was received from WHR and/or Lee and Heather Doucet. Team Realty argues that Danny James never showed Plaintiffs the Maple Street property, nor did he or anyone else from Team Realty discuss the Maple Street property with Plaintiffs. Team Realty avers that Plaintiffs were sophisticated buyers who knew they could have easily verified the property’s boundaries by obtaining a survey. Therefore, Team Realty argues that Plaintiffs cannot prove their entitlement to a judgment against it under either the theory of detrimental reliance or redhibition. In support of its Motion for Summary Judgment, Team Realty attached as exhibits: (1) Danny James’ real estate license; (2) the deposition of Danny James; (3) Team Realty’s state license; (4) the deposition of Ruth Davidson; (5) the deposition of Joseph Cormier; (6) the deposition of Gay Cormier; (7) a copy of Plaintiffs’ Ispetition; (8) a copy of the Buy/ Sell Agreement; (9) a copy of the Inspection Addendum to Sale Contract; and, (10) a copy of the Cash Sale Deed.

Plaintiffs amended their lawsuit on March 24, 2011, to add State Farm and WHR as Defendants. Plaintiffs responded to Team Realty’s Motion for Summary Judgment on April 5, 2011, offering the following exhibits in opposition thereto: (1) the deposition of Joseph Cormier; (2) the deposition of Gay Cormier; (3) the deposition of Ruth Davidson; (4) a survey of the Maple Street property dated January 23, 2009; (5) the affidavit of Joseph Cormier; (6) pictures of the Maple Street property; (7) the deposition of Danny James; (8) an appraisal of the Maple Street property dated March 5, 2009; (9) a copy of the Cash Sale Deed; (10) the affidavit of Dewey Cormier; and, (11) the affidavit of Lee Doucet. In their opposition, Plaintiffs argued that “[although [Danny] James never spoke with [Plaintiffs] about the Maple Street [property, Danny] James did provide information regarding the boundaries of 306 [sic] Maple Street to Ruth Davidson, [Plaintiffs’] agent.” According to Plaintiffs, they relied upon Danny James’ representations to Ruth Davidson to their detriment, thereby making Team Realty liable.

After a hearing on April 11, 2011, the trial court granted Team Realty’s Motion for Summary Judgment as to Plaintiffs’ claims for detrimental reliance and redhi-bition. In its oral reasons, the trial court relied heavily on Danny James’ testimony, stating:

[Danny James] placed an ad in accordance with, he said[,] the description provided by the owners, which is going to be WHR or the Doucets. In the Buy/Sell Agreement, of course, it has as per record title. And there was — the description of the title, it was — I am assuming it was attached to that Buy/ Sell Agreement, it is right next to it, I think right before it in the exhibits. It includes a plat and a location of where the plat — or the location of where the plat is in the |4records of Allen Parish, could have easily been satisfied by the buyers. The Buy/Sell says without warranty and that the buyers can satisfy themselves as to the, in this case, the lot size. So, the [c]ourt is going to gpnt the Motion for Summary Judgment.

The judgment dismissing Plaintiffs’ claims against Team Realty with prejudice was signed on May 31, 2011. Plaintiffs appeal.

ASSIGNMENT OF ERROR

Plaintiffs argue, on appeal, that the trial court “committed reversible error by failing to recognize that there exist issues of material fact as to the liability of Team Realty, LLC.”

LAW AND DISCUSSION

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363Ü p. 8 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003 — 1424[,] p. 5 (La.4/14/04), 870 So.2d 1002,1006.

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882^83 (footnote omitted).

Team Realty, as movant for summary judgment, had the burden of proof on its motion; however, because it did not bear the burden of proof at trial, it only | ¿needed “to point out to the court that there is an absence of factual support for one or more elements essential to” Plaintiffs’ claims. La.Code Civ.P. art. 966(C)(2).

The duties of a real estate broker or agent were discussed by this court in Waddles v. LaCour, 06-1245, p. 5 (La.App. 3 Cir. 2/7/07), 950 So.2d 937, 942, writ denied, 07-827 (La.6/22/07), 959 So.2d 496 (quoting Osborne v. Ladner, 96-863, p. 16 (La.App. 1 Cir. 2/14/97), 691 So.2d 1245, 1257), as follows:

A purchaser’s remedy against a real estate broker is limited to damages for fraud under LSA-C.C. art.1953 et seq. or for negligent misrepresentation under LSA-C.C. art. 2315. Duplechin v. Adams, 95-0480, p. 5 (La.App. 1st Cir. 11/9/95); 665 So.2d 80, 84, writ denied, 95-2918 (La.2/2/96); 666 So.2d 1104; Reeves v. Weber, 509 So.2d 158, 160 (La.App. 1st Cir.1987); Rodgers v. Johnson, 557 So.2d 1136, 1138 (La.App. 2nd Cir.1990). The action for negligent misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must, be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. Duplechin v. Adams, 665 So.2d at 84; Smith v. Remodeling Service, Inc., 94-589, p. 7 (La.App. 5th Cir.12/14/94); 648 So.2d 995, 999. A real estate broker or agent owes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentation. Duplechin v. Adams, 665 So.2d at 84; Smith v. Remodeling Service, Inc., 648 So.2d at 1000; Josephs v. Austin, 420 So.2d 1181, 1185 (La.App. 5th Cir.1982), writ denied, 427 So.2d 870 (La.1983). However, the duty to disclose any material defects extends only to those defects of which the broker or agent is aware. Reeves v. Weber, 509 So.2d at 160.

A review of the law relative to detrimental reliance is crucial to our determination as to whether the trial court erred in granting summary judgment. Louisiana Civil Code Article 1967 defines cause in detrimental reliance as follows:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

|fiOur supreme court explained detrimental reliance in Luther v. IOM Co. LLC, 13-353, pp. 10-11 (La.10/15/13), 130 So.3d 817, 825, as follows:

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37, 59. Estoppels are not favored in our law; therefore, a party cannot avail himself of that doctrine if he fails to prove all essential elements of the plea. See Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975).

The deposition testimony of Plaintiffs indicates that Gay Cormier found the listing for the Maple Street property on Cold-well Banker’s website. She contacted Ruth Davidson and inspected the Maple Street property. At all times, the property’s boundary lines were relayed to Plaintiffs by Ruth Davidson, who allegedly obtained her understanding thereof from Danny James. The depositions of both Plaintiffs confirm that they never had direct communication with Danny James or anyone at Team Realty regarding the Maple Street property. Also poignant are the facts that Plaintiffs were experienced in the act of buying property and that Gay Cormier had even worked for a surveyor. Additionally, both Plaintiffs acknowledged being advised that if they wanted verification as to the property’s boundaries, a property survey should be performed. Further damaging to Plaintiffs’ claims is the fact that they signed both the Buy/Sell Agreement on November 5, 2008, and Cash Sale Deed on December 5, 2008, with no warranties concerning the property’s boundaries.

Pursuant to our de novo review, we find that the record does not contain evidence of negligent misrepresentation on the part of Danny James. The trial court correctly ruled that Plaintiffs failed to produce any evidence which proves |7that the alleged discrepancy was known to Danny James or represented by him in such a manner to Plaintiffs. Without proof that Danny James knew the Maple Street property was 1.6 acres instead of 2.3 acres, a duty to disclose this fact to Plaintiffs cannot be established. Further, Plaintiffs’ assertion that they were justified in relying upon Danny James’ alleged representations is equally flawed. Plaintiffs were fully aware that the property’s boundaries could have been verified had they taken the opportunity to have the property surveyed. This they did not do. Thus, we find the trial court correctly held that Plaintiffs failed in their burden of proof and that there is no genuine issue of material fact in the record before this court. Accordingly, Team Realty’s Motion for Summary Judgment was properly granted by the trial court.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to Plaintiffs/Appellants, Joseph Andrus Cormier, Sr., and Gay Ann Cormier.

AFFIRMED.

      . Plaintiffs did not name Lee and Heather Doucet as Defendants.

      . Heather Doucet was being transferred by her employer, State Farm Mutual Automobile Insurance Company (State Farm). State Farm hired WHR to handle the sale of the home on behalf of Lee and Heather Doucet.

      .Contrary to Plaintiffs' reference, we note that the correct title for this entity is Pelican Real Estate, Inc. d/b/a Coldwell Banker Pelican Real Estate (Coldwell Banker).

      . Team Realty’s Motion for Summary Judg- . ment asserted that Plaintiffs could not prove their redhibition claim. The trial court agreed. On appeal, Plaintiffs do not address the trial court's dismissal of their redhibition claim against Team Realty via summary judgment. Thus, the trial court’s ruling relative to redhibition is not before this court on appeal.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Khanh H. NGUYEN.
    No. 14-639.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      John Foster DeRosier, Fourteenth Judicial District Court District Attorney, Carla Sue Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellant, State of Louisiana.
    Michelle A. Breaux, Attorney at Law, Lake Charles, LA, for Defendant-Appel-lee, Khanh H. Nguyen.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

j,FACTS

The trial court quashed the bill of information charging the defendant, Khanh H. Nguyen, with issuing worthless checks in the aggregate amount of $70,000.00 to L’Auberge du Lac Casino.

The defendant was charged by bill of information filed on August 19, 2009, with issuing worthless checks, a violation of La. R.S. 14:71. Defense counsel entered a plea of not guilty on September 21, 2009. The defendant was called for trial on February 3, 2010, and failed to appear. A bench warrant was issued, and the defendant’s bond was forfeited. On October 6, 2010, trial was continued at the request of defense counsel. The minutes of November 28, 2011, and September 4, 2012, indicate that, on motion of the state, at the request of the defense, the trial date was refixed. On January 22, 2013, the defense requested that the trial date be continued, and, on motion of the state, the trial was refixed. On September 16, 2018, trial in this matter was refixed at the request of the defense. On October 18, 2013, the defendant filed a motion to quash. A hearing on the motion was held on October 30, 2013, and the trial court granted the motion.

.The state filed a motion for appeal on November 6, 2013, which was granted. The state is now before this court asserting the following two assignments of error. For the reasons set forth herein, we vacate the trial court’s ruling granting the motion to quash and remand this matter to the trial court for further proceedings.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. The present appeal was filed Rby the state seeking review of the trial court’s granting of the defendant’s,motion to quash. This court has found that an error patent review is required in such cases. State v. Brignac, 10-276 (La.App. 3 Cir. 10/6/10), 49 So.3d 960; State v. Gutweiler, 06-561 (La.App. 3 Cir. 9/27/06), 940 So.2d 160, ajfd in part, rev’d in part on other grounds, 06-2596 (La.4/8/08), 979 So.2d 469. After reviewing the record, we find no errors patent.

ASSIGNMENTS OF ERROR

1. The trial court erred when it granted the Defendant’s motion to quash filed years after arraignment and that was not based on grounds provided by the quashal [sic] statutes.
2. The trial court erred when it granted the Defendant’s motion to quash without a contradictory hearing based on a ruling he made in an unrelated matter.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, the state contends that the trial court erred when it granted the defendant’s motion to quash, which was not based on grounds provided by the relevant statutes, filed years after arraignment.

Louisiana Code of Criminal Procedure Article 532 (footnote omitted) sets forth the general grounds for a motion to quash as follows:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
la(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5)A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
(10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.

Louisiana Code of Criminal Procedure Article 534 provides the special grounds for a motion to quash as follows:

A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.

Louisiana Code of Criminal Procedure Article 535 provides for the time to file a motion to quash, in pertinent part, as follows:

A. A motion to quash may be filed of right at any time before commencement of the trial, when based on the ground that:
(1) The offense charged is not punishable under a valid statute;
(2) The indictment does not conform with the requirements of Chapters 1 and 2 of Title XIII;
|4(3) Trial for the offense charged would constitute double jeopardy;
(4)The time limitation for the institution of prosecution has expired;
(5) The court has no jurisdiction of the offense charged; or
(6) The information charges an offense for which prosecution can be instituted only by a grand jury indictment.
(7) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.
These grounds may be urged at a later stage of the proceedings in accordance with other provisions of this Code.
C. A motion to quash on grounds other than those stated in Paragraphs A and B of this Article shall be filed in accordance with Article 521.

Louisiana Code of Criminal Procedure Article 521 provides the time for filing pretrial motions, in pertinent part, as follows:

A. Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
B. Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

In State v. Perez, 464 So.2d 737, 739-40 (La.1985), the supreme court discussed the nature of a motion to quash and stated the following:

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534. It is treated much like an exception of no cause of action in a civil suit. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971).
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the | ¡¡pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720 (1971); State v. Ponthieux, 254 La. 482, 224 So.2d 462 (1969). The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974); State v. Snyder, 277 So.2d 660 (La.1973).

In State v. Advanced Recycling, Inc., 02-1889, pp. 9-10 (La.4/14/04), 870 So.2d 984, 989, the supreme court found:

An exception exists for cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial. See State v. Legendre, 362 So.2d 570, 571 (La.1978 — quashing of bill of information for aggravated battery proper when state alleged that the dangerous weapon used was a concrete parking lot).

In his motion to quash, the defendant stated the following, in pertinent part:

1.

Defendant, KHANH H. NGUYEN submits that the Bill of Information fails to charge an offense which is punishable under a valid statute and that discovery provided by the State of Louisiana has shown a ground for quashing the indictment under Article 485.[ ]
Once the Gasino remembered that defendant, KHANH H. NGUYENM was already in default with other Casinos and that defendant had previously defaulted on a marker to them, the casino recalled the money from the defendant after 15 days, instead' to [sic] the customary 30 days normally allowed before markers are called for payment.

5.

L’Auberge Dulac Casino contacted KHANH H. NGUYEN between April 1, 2008 and March 20, 2009 and attempted to work out some type of immediate payment from the defendant to them. The Casino pushed the State of Louisiana to accept charges against KHANH H. NGUYEN for worthless checks since they did not receive complete payments from the defendant.

6.

L’Auberge Dulac Casino was aware that under the gaming law they could lose their gaming licence [sic] if they issued markers to any person who has been in default on markers with any casino. The casino was also aware that they were not authorized to issue markers to KHANH H. NGUYEN because the defendant was in default on markers with other casinos and that the defendant has previously been in default with them less than one year prior to the casino issuing these markers. That information was not provided to the State of Louisiana prior to the decision of the State of Louisiana to criminally charge KHANH H. NGUYEN.

7.

Before the defendant can be charged with issuing worthless checks, it must be proved that at the time the checks were issued that the defendant intended to defraud the victim. Louisiana Revised Statutes 14:71(A)(l)(a) provides, “{issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with the intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.” Louisiana Revised Statutes 14:71(a)(l)(b) provides, “[t}his Section shall apply to a check, draft, or order tended for satisfaction, in whole or in part, of payment due on the installment contract, open accounts, or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay.” Considering the language of the statute, it is clear that the intent to defraud must exist at the time the check is issued, i.e. coincident with the first deliver |7[sic] of the instrument in complete form. La. R.S. 14:71, Reporter’s Comment.

8.

The State of Louisiana cannot prove that KHANH H. NGUYEN intended to defraud the L’Auberge Dulac Casino. The State has no knowledge that at the time the casino markers were issued, that KHANH H. NGUYEN did not have sufficient funds in his account to cover the checks or that the defendant had closed or would close his account before the checks were presented to the bank for payment. It only has evidence that less than 80 days after most of the checks were presented for payment that the account was either empty or closed. The State of Louisiana may only have evidence that some Forty-Three years after one of the checks was presented for payment that payment was not made. The State of Louisiana was not informed by L’AUBERGE Dulac Casino that this is a standard practice, before issuing it’s [sic] lines of credit and accepting patron markers, that it ascertains that the patron has sufficient funds available to cover the line of credit or maker [sic] it issued to the patron. L’AUBERGE Dulac Casino did not inform the State of Louisiana that it did not follow it’s [sic] standard customary 30 day wait period before it issued the checks to the bank for payment once they realized that they should not have issued the markers. The State of Louisiana originally informed counsel for the defendant, KHANH H. NGUYEN[,] that L’AUBERGE Dulac Casino followed the normal practice in this case. The State of Louisiana did not inform counsel for defendant until September 16, 2018, more than four (4) years after defendant was charged the L’AU-BERGE Casino had presented some new information about defendant’s banking practices.

9.

Furthermore, the checks at issue in this matter, which were casino markers alleged to have been signed by KHANH H. NGUYEN, and issued to him based upon information provided to the L’Au-berge Dulac Casino which granted to him a line of credit, were alleged to have been issued on February 22, 1965; February 22, 2008; February 23, 2008; February 27, 2008 and March 3, 2008. However, some of the items were presented for payment in less time than the immediate 30 day period once the Casino found out it’s [sic] mistake. Instead the Casino present [sic] the items for payment some 15 days after taking the last item in this line of credit. It also appears that one of the items was presented for payment some 43 years after it was requested.

10.

|sThe casino, L’Auberge Dulac also made errors in all of it’s [sic] paperwork against defendant, KHANH H. NGUYEN. If you look at their discovery and police report you will see where the casino states that KHANH H. NGUYEN made the alleged withdrawals or markers beginning on February 22,1965 to March 7, 2008.

At the hearing on the motion to quash, which was held on October 30, 2013, the state objected to proceeding with the hearing. The trial court then stated it would not hear the motion and would set a hearing date, as the presentation of evidence was necessary. Defense counsel asserted there was no need to subpoena anyone because the case involved markers, which were not worthless checks. The trial court then asked: “this is one of those cases where they gave him a marker and did not give him a — he did not give them a check.” Defense counsel indicated the trial court was correct. The trial court asked what the law was regarding the handling of markers as checks. The following exchange subsequently occurred:

MS. BREAUX:
That the gaming police department are [sic] supposed to enforce on the casino when they can lose their license for giving someone markers when they’re already in default on markers.
MS. BREAUX:
And further more [sic], he was already in default with them on markers. And then they called him back within 15 days when they realized what they’re [sic] screw up was.
MS. BREAUX:
And then tried to send letters out. We have all of that. Tried to get him to pay.
THE COURT:
|3So, basically what you’re saying is, while markers are accepted by the Code, like a check.
MS. BREAUX:
They’re not.
THE COURT:
The law also required that they not give him a marker if he is [sic] already in default for prior markers, right?
MS. BREAUX:
That’s correct.
THE COURT:
And they gave—
MS. BREAUX:
And I have all the copies of all the places—
THE COURT:
And they [sic] supposed to also call and check and make sure he has sufficient funds in the bank to cover the markers.
MS. BREAUX:
Correct.
THE COURT:
And if they don’t do that then they can — subject to lose their license, okay.
MS. BREAUX:
Correct.
THE COURT:
And in this case they didn’t do it. MS. BREAUX:
Correct.
|inTHE COURT:
And now they [sic] trying to — they [sic] trying to proceed against this man.

The trial court went on to state the following:

Yeah, stop — stop—stop. • The Court is well aware of the argument being made on this Motion to Quash. We had a detailed testimony from law enforcement, State Police, with regard to handling of these markers in the past, and testimony from people from L’Auberge in another case, a case which is — what’s the name of that case.
Okay. This case is identical, not identical, but involved the same issue in that case. And the Court granted the Motion to Quash in that case. And in this case, while the Court finds that the casino in question did, in fact, violate the letter of law, in that they gave a man markers in this case when he was already in default. They failed to show that he had money in the bank to cover the markers.
And then they’re trying to enforce those markers. I think they forfeit the right to go against him when they gave him markers that were not — in violation of the law.

The trial court then granted the motion to quash “for the same reasons granted in the other case number.” The following exchange ensued between the trial court and the state:

MR. BABINEAUX:
Judge?
THE COURT:
To which the State objects and take [sic] writs.[]

InThe trial court then informed defense counsel that it did not want to hear her arguments, “[b]ecause it’s the same laws I heard in another case.” The trial court subsequently stated, “And I — I’m making a finding that the casino cannot proceed with their complaint because they did not do what the Code required that they do in order to issue the markers. And some of them already prescribed anyway.”

The state argues that, while the defendant’s motion to quash stated the offense charged was based on an invalid statute, the defendant actually argued the state could not prove he had the intent to defraud the casino, which is an issue to be resolved at trial. The state asserts that this court has found that a defendant’s defense to a charged offense cannot form the basis of a motion to quash. In support of its claim, the state cites State v. Brown, 07-388 (La.App. 3 Cir. 10/3/07), 966 So.2d 1138, writ denied, 07-2159 (La.3/28/08), 978 So.2d 304, and writ denied, 08-326 (La.3/28/08), 978 So.2d 312, in which this court quoted State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, cert, denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998), wherein the supreme court stated what a motion to quash was and what could be considered by the trial court at a hearing on such a motion, which did not include a defense on the merits.

The state argues that the defendant’s motion was not a valid motion to quash based on La.Code Crim.P. art. 535(A)(1) or any other ground listed in section A, which is allowed to be filed at any time prior to the commencement of trial. Accordingly, the defendant’s motion is untimely, as it was not filed within fifteen days of arraignment pursuant to La.Code Crim.P. art. 521. The state notes the | ^defendant was arraigned on September 21, 2009, and his motion to quash was filed on October 18, 2013. The state contends the motion was untimely and should not have been considered by the trial court.

In State v. Bivens, 11-156 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, writ denied, 11-2494 (La.3/30/12), 85 So.3d 115, the defendant filed several pro se motions, two of which the trial court construed as motions to quash. In the first motion, Bivens asked the trial court to dismiss the charge of illegal carrying of weapons. The request in Bivens’ second motion was vague but appeared to ask the trial court to quash all charges against him. Bivens complained that police used improper traffic stop procedures, failed to initiate a legitimate traffic stop, and failed to initiate an investigative stop. Bivens also asserted that he was entrapped, police failed to maintain a line of sight, he did not consent to or authorize the search and seizure, and he was not Mirandized. Lastly, Bivens averred that police did not have probable cause or suspicion, and there was no prior investigation of suspects to suggest he was involved in criminal activities. This court found that Bivens’s motions did not set forth a ground found in sections A or B of La.Code Crim.P. art. 535;' thus, he was required to file the motion in accordance with La.Code Crim.P. art. 521, within fifteen days of arraignment.

In State v. Perry, 12-298 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, unit denied, 12-2657 (La.5/24/13), 116 So.3d 659, the defendant argued the trial court erred in failing to hold an evidentiary hearing on his pretrial motions, including a motion to quash the bill of information for prosecutorial misconduct. This court discussed defendant’s prior writ application as follows:

The defendant petitioned this court for supervisory writs, contending that the trial court erred in failing to hold a hearing on his motions. On May 11, 2011, a panel of this court, in an unpublished hawrit opinion bearing numbers 11-571 and 11-572, denied the defendant’s request, stating: ,

WRITS DENIED; STAY DENIED:

The trial court did not abuse its discretion in denying Defendant’s “Motion to Quash State’s Bill of Information Based on Prosecutorial Misconduct” and “Motion to Suppress Based on Prosecutorial Misconduct” as untimely. La.Code Crim.P. art. 521. Further, the trial court did not err in denying the motion to quash, as the ground alleged in the motion is not a proper grouñd for such motion. La.Code Crim.P. art. 532. Additionally, the trial court did not err in denying the motion to suppress, as Defendant failed to prove that the evidence was unconstitutionally obtained. La.Code Crim.P. art. 703. As such, the trial court did not err ■ in denying Defendant’s request for the issuance of a subpoena to the assistant district attorney. La.Code Evid. Art. 507. Defendant’s request for a stay of the proceedings is hereby denied.

Id. at 577. This court further stated:

[W]e find that the trial court held a contradictory hearing on the defendant’s motions. We note that La.Code Evid. art. 507 only requires that the trial court hold a contradictory hearing, not that it requires the trial court to allow the parties to adduce evidence in support of their motion and that La.Code Crim.P. art. 703 requires that the trial court hold an evidentiary hearing only when “the defendant alleges facts that would require relief.” Further, the defendant’s pretrial motions were untimely pursuant to La.Code Crim.P. art. 521. See State v. Bivens, 11-156 (La.App. 3 Cir. 10/5/11), 74 So.3d 782, writ denied, 11-2494 (La.3/30/12), 85 So.3d 115.

Id. at 580.

In his motion to quash, the defendant asserted that the bill of information failed to charge an offense which was punishable under a valid statute and that discovery provided by the state had shown a ground for quashing the indictment. The defendant went on to discuss the state’s ability to prove his intent to defraud. At the. hearing on the motion, defense counsel asserted there was no need to subpoena any witnesses to the hearing because the case involved markers, which were not treated the same as worthless checks. Louisiana Code of Criminal |14Procedure Article 536 states, “[T]he court shall hear no objection based on grounds not stated in the motion” to quash. Although defense counsel’s claim regarding the treatment of markers .as worthless checks was a proper ground for a motion to quash, that ground was not set forth in the defendant’s motion to quash and could not be considered by the trial court. See State v. Pete, 12-378 (La.App. 4 Cir. 3/20/13), 112 So.3d 353.

Because the defendant’s motion to quash was an attack on the state’s ability to prove an element of the offense, the case is similar to Bivens, 74 So.3d 782, and the motion to quash should have been filed within fifteen days of arraignment. The defendant’s motion to quash was untimely and should not have been considered by the trial court. Accordingly, the trial court’s ruling quashing the bill of information is vacated, and this matter remanded to the trial court for further proceedings.

ASSIGNMENT OF ERROR NUMBER TWO

Even had the motion been timely filed, an issue has been raised regarding the necessity for a contradictory hearing in this matter, which we will address.

In its second assignment of error, the state that contends the trial court erred when it granted the defendant’s motion to quash without a contradictory hearing based on a ruling it made in an unrelated matter.

The state contends the trial court erroneously relied on testimony taken in another matter and applied it to the case at bar. The state asserts there was nothing to support the trial court’s finding that the cases were identical. The state argues that the trial court’s reliance on the argument of defense counsel and its prior ruling violated La.Code Crim.P. art. 537, which provides, “All issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.”

| iaThe state further argues that, due to the back and forth between the trial court and defense counsel, it was unable to make any argument, and without a contradictory hearing, neither the state nor the defendant is afforded a fair opportunity to present evidence. The state asserts that this court, in State v. Sensat, 07-425 (La.App. 3 Cir. 11/7/07), 969 So.2d 1274, held that a contradictory hearing be had oh all motions to quash. In Sensat, the defendant filed a motion to suppress evidence of her first DWI conviction, alleging it did not comply with the Boykin standards. Following the trial court’s grant of the motion to suppress, the defendant moved to amend the motion to that of a dual motion to quash and suppress. In addressing the issues presented by the state, this court stated the following:

In the instant case, the motion was raised at the beginning of the trial, but the trial court refused to permit the State to introduce witness testimony and relevant evidence. A review of the transcript indicates that the State was not given an opportunity to prove the constitutionality of the plea at issue. Further, the trial court specifically denied the State’s request to put Defendant’s attorney from the first offense on the stand in an attempt to meet its burden of proving the constitutionality of Defendant’s guilty plea to the first DWI conviction. Accordingly, if the trial court allows the filing of the written motion to quash, it is instructed to hold a contradictory hearing at which both the State and Defendant shall be given the opportunity to meet their respective burdens of proof.

Id. at 1276-77.

The state contends the trial court made its ruling based on a prior decision it had made, and nothing regarding that case was submitted into evidence to confirm that the facts were the same and the same result should be applied. The state argues that, while the same laws may be applicable to the case at bar and the case previously decided by the trial court, the trial court erred in not holding a | ^contradictory hearing on the issue. The state asks that this matter be remanded to the trial court for a contradictory hearing on the defendant’s motion to quash.

The defendant contends this court may not set aside the trial court’s finding in the absence of manifest error. The defendant also contends the trial court understood the facts as they related to markers given by the casino as opposed to checks, the gaming rules, and the prior testimony from a previous case. The defendant points out the trial court’s remark that it felt the casino forfeited the right to go against the defendant when it gave him markers that were in violation of the law. The defendant claims the trial court’s decision was a proper finding based on the testimony presented.

In considering a motion to quash, the trial court must accept as true the facts contained in the bill of information and in the bills of particulars and determine, as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, it may not include a defense on the merits. Perez, 464 So.2d 737. The defendant failed to file a motion for bill of particulars and relied on open file discovery. “[0]pen file discovery is not the equivalent of a bill of particulars.” State v. Tumbo, 07-270, p. 5 (La.App. 3 Cir. 10/3/07), 966 So.2d 1220, 1224. The evidence on which the trial court based its decision was not offered in the case at bar but was presented via testimony in another criminal matter heard by the same trial judge. The testimony not presented in the case at bar and not offered into evidence at the hearing on the defendant’s motion could not be considered by the trial court when determining the merits of |17the defendant’s motion to quash. The bill of information should have been the sole point of reference for purposes of disposition of the motion to quash.

The state attempted to speak during the hearing on the motion to quash, and the trial court stated, “To which the state objects and take [sic] writs.” The state was not allowed to present any argument on the merits of the motion to quash. For this reasons, the hearing held was not a contradictory hearing.

CONCLUSION

For the reasons set forth herein, the trial court’s granting of the defendant’s motion to quash was improper. The trial court’s ruling granting the motion to quash is reversed and the matter remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Louisiana Code of Criminal Procedure Article 485 provides:
      If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

      . The defendant argues the assigned errors in this matter should not be considered because the state failed to object to the trial court’s granting of the motion to quash. The trial court did not allow the state to speak and entered an objection on its behalf; therefore, we will consider the state’s assigned errors.

      . The standard of review cited by the defendant is incorrect. The trial court’s decision on a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198.


author: PAINTER, Judge.

text:
    Mark McDONNELL, et al. v. ARCHITECTURAL SOLUTIONS, LLC, et al.
    No. 14-432.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      J. Scott Loeb, Jennifer C. Poirier, Loeb Law Firm, Mandeville, LA, for Defendant Appellee, Detail Design-Build, LLC.
    William L. Melaneon, Melancon & Associates, LLC, Lafayette, LA, for Plaintiffs-Appellants, Mark McDonnell and Marie McDonnell.
    John P. Wolff, III, Mary Anne Wolf, Virginia J. McLin, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant, Architectural Solutions, LLC.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| ]Mark McDonnell and Marie McDonnell (Plaintiffs), appeal the trial court’s granting of an exception of prematurity filed by Defendant, Detail Design-Build, LLC (DDB), and dismissing their claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs entered into two separate contracts for the construction of their new home. One contract was with Defendant, Architectural Solutions, LLC (Architectural Solutions), and was signed on September 20, 2006. No arbitration clause is contained in the contract with Architectural Solutions. The other contract was with DDB and was signed on November 26, 2007. It is not disputed that the contract with DDB contains an arbitration clause.

Plaintiffs allegedly had numerous problems after moving into their home. They filed suit against Architectural Solutions and DDB. DDB filed an exception of prematurity on the basis of the arbitration clause in their contract. A hearing on the exception of prematurity was held on October 28, 2013. Judgment granting the exception of prematurity and dismissing Plaintiffs’ claims against DDB was signed on November 25, 2013. This devolutive appeal followed. Plaintiffs allege that the trial court erred in granting the exception because the arbitration clause should have been unenforceable because they did not agree to have to submit their disputes in separate forums and because DDB waived its right to demand arbitration. Plaintiffs also argue that the trial court erred in dismissing their claims against DDB instead of merely staying the proceedings and ordering them to arbitration. We find Plaintiffs’ arguments to be without merit and affirm the trial court’s judgment in its entirety.

| .DISCUSSION

Motion to Strike

Architectural Solutions filed a motion to strike portions of Plaintiffs’ brief that it contends are unsupported by the record. The motion was referred to the merits.

Specifically, Architectural Solutions points out the following misstatements of fact made by Plaintiffs in brief:

1. The McDonnells contracted with Architectural Solutions and DDB in 2007.

2. The McDonnells entered into a “design build” project with both Architectural Solutions and DDB.

3. Alan Broussard and Marc Thomas own both DDB and Architectural Solutions and operate the companies as a single entity.

4. Alan Broussard and Marc Thomas represented that Architectural Solutions and DDB were the same “design-build” company.

5. The insurance for design-build is a new product, hard to come by, and explains why Architectural Solutions and DDB had the McDonnells sign two separate contracts.

6. The defects that form the basis of the lawsuit, i.e., the buckled floors, were caused by Alan Broussard and Marc Thomas, and these two individuals are responsible for any defects.

7. Damages in the home are obvious.

8. Architectural Solutions and DDB have unnecessarily compounded the McDonnell’s litigation costs.

We note that Plaintiffs have not made any citations to the record other than those to support the dates and titles of pleadings filed, and Plaintiffs introduced no evidence in the trial court to support their factual allegations. “Appellate briefs of | .parties are not part of the record on appeal, and the appellate court cannot consider facts referred to in appellate briefs.” Ledet v. Nat’l Car Rental Sys., Inc., 96-1270, p. 11 (La.App. 3 Cir. 6/4/97), 694 So.2d 1236, 1242. Thus, while we question why these issues are raised by Architectural Solutions (who admittedly is not technically a party to this appeal) and not DDB, we are compelled to agree with Architectural Solutions. Consequently, to the extent that Plaintiffs’ brief references “facts” that are not supported by the appellate record before us, the motion to strike is granted.

Exception of Prematurity

“A trial court’s granting of a dilatory exception of prematurity ... is a final judgment subject to a manifest error standard of review.” Dietz v. Superior Oil Co., 18-657, p. 3 (La.App. 3 Cir. 12/11/13), 129 So.3d 836, 839.

Louisiana law favors arbitration. Detraz v. Banc One Sec. Corp., 13-191 (La.App. 3 Cir. 10/19/13), 123 So.3d 875, writ denied, 13-2633 (La.2/7/14), 131 So.3d 865. In this case, Plaintiffs do not assert that the arbitration clause is not applicable or that it is invalid. They merely argue that it should not be enforced because the other Defendant, Architectural Solutions, cannot be compelled to arbitration. Plaintiffs argue that because the two Defendants have the same principals, they are unnecessarily compounding the litigation costs by seeking to enforce the arbitration clause found in one contract while refusing to submit to arbitration on behalf of the other company. It is clear that there are two separate contracts in this case, and it is not unusual for courts to order that certain claims proceed to arbitration where all claims are not subject to arbitration. Arbitration is a matter of contract, and a party who did not contract to arbitration cannot be compelled to submit thereto. Gunderson v. F.A. Richard & Assocs., Inc., 05-917 |4(La.App. 3 Cir. 8/23/06), 937 So.2d 916. Therefore, we find no manifest error in the trial court’s granting of DDB’s exception of prematurity.

Dismissal

failure of a party to arbitrate in accordance with the terms of an agree-agreemay be raised either through a dila-dilaexception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration.” Gary v. Monda Well Sews., Inc., 97-1131, p. 2 (La.App. 3 Cir. 2/4/98), 706 So.2d 1096, 1097. Thus, we find Plaintiffs’ argument that the trial court érred in dismissing their claims against DDB rather than stay-staythe action against DDB to be without merit. The trial court did not err in dis-disPlaintiffs’ claims.

Alleged Waiver of Right to Arbitration

The petition in this case was filed on June 22, 2010. DDB filed the exception of prematurity on August 10, 2010, and had it set for hearing on September 7, 2010. Plaintiffs at first requested that the hearing be rescheduled for November 3, 2010. Before that hearing could be held, Plaintiffs again filed a motion to continue without date. DDB again had the matter set for hearing, and Plaintiffs again requested a continuance. The hearing was finally held on October 28, 2013. Plaintiffs argue that DDB waived its right to arbitration because it waited more than three years to have its exception heard and participated in the litigation. The burden of proving a waiver of arbitration is on the party alleging the waiver, in this case Plaintiffs. Lincoln Builders, Inc. v. Rain-tree Inv. Corp. Thirteen, et al., 37,965 (La. App. 2 Cir. 1/28/04), 866 So.2d 326. Furthermore, the Louisiana Supreme Court has noted that “[bjecause of the strong public policy favoring the right to demand arbitration, a party’s otherwise explainable conduct should be construed against waiver of the right” and “[ojnly in extreme cases have |scourts found waiver of the right to demand arbitration.” Matthews-McCracken Rutland . Corp. v. City of Plaquemine, 414 So.2d 756, 757 (La.1982). Thus, we find Plaintiffs’ waiver argument to be without merit since all of the continuances were as a result of Plaintiffs’ own motions.

DECREE

The motion to strike filed on behalf of Architectural Solutions, LLC is hereby granted. The trial court’s granting of the exception of prematurity and dismissing the claims of Mark McDonnell and Marie McDonnell against Detail Design-Build, LLC, is hereby affirmed. All costs of this appeal are assessed to Plaintiffs-Appellants, Mark McDonnell and Marie McDonnell.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. William Felix VAIL.
    No. 14-436.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      John Foster DeRosier, 14th JDC District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA for PlaintiffiRespondent State of Louisiana.

      Hugo A. Holland Jr., Assistant District Attorney, Shreveport, LA, for Plaintiíf/Re-spondent State of Louisiana.
    Benjamin A. Cormier, Attorney At Law, Lake Charles, LA, for Defendant/Applicant William Felix Vail.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| iDefendant, William Felix Vail, was indicted for the 1962 second degree murder of his wife, Mary Horton Vail, a violation of La.R.S. 14:30.1. On November 13, 2013, the State filed a “404(B) Notice,” wherein it advised Defendant that it intended to introduce at trial evidence of the 1973 disappearance of his then-girlfriend, Sharon Hensley, and the 1984 disappearance of his second wife, Annette Carver-Vail. On the same date, the State filed a “Memorandum in Support of State’s 404(B) Notice.” On January 31, 2014, the State filed a “Post-Hearing Memorandum in Support of State’s 404(B) Notice,” with exhibits. On March 5, 2014, Defendant filed a “Post-Hearing Memorandum in Opposition to the State’s 404(B),” with exhibits. On March 6, 2014, the State filed a rebuttal to Defendant’s opposition entitled “Post-Hearing Memorandum in Support of State’s 404(B) Notice.”

On March 19, 2014, the trial court heard oral arguments regarding the State’s intent to introduce evidence of the disappearances of Ms. Carver-Vail and Ms. Hensley, following which the trial court ruled in favor of the State. Defendant sought review of the trial court’s ruling.

On its own motion, this court called the matter-up for oral argument to be heard on September 24, 2014. Thereafter, both the State and Defendant filed briefs in addition to those initially filed for and against the writ application.

FACTS:

Defendant’s first wife, Mary Horton Vail, died in October 1962. Defendant claimed he and his wife were out boating one night on the Calcasieu River when she fell overboard, and he was unable to save her from drowning. At the time, the coroner for Calcasieu Parish determined that the manner of death was accidental |2and the cause of death was drowning. Thereafter, a grand jury pretermitted the case as the it . did not find sufficient evidence that the death was not accidental as found by the then-coroner.

However, on an unspecified recent date, Doctor Terry Welke, the current coroner for Calcasieu Parish and an expert in forensic pathology, examined pictures of Ms. Vail’s body as it was being pulled out of the river and reviewed the coroner’s report made shortly thereafter. At a preliminary hearing, Doctor Welke testified that although he could not determine the cause of Mrs. Vail’s death, the manner of death was a homicide.

FACTS PERTAINING TO EVIDENCE OF OTHER WRONGS OR ACTS:

Sharon Hensley and Defendant met in San Francisco, California, sometime in the late sixties. They were arrested in Merced County for drug possession and child endangerment. In March 1974, Defendant wrote to Ms. Hensley’s mother and advised her that in 1973, he last saw Sharon in Florida, where she had boarded a sailboat with another couple and sailed away to cruise the world. No one in Ms. Hensley’s family has heard from her since. Ms. Hensley’s brother filed a missing person’s report in 2013.

Ms. Carver-Vail met Defendant when she was ■ fifteen and he was forty-one. They married in 1983 when she was seventeen. In August 1984, Ms. Carver-Vail deeded her interest in property she inherited from her father in Oklahoma to Defendant in fee simple. In October of that year, Ms. Carver-Vail’s mother filed a missing person’s report on her daughter. Defendant advised the police that on September 19, 1984, he dropped Ms. Carver-Vail off at a bus station in St. Louis. He stated her intent was to go to Mexico. Ms. Carver-Vail has not been seen or heard from since by anyone who has come forward.

| JSSUE:

Defendant argues that the trial court erred when it ruled that evidence of the two women’s disappearances was admissible at trial “when the State failed to present evidence of the alleged acts and the hunches and speculations that was [sic] offered in support of the State’s argument are [sic] overly prejudicial and not allowed under Rule of Evidence 403.” He further argues:

That the District Court erred as a matter of law by ruling that Sharon Hensley and Annette Carve[r] Vail could be presumed dead and that the Defendant could be presumed to be the one who killed them since he was the last person the District Court knew that had contact with the two women. That the District Court erred in [sic] a matter of law in its application of the doctrine of chances. And that the District Court erred as a matter of law when the District Court presumed that the reason there was no evidence to suggest that a crime took place, or that the [Defendant was involved in the commission of a crime in regards to Sharon Hensley and Annette Carver Vail was because the Defendant spent years planning and executing the murders, rather and [sic] concluding that a complete lack of evidence meant the Defendant was not guilty of murdering. Annette Carver Vail and/or Sharon Hensley.

ANALYSIS:

Louisiana Code of Evidence Article 404 provides, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Even conduct which occurred after the charged offense may.be admissible pursuant to Article 404(B). State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109. See also State v. Altenberger, 13-2518 (La.4/11/14), 139 So.3d 510, cert, denied, 555 IJJ.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Furthermore, it is the State’s burden to prove that a defendant committed the other crimes, wrongs, or acts by clear and convincing evidence. State v. Prieur, 277 So.2d 126 (La.1973); State v. Stevens, 11-175 (La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ denied, 11-2496 (La.3/30/12), 85 So.3d 115. However, La. Code Evid. art. 403 provides that “[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

In its “Memorandum in Support of State’s 404(B) Notice,” the State argued that evidence of the disappearances of the two women was admissible for the purpose of showing absence of mistake or accident. Defendant contended that his first wife’s death was accidental. Referring to State v. Monroe, 364 So.2d 570, 572 (La.1978), quoting from 2 Wigmore on Evidence, § 302 (3d.1940), the State argued that the “ ‘doctrine of chances’ eliminates the element of innocence by multiplying instances of the same results until it is perceived that this element cannot explain them all.” Defendant claimed that no action on his part caused his first wife’s death or the disappearance of his girlfriend, eleven years after the death of the wife, or the disappearance of his second wife, also eleven years after the disappearance of Ms. Hensley. The State argued that to have lost a wife, allegedly to an accident, then to have two other significant women in his life disappear under suspicious circumstances indicated that the death of his first wife may possibility not have been accidental. Again quoting 2 Wigmore on Evidence, § 302 (3d.l940), the State argued that “similar results do not usually occur through abnormal causes; and the recurrence of a similar result tends increasingly with each instance to negate accident or inadvertence.”

|i;In its “Posb-Hearing Memorandum in Support of State’s 404(B) Notice,” the State speculated that Defendant had a reason to dispose of Ms. Hensley. When they were in California, they had Defendant’s eight-year-old son, Billy Vail, with them. The couple was arrested after the boy walked into a police station one day and told the police he was tired of living in an orchard, eating only grapes, and being force fed drugs. He also told them that he had overheard his father tell Ms. Hensley that he murdered his wife. This prompted a renewal of the investigation into Mrs. Vail’s death in Lake Charles. According to the State, years later, Billy Vail made a taped statement but died shortly thereafter. The State claims to have a copy of the tape; however, the tape was inadmissible at trial.

According to Defendant, after Ms. Hensley got out of jail in California, she wanted to go off on her own. He wrote a letter to Ms. Hensley’s mother explaining her disappearance. He noted in the letter that Ms. Hensley’s mother had contacted his mother in an attempt to locate Ms. Hensley. He told Ms. Hensley’s mother that her daughter wanted to disappear and start her life over again, mostly to get away from her. He wrote that they had met a couple in Florida who wanted to take them away on a world cruise on a sailboat. He knew only the couples’ first names and had no information regarding the sailboat’s name or registration. While he professed his love for Ms. Hensley, he stated he did not want to go on the trip, so she decided to leave him.

In the memorandum, the State reproduced, in part, a letter Defendant sent to his parents on March 20, 1973, telling them about Ms. Hensley’s disappearance:

I’m not married anymore and although she has just been gone two days my thinking is starting to clear from the clouds that were in her mind. I saw them there from the time she got us busted in California and I thought I could get her clear but I’ve given up the experiment (with her anyway) so now I can began training full time.... One | nmore thing about my last wife (for your own information and in case her folks inquire) she met a man who has a boat and although he invited us both, I convinced them I have more pressing things to do at the moment, and so, I sent them off to the ocean and each other with my good wishes and blessing (and, I might add, all to my great relief.).

The State speculated here that once Ms. Hensley had indicated she wanted out of the relationship, it was to his benefit to dispose of her somehow since he had confessed to her that he murdered his wife, and when she was out of his control and domination, she could corroborate his son’s story that he had confessed to her. Although there was some investigation as to her whereabouts, Ms. Hensley’s family never saw or heard from her again, nor was there any social security activity reported.

Defendant further argued that Sharon Hensley was a rebellious hippie whose disappearance was not a surprise to her family. He pointed to a letter her mother supposedly wrote to investigators regarding her daughter wherein she described her daughter’s behavior after she had met Defendant. Defendant pointed out that the family did not report Ms. Hensley missing until several years later at the State’s prompting. He stated that she had independently told her family that she was leaving on a boat to travel the world. However, in the same above-mentioned letter, Ms. Hensley’s mother stated that the very last time she had any communication with her daughter was when she called from Defendant’s sister’s house on February 3,1973, and told her mother that she and Defendant were on their way to New Orleans. He further argued that there was no evidence that he even knew of the confession he allegedly made to Ms. Hensley or that the investigation into his wife’s death had been reopened in Lake Charles; therefore, there was no reason to be rid of her.

17Pefendant’s second wife, Annette Carver-Vail, was reported missing, and as late as 1994, a social security check indicated no income contributions under her social security number since 1973. Defendant first met Annette Carver when she was fifteen years old in Houston, Texas. They were married August 15, 1983, when he was forty-three and she was seventeen. When she turned eighteen, she received one hundred thousand dollars from a trust fund established by insurance proceeds from the death of her father several years earlier. She also inherited some realty. In 1982, allegedly using some of the funds from the trust, her mother purchased property in her and Annette Carver’s name in Tulsa, Oklahoma. In May 1984, Ms. Carver-Vail’s mother deeded her interest in the property to her daughter. On August 28,1984, Ms. Carver-Vail deeded the property over to Defendant in fee simple. According to Defendant, in September 1984, he drove his wife to a bus station in St. Louis, Missouri, and dropped her off. He told the investigators she planned to travel to Denver first to obtain false identification and then on to Mexico. He also claimed that she took most of the cash they had left from her inheritance, about fifty thousand dollars, but left him ten thousand dollars for needed repairs on the house.

The State pointed out, however, that the Tulsa police investigation led to Defendant’s sister, Sue Jordan, who told the investigators that in October 1984, Defendant and Ms. Carver-Vail showed up at her house in Lake Charles. They attended the Cal-Cam fair. The date of the fair was verified by the investigator. A few days after the fair, Defendant and Ms. Carver-Vail left, but he returned a few days later by himself and said that Ms. Carver-Vail had gone to Mexico. Later, Ms. Jordan denied telling the investigators that Ms. Carver-Vail did not return with Defendant. Ms. Jordan has subsequently died. The State contends it has a witness [gwho will testify to the foregoing facts should the evidence of Ms. Carver-Vail’s disappearance be admitted at trial.

In its memorandum, the State concluded:

Vail’s story in relation to the two presumed dead women is shockingly similar in many respects, the most important of course being that both Sharon and Annette, who never met one another and who are separated by both time and space, decided independently of each other and independently of Felix Vail that they each needed to shed all contact with their current lives, leaving behind parents and siblings and all that they had ever known and loved, to become new people, clean and free from memory associations and to drop everyone and start over.

In his “Posb-Hearing Memorandum in Opposition to the State’s 404(B) Notice,” Defendant argued that all of the State’s allegations were solely assumptions and not based on any physical evidence that he was involved in the two women’s decisions to sever all ties with their families and friends. He claimed he had conversations with Ms. Carver-Vail a few years after her departure and that she had called him to tell him she was well and had children. He claimed that he went to Mexico at some point to look for her. He stated that Ms. Carver-Vail had a boyfriend in Mexico at one time, which her mother verified in her reports to the investigating police officers. He further pointed out that there were significant indications that six months after she left, she appeared in court in Claremore, Oklahoma, and pled guilty to a reduced charge of malicious destruction of property.

The State countered that while it had procured documents which indicated that Ms. Carver-Vail was in Claremore, Oklahoma, in court six months after Defendant insisted she left for Mexico, the documents showed that he had been charged with the same offense and was in court that day also. The State argued that neither Defendant nor Ms. Carver-Vail were actually in court and that their attorney waived their appearances and entered pleas for them. The State further | ¡¡argued that if the facts were otherwise, Defendant would have told investigators about seeing her after she reportedly left for Mexico. However, over the years, Defendant never said a word about it, only telling investigators sometime in the 1990’s that she had called him within a year or two of disappearing to Mexico.

In his memorandum, Defendant also pointed to and discussed Monroe, 364 So.2d 570, and quoted Wigmore regarding the “doctrine of chance.” He stated that pursuant to Wigmore, the doctrine required that the evidence sought to be admitted as prior “acts” must be similar in incidents and results and must be committed within a limited time period. He argued that there was no similarity between the death of his first wife and Ms. Hensley’s or Ms. Carver-Vail’s riddance of their family and friends for a new life. Defendant further argued eleven years and twenty-two years after the underlying alleged crime was not “within a limited time frame” as required by the doctrine.

In Monroe, the defendant was convicted of the strangulation death of an elderly man. He admitted he strangled the man and admitted to strangling another man to death the next day. However, he claimed self-defense in both cases. On appeal, he argued that evidence of the subsequent offense was not admissible because it did not show sufficient probative value to outweigh its prejudicial effect. The supreme court held:

Because the introduction of evidence of other acts of misconduct involves substantial risk of grave prejudice to a defendant, evidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. State v. Prieur, 277 So.2d 126 (La.1973). The general rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a possibility that he committed the crime on trial because he is a man of criminal character. State v. Sutfield, 354 So.2d 1334 (La.1978). One of the other purposes for which such evidence may be relevant is to show, by the similar offense, that- the act on trial | i0was not inadvertent, accidental, unintentional, or without guilty knowledge. McCormick on Evidence, § 190 at p. 450 (Cleary ed.1972); La.R.S. 15:455, 456. However, in order for such evidence to be admissible to prove intent, or for another permissible purpose, there must be a real and genuine contested issue of intent at trial; State v. Nelson, 357 So.2d 1100, 1103 (La.1978); State v. Pri-eur, supra, and the probative value of the evidence must outweigh its prejudicial effect. State v. Sutfield, supra, State v. Prieur, supra.
The reasons underlying the exception for proof of intent when genuinely at issue and the prerequisites to its application were set forth by Wigmore, who observed:
“To prove Intent, as a generic notion of criminal volition or wilfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances, the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process or reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.
“A. In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offence according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. * * *
“It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be [n do we, — either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been doné and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the Courts, namely a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts eviden-tially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand.
“Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance. * * *
“In short, there must be a similarity in the various instances in order to give them probative value — , as indeed the general logical canon requires (ante, § 33).” 2 Wigmore on Evidence, § 302 (3d ed.1940).
Applying the relevant principles to the instant case we conclude that the trial judge properly invoked the exception and allowed the introduction of the similar offense evidence to negate self defense and lack of intent. There was little if any doubt that the defendant had killed Ulysses Martin. However, a real and genuine issue as to his specific intent to kill or cause great bodily harm, which the State had the burden of proving, La.R.S. 14:30.1, was raised by the evidence of self défense and insanity. The evidence of the subsequent act, which was strikingly similar, had great probative value to show the improbability that the defendant acted in self defense or without requisite intent in strangling two derelicts on successive nights at the same spot on the river batture.

Monroe, 364 So.2d at 572-73.

|12At the hearing, held on March 19, 2014, the State and Defendant presented the trial court with the arguments set forth in their memorandums. Defendant further argued that the State was attempting to divest him of the presumption of innocence by suggesting through the admission of the long-time disappearances of Ms. Hensley and his second wife the presumption that they were dead. According to Defendant, if the trial court presumed the women were dead, then it was shifting the burden of proving that they were alive onto Defendant. He argued the burden of proving that he had committed other crimes for the purpose of La.Code Evid. 404(B) was on the State. He argued that if the State was allowed to put on evidence of the two women’s disappearance at trial, he would be required to prove that they were still alive, and that he cannot do. Defendant contends that he will be extremely prejudiced by having to also defend against two presumed murders.

The State further argued that it can clearly and convincingly prove by circumstantial evidence that Defendant was the last person to ever see or hear from the two missing women and that the circumstantial evidence would also show the bizarrely similar circumstances under which the women disappeared. The State suggested that Defendant did not understand the “doctrine of chances” requirements. See 2 Wigmore on Evidence, § 302 (3d ed.1940). The “doctrine of chances” required only that the results were similar but not necessarily the mechanism by which the results were reached. Finally, the State argued that the trial court, for the purpose of deciding the issue of whether the evidence was allowable and not overly prejudicial, could presume the women were dead without violating Defendant’s right to be presumed innocent. The State pointed out that one was presumed competent to proceed to trial. “Because we presume competence | isand not incompetence, does that somehow mean that we violated the defendant’s constitution right?”

The trial court then ruled, as follows:
It appears that the only undisputed matter of issue, whether this Court should allow reference and introduction of the evidence of other bad acts at this defendant’s trial for murder of his wife, Mary, is that this particular fact scenario or situation is obviously very novel in the state of Louisiana. The bad acts sought to be introduced by the State are incidences, if you will, of events that are alleged to have taken place not only subsequent to the death of Mary Vail in October 1962 but many years, hence, the latter of them occurring some 22 years later. Add to that, the issue that the incidences, again, if you will, of bad acts are of great, great questionable dispute.
Though it may well be argued that both of the subsequent incidences involved the wife or significant other of Mr. Vail and by operation of law are presumed dead, neither of the bad acts resulted in criminal charges being brought against Mr. Vail, and I concede that. As to the presumption of death, the only applicable statute that addresses this circumstance appears to be Louisiana Civil Code Article 30, which states in pertinent part, “when a person has disappeared under circumstances such that the death seems certain, his death is considered to have been established even though no body has been found.” Combine that with Civil Code Article 54 that sets that period of time legally at five years, and obviously we’re beyond that five years on both of those by many, many years.
As to the issue of certainty of the death of Sharon Hensley, again, without chronicling the entirety of the State’s brief regarding that disappearance, it appears to be fairly well documented and determined that the last person of any relation to her — to see, hear, or speak with her is Mr. Vail. Now, if it’s— by his own admission, Sharon Hensley did embark on that sailing vessel and has not been heard from or seen since that day, she may well be now some 40 years later presumed dead. Secondly, his second wife, Annette Carver Vail, again by Mr. Vail’s own words, was last seen by any reporting person in St. Louis, Missouri on or about September 15, 1984, that separation approaching 30 years now.
The State argues that it should be allowed to admit to the trier of fact these two instances of uncharged misconduct evidence not to prove intent but to prove the absence of mistake or accident. The analysis for admitting this uncharged misconduct is drawn by applying the Doctrine of Chances or probability theory or — probability theory. Evidence of other similar happenings that might be only marginally probative if considered in isolation can become | uhighly probative when considered in conjunction or collectively or as in repeated instances.
The defense argues that the acts to be considered need to be similar with similar outcomes. I recognize that. There is some dispute or uncertainty as to the element but even allowing for this contended requirement, similarity recognized by the Court is the elimination of a spouse or a significant other. There’s no dispute that Mary Vail was deceased. And as indicated earlier in this discussion, this Court is assuming, at least until determined otherwise, that the other two women of interest are deceased, also.
The defendant next argues that this same Doctrine of Chances requires that the act take place within a limited time, not 11 or 22 years after the demise of Mary Vail. It is conceded that 11 and 22 years after a certain event are significant periods of time, and I recognize that.
However, the act or acts that question here are substantially and arguably the most egregious possible and their very substance suggests years of nurturing and preparation. In other words, these acts are not shoplifting or even burglaries. The enormity of their consequences are time-consuming events. By their nature — very nature, they take time.
Lastly, the defendant would argue that the acts actually occurred, would dispute that those actually occurred as they pled previously. This Court at this time is presuming that Sharon Hensley and Annette Craver Vail are deceased and under questionable circumstances. By Mr. Vail’s own words, he is the last person of interest to see either of these two women alive, at least until someone else reveals to this Court or a trier of fact to the contrary.
The analysis up to this point by the Court leads it to rule that these two instances of disappearance and likely deaths are admissible at the trial of Felix Vail for the murder of Mary Vail.
Now, defense has suggested that the Court consider Article 403 of the Code of Evidence, which addresses the prejudicial nature of the evidence otherwise relevant. We still have to go through that. The article states in pertinent part that although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. I have already determined that the probative value of the prior acts is a material issue.
Other than character, no doubt the revelation — revelation of these acts to a jury would create an effective suspicion of guilt as it relates to the defendant, or the State would have no interest in disclosure. However, this Court believes that the probative value to 11sthe trier of fact outweighs the unfair prejudice. Concerns of unfair prejudice can be alleviated by limiting jury instructions at trial.

As briefly noted above, in order for other crimes evidence to, be admitted under La.Code Evid. art. 404(B)(1), one of the factors in the article must be at issue, have some relevance, or be an element of the crime charged. State v. Jackson, 93-424 (La.10/18/93), 625 So.2d 146. Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. La.Code Evid. art. 403. However, as noted by the fifth circuit:

Evidence of other crimes or bad acts is prejudicial since all evidence which tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507. However, the underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. Id.
The defendant bears the burden to show that he was unfairly prejudiced by the admission of the other crimes evidence. [State v.] Dauzart, 02-1187 at 9, [ (La.App. 5 Cir. 10/27/09)] 844 So.2d [159] at 165-66. Absent an abuse of discretion, a trial court’s ruling on the admissibility of this evidence will not be disturbed. State v. Merritt, 04-204, p. 11 (La.App. 5 Cir. 6/29/04), 877 So.2d. 1079, 1085, unit denied, 04-1849 (La.11/24/04), 888 So.2d 228.

State v. Davis, 12-512, p. 20 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, 80, writ denied, 13-1205 (La.11/22/13), 126 So.3d 479.

We agree with the trial court that there is a real and genuine contested issue of intent at trial. Defendant has been accused of killing his first wife in 1962. He contended that his wife’s death was accidental. The State argued that the evidence of the two women’s disappearances was sufficiently probative to rebut Defendant’s claim that he did not intentionally kill Mary Vail but that her death was accidental.

|1fiWe acknowledge that there is very little in Louisiana jurisprudence that discusses “doctrine of chance,” other than Monroe, 364 So.2d 570, which offers little guidance. In State v. Galliano, 02-2849 (La.1/10/03), 839 So.2d 932, the defendant was convicted of cruelty to a juvenile for inflicting an injury similar to shaken baby syndrome on a two year old. He appealed the conviction, alleging that it was error for the state to introduce evidence that the child’s leg was broken a few months prior to the current incident when the defendant took him out of a child car seat. He argued that incident was accidental and served only to prejudice the jury against him. The supreme court held:

The district court properly invoked the exception in LSA-C.E. 404(B)(1) and allowed the introduction of the other acts evidence to negate defendant’s claims of accident, mistake and lack of intent. The evidence of the prior incident in which the victim sustained a broken femur when defendant pulled him forcefully from his car seat has probative value to show the improbability that the defendant acted without the requisite intent, or accidentally, when he, according to his own admission, shook the victim in the instant situation “to get his attention.” See, State v. Monroe, 364 So.2d 570 (La.1980) (under doctrine of chances, likelihood that defendant was required to kill twice in self defense on successive nights at the same location was so remote that evidence of the other killing was admissible to negate self defense and lack of intent). Under the particular circumstances of this case, although evidence of the prior incident is clearly prejudicial, we cannot say that it is so inflammatory as to create an unacceptable risk of luring jurors “into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997). The court of appeal erred in holding to the contrary.

Id. at 934.

While not binding on this court, a Michigan Supreme Court case, People v. Mardlin, 487 Mich. 609, 790 N.W.2d 607 (2010), discussed the “doctrine of chances” at length. In Mardlin, the defendant was convicted of arson of a dwelling house and burning insured property. On appeal, he argued that his home | ^accidentally burned down; therefore, it was error to allow evidence admitted at trial of four previous home or vehicle fires, which occurred over the past twelve years and also involved insurance claims. The appellate court had concluded that the evidence was irrelevant, inadmissible, and improperly prejudicial. However, the Michigan Supreme Court examined the evidence in light of the “doctrine of chances.” It explained:

The doctrine of chances — also known as the “doctrine of objective improbability” — is a “‘theory of logical relevance [that] does not depend on a character inference.’ ” Under this theory, as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes. The doctrine is commonly discussed in cases addressing MRE 404(B) because the doctrine describes a logical link, based on objective probabilities, between evidence of past acts or incidents that may be connected with a defendant and proper, noncharacter inferences that may be drawn from these events on the basis of their frequency. If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbably that such events occur so often in relation to the same person due to mere happenstance.

Id. at 612-13, 790 N.W.2d 607 (footnote omitted).

In Mardlin, the Michigan Supreme Court held that the appellate court “erred by incorrectly assuming that evidence of the past fires could only be admitted if the prosecutor proved that defendant intentionally set them or that they shared other special qualities or additional significant indices of similarity.” Id. at 614, 790 N.W.2d 607. The court noted that the appellate court’s blanket conclusion that a key factor of the doctrine of chance was that the past incidents must be similar to the charged offense was incorrect. The Michigan Supreme Court went on to state:

To the contrary, application of the doctrine of chances “varies with the issue for which it is offered.” As with all arguments' involving prior acts or events, the “method of analysis to be employed |isdepends on the purpose of the offer and its logical relevance.” The acts or events need not bear striking similarity to the offense charged if the theory of relevance does not itself center on similarity.

Id. at 614-15, 790 N.W.2d 607(footnote omitted).

In the current case, the events the State desires to introduce need not “bear striking similarity” to the charge of second degree murder of Defendant’s wife. Id. at 614-15, 790 N.W.2d 607. In this case, the relevance does not center on similarity of the act but on the results. Defendant’s first wife is dead. Two other significant women in Defendant’s life, Ms. Hensley and Ms. Carver-Vail, have not being seen in forty-one and thirty years, respectively. In all three incidences, Defendant allegedly was the last person to ever, see them alive. Defendant’s explanation that the latter two women desired to be rid of their domineering mothers to show that he had not motive to kill them, does not pertain to the admissibility analysis in this case.

Defendant further argues that the trial court erred when it by passed the “doctrine of chances” requirement that the bad acts evidence take place within a limited period of time by taking “the extraordinary step of presuming the murders took years of planning, scheming, and nurturing to execute when there is no evidence the women were even murdered is painfully simple.” While the trial court’s handling of the matter of remoteness between the death of Defendant’s first wife and the subsequent disappearance of the two women was less than ideal, the length of time between the acts and the crime Defendant is being charged with should affect the weight of the evidence but not its admissibility. In State v. Crawford, 95-1352, p. 19 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, 208-09, writ denied, 96-1126 (La.10/4/96), 679 So.2d 1379, quoting State v. Jackson, 625 So.2d 146, 151 (La.1993), the third circuit explained:

|19We find that the time between the other crimes evidence and the offense charged is but one factor to be considered when balancing probative value, prejudicial effect and relevancy. Length of time between the offenses should not exclude otherwise admissible evidence unless the lapse strips the testimony of probative value. While there must be some connexity between the crime charged and the other acts or crimes, the mere passage of time will not necessarily defeat admissibility. However, such a determination must be made on a case by case basis taking into account the peculiar facts of every individual case with much discretion given to the trial judge. State v. Cupit, [189 La. 509, 179 So. 837 (1938)] supra; State v. Driggers, supra [554 So.2d 720 (La.App. 2 Cir.1989) ].

As for Defendant’s assertion that he is being prejudiced by the presumption that Ms. Hensley and Ms. Carver-Vail are dead, in brief, the State cites La.Civ.Code ,art. 30 which provides that “[w]hen a person has disappeared under circumstances such that his death seems certain, his death is considered to have been established even though his body has not.been found” and La.Civ.Code art. 54, which establishes that a person who has been absent for five years may be presumed and declared dead upon petition to the court by an interested party. The State argues:

In Jones v. State, through the Department of Health & Hospitals, 95-1130 (La.App. 3 Cir. 3/27/96), 671 So.2d 1074, the Third Circuit Court of Appeal applied the presumption of death in LSA-C.C. Art. SO in a case much like this one, where “the circumstantial evidence presented negates any reasonable hypothesis” that Sharon Hensley and Annette [Carter] Vail are alive. Jones, 671 So.2d at 1078. Moreover, while admittedly rare, this is not the first Louisiana “no body” case. In State v. Dorsey, 34,977 (La-App. 2 Cir. 9/26/01), 796 So.2d 135, a defendant was convicted of second degree murder even where no body was found. Here, the State does not seek the [sic] convict the defendant of murder based on such evidence, but instead wants to admit other crimes evidence regarding two women married or dating this defendant who logically can only be considered dead.

We find that the lack of direct evidence that Defendant disposed of Ms. Hensley and Ms. Carver-Vail does not preclude or weigh against admission. To the contrary, Defendant’s apparent lack of direct culpability weighs in favor of | ¡^admission because it minimizes impermissible negative inferences about his character. In this case, as noted above in Mardlin, 790 N.W.2d at 619, “the evidence does not create the traditional intermediate inference about character or criminal propensities associated with established, past criminal acts or convictions.” The burden is on the State to prove by clear and convincing evidence that there were other criminal acts performed by Defendant in this ease that bear upon determination of the crime charged. While the evidence is prejudicial, this court concludes that there is little danger of unfair prejudice, confusion of the issue, or misleading of the jury.

Accordingly, we find that the trial court did not abuse its vast discretion when it ruled that the State would be permitted to introduce evidence of the disappearances of Ms. Hensley and Ms. Carver-Vail.

DISPOSITION:

We find no error in the trial court’s March 19, 2014, ruling permitting the State to introduce evidence of the disappearances of Annette Carver-Vail and Sharon Hensley.

WRIT DENIED.