STATE OF LOUISIANA v. ARNOLD MAGEE (2025)

Defendant Arnold Magee was convicted by a jury of second degree murder for the death of Kawana Tibbet, his former girlfriend, and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, he raises three assignments of error concerning the sufficiency of the evidence to convict, the trial court's denial of his motion to change his plea from not guilty to not guilty and not guilty by reason of insanity, and the trial court's ruling allowing evidence of other crimes, wrongs or acts to be presented to the jury.

On appellate review, we find the evidence is sufficient to support the conviction and find no error or abuse of discretion in the trial court's rulings concerning the plea change and the other crimes evidence. Our review of the record for errors patent revealed a discrepancy between the sentencing minute entry and the sentencing transcript concerning the trial court's advisal of the time period for seeking post-conviction relief, which we correct in this opinion, as set forth below. We affirm Magee's conviction and sentence for the following reasons.

PROCEDURAL HISTORY

The killing occurred on July 2, 2020, when Magee shot Tibbet with a rifle as she was leaving the apartment they formerly shared in her car. Magee was charged with one count of second degree murder, in violation of La. R.S. 14:30.1, by bill of indictment issued on October 15, 2020. He entered a plea of not guilty on October 20, 2020.

In December 2020, a sanity commission was appointed at Magee's request to assess his competence to stand trial. On March 3, 2021, the trial court found Magee incompetent to proceed to trial, and he was remanded to a mental health facility for treatment. On July 20, 2022, the trial court found Magee competent to stand trial.

On July 25, 2022, defense counsel filed a motion for appointment of a sanity commission to assess Magee's mental competence at the time of the offense. However, due to confusion in the wording used in the order, the sanity commission again considered Magee's mental competence to proceed to trial, and the trial court found Magee competent to stand trial on December 7, 2022.

In February 2023, the trial court denied Magee's motion to suppress his statement to police and other evidence. That ruling is not at issue in this appeal.

On February 14, 2023, defense counsel filed another motion to have a sanity commission appointed to assess Magee's mental competence at the time of the offense. The trial court granted the motion and included a provision in the order directing the sanity commission to assess Magee's “comprehension in distinguishing between right and wrong.”

In October 2023, the State filed notice of its intent to introduce evidence of other crimes, wrongs, or acts by Magee (“prior acts evidence”) at trial, pursuant to La. C.E. arts. 412.4 and 404(B). This evidence included text messages between Magee and Tibbet in the weeks leading up to the shooting and evidence of a 2018 incident involving an argument between Magee and Tibbet's brother, which ended when Magee pulled out the same rifle he used when he shot Tibbet. Magee did not fire the gun during that incident, and no one was injured or arrested. After a contradictory hearing, the trial court found that the prior acts evidence was admissible at trial.

The sanity hearing concerning Magee's mental competence at the time of the offense was initially scheduled for late March 2023 but was reset several times, either at Magee's request or sua sponte by the trial court. The sanity commission's report was issued on February 4, 2024, shortly before the February 20, 2024 trial date. The sanity commission opined, to a reasonable degree of medical certainty, that Magee was legally sane at the time of the offense.

On the first day of trial, Magee moved to change his plea from not guilty to not guilty and not guilty by reason of insanity, pursuant to La. C.Cr.P. art. 561. Before the jury was selected, the court heard that motion, along with the evidence concerning the sanity commission's evaluation of Magee's mental competence at the time of the offense, and denied Magee's motion to change his plea.

Trial was held on February 20–22, 2024. Through counsel, Magee did not dispute that he shot Tibbet but maintained that he acted in self-defense when she backed up her car and tried to run over him. Alternatively, he asserted that at the time of the shooting, he was distraught over his mother's recent death and his breakup with Tibbet, and he was dealing with alcohol addiction and depression. Based on those factors, he claimed that his conduct would constitute manslaughter or negligent homicide rather than second degree murder. The jury was instructed on the elements of each of those crimes as well as the law on self-defense and returned a unanimous verdict of guilty as charged.

Magee filed a motion for post-verdict judgment of acquittal and for new trial, challenging the sufficiency of the evidence to convict, the trial court's denial of his motion for plea change, and the allowance of the prior acts evidence, among other things. On March 8, 2024, the trial court denied Magee's motion after a hearing and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This appeal followed.

FACTS

The facts surrounding the shooting are largely undisputed. The evidence presented at trial established that Magee and Tibbet were in a serious relationship for about two years before the shooting and lived together in two different apartments on Hessmer Avenue in Metairie for most of that time. The lease for the second apartment was in Tibbet's name, and she was paying the rent because she was employed and Magee was not.

A few months before the shooting, Tibbet had started seeing another man but had denied this to Magee when he asked her about it. She began slowly moving some of her personal belongings out of the apartment they shared, but she did not move out completely. Magee remained in the apartment but was gone for two weeks in June 2020, once when he entered a rehabilitation facility seeking help with his alcohol addiction and again when he received in-patient mental health treatment for depression. Magee's mother, with whom he was close, died in May 2020, about six weeks before the shooting.

Magee was released from the mental health facility on June 25, 2020, and returned to the apartment. Tibbet was no longer living there then, but some of her personal belongings were still there. Around 7:00 a.m. on July 2, 2020, she drove to the apartment to get clothes she needed for work that day and parked in the parking lot at the apartment complex. Surveillance video at the complex, along with audio and video footage from a dashboard camera in a car parked there, showed that Tibbet entered the apartment, left briefly, returned to the apartment, and left again, hurriedly, around 7:15 a.m. She got in her car and drove off. Magee exited the apartment carrying a rifle he kept in the apartment and walked toward the parking lot.

Tibbet then drove back into the parking lot at the apartment complex, apparently to retrieve her cell phone, which Magee had taken from her when she was in the apartment. She and Magee had a brief conversation outside of her car before she got back in the car and drove off again. As she was driving away, Magee, who was standing behind her car on the passenger side, walked toward her car with his rifle raised and fired a shot into the car through the passenger window, which appears from the video footage and crime scene photographs to have been rolled down at the time. The bullet broke the driver's side window of her car and damaged other objects in its path, including the outside rear view mirror on the driver's side, but it did not strike her.

After Magee fired the first shot, he pointed the gun down toward the ground and began walking toward Tibbet's car. Tibbet backed the car in Magee's direction but struck a vertical metal pole at the edge of a covered parking area in the parking lot, causing the pole to fall to the ground, and began driving forward again. Her car had visible damage to the rear bumper after she struck the pole.

While out of range of the video cameras, but still within range of the dashcam audio recorder, Magee fired the rifle a second time. The bullet struck Tibbet in her right arm and entered her chest, causing damage to her right lung. She began screaming, revved the engine of her car, and drove out of the parking lot. She apparently lost consciousness while driving and struck a vehicle that was parked across the street from where she exited. This occurred within one minute of the time the first shot was fired, according to the video footage.

The audio and video recordings of the scene were played for the jury at trial. Less than thirty seconds elapsed between the two gunshots, according to the dashcam audio, as interpreted for the jury by JPSO homicide detective Ryan Vaught, one of the investigating officers.

The video cameras captured Tibbet's car striking the metal pole in the parking lot. The video footage does not show Magee standing behind the car while it was in reverse, but Detective Vaught agreed, on cross-examination, that it appeared that Tibbet backed up the car in order to strike Magee before he fired the second shot.

When Tibbet began driving forward after striking the pole, Magee reappeared in the video a few seconds later from a position that was underneath the overhang of the covered parking area, which was in a blind spot for the video cameras, according to Detective Vaught. When Magee reappeared on camera, he was standing to the side of where Tibbet's car had been when she struck the pole rather than behind the car. The video footage shows, and Detective Vaught testified, that Magee walked normally and did not appear to be injured when he reappeared on camera within seconds after Tibbet's car struck the pole.

Within a few minutes after the second shot was fired, Magee put the rifle inside his pants leg, walked over to Tibbet's car, and saw that she had been injured. He called 911 and reported that he had shot his “old lady” in the arm because she tried to run over him. He told the 911 operator that she had hit him with her car and that he needed medical attention, but he did not appear to be injured in any of the video footage showing him walking around the apartment complex after the shooting. When questioned by the operator about his injuries, Magee told her that he suffered from seizures, had just lost his mother, and was hurt because Tibbet had left him. The operator asked if that was why he shot her, and he said it was not. He repeated that he shot her because she tried to run over him.

Before the police and emergency medical personnel arrived, Magee returned to the apartment and put the gun away. Jefferson Parish Sheriff's Office (JPSO) deputies arrived a short time later and detained Magee, who was fully cooperative. Magee told them, without being questioned, that he had shot his girlfriend because she tried to run over him, according to the trial testimony of Deputy Brandon Willis. Later that day, Magee provided a detailed statement to police about the shooting after being advised of his rights.

Tibbet was pronounced dead at the scene.

The Investigation

The investigating officers found two spent shell casings in the parking lot, which were preserved as evidence. After conducting a security sweep of the apartment, officers obtained a search warrant to search the apartment and found Magee's Bushmaster semiautomatic rifle in the bedroom closet, with the safety mechanism in position to fire, along with ammunition for the gun. Those items and some personal items belonging to Magee and Tibbet were seized from the apartment. Officers also obtained a search warrant to analyze Magee's cell phone and Tibbet's cell phone, both of which were recovered from Magee after the shooting.

Dr. Dana Troxclair, an expert in forensic pathology, performed the autopsy on Tibbet. She opined that Tibbet died from a gunshot wound to the chest and classified the death as a homicide. Dr. Troxclair found a deformed copper jacketed bullet at the base of Tibbet's neck and testified that the bullet had entered Tibbet's right arm from below, consistent with the arm having been struck while she was driving, and passed through her chest, where it broke several ribs and destroyed the upper lobe of her right lung before lodging in her neck. These internal injuries prevented Tibbet from breathing and caused her death, according to Dr. Troxclair. The bullet was preserved as evidence. Tibbet had one recent contusion on her right hand but no signs of any other injuries to her body, according to Dr. Troxclair.

Emily Terrebonne, a firearms examination expert, was employed by the JPSO at the time of the shooting. She examined the bullet recovered from Tibbet's body, the two spent shell casings recovered at the scene, the Bushmaster semiautomatic rifle seized from the apartment, which was identified by its serial number, and the magazine of ammunition for the rifle that was seized from the apartment. After examining the bullet and the rifle, she testified that the bullet that killed Tibbet was fired from that rifle.

With respect to the two spent shell casings, Ms. Terrebonne said one was a Winchester and the other was a Hornady, and the magazine for the rifle contained both types of bullets. After examining the casings and the rifle, she could not say with complete certainty that the two casings were fired from the rifle, but she considered it likely that they were.

Detective Scott Bradley, the lead homicide detective on the case, conducted a videotaped interview of Magee at the JPSO Investigations Bureau on the day of the shooting. He said Magee was limping throughout the time he was there and had several abrasions on his left leg but no other visible injuries. The abrasions were on the lower part of Magee's left leg, just above the ankle, and can be seen in photographs of Magee that were taken during the interview and introduced in evidence. Detective Bradley testified that he did not know how Magee got the abrasions.

Magee's Statement

In his statement, Magee said that he did not want to kill Tibbet and he did not want to shoot her, but he “just went out.” He mentioned several recent stressful events in this life, including the loss of his mother, his having been to rehab, and the fact that Tibbet was cheating on him and ending their relationship. He said he learned that she was seeing someone else about a month ago, around the time that his mother died, but she denied it when he confronted her about it after he got out of rehab about two weeks earlier.

Magee related that he and Tibbet went to Baton Rouge together for one day after he got out of rehab, and she used the other man's credit card to pay for food on the trip. He felt that it was wrong for her to “play both sides of the field” and thought to himself, “it's gonna be me or him.” He also related that she had said she was going to come to the apartment two nights ago but did not, causing him to believe that she was playing with his feelings when he had put his all into their relationship.

Magee told Detective Bradley that when Tibbet came to the apartment on the day of the shooting, she disrespected him by talking to the other man on her phone in front of him. He said that he took the phone from her and asked the man if he was “messing with” her, and that both Tibbet and the man answered that he was. He indicated that the man told him he would “be there in five minutes.” Magee said he did not know what the man meant by that and thought that he might have a weapon on him. Magee stated that that was why he got his gun and carried it with him when he went outside.

Magee said that Tibbet left the apartment without her phone and came back to ask him for it. He said that he was about to give it to her when she pulled off, and he shot the gun in an attempt to scare her. He said the first shot broke a window in her car.

At one point during the interview, Magee appeared to state that he went inside and put the gun away after firing the first shot but went back inside to get the gun after she tried to run over him. When asked for clarification, Magee said that after he fired the first shot, he “went to put the gun up and give her the phone,” but she backed up toward him trying to run over him, hit him, and knocked a pole down. He said, “Now my leg's all messed up.”

Later in the interview, Magee stated that Tibbet “took off” after the first shot was fired, then backed up, and he “got out of the way.” He indicated that she had run over his foot and gestured to his left leg. He said he then fired the gun again but was aiming at the car, not at her, and he did not see where the second shot hit until he walked over to where her car had stopped after exiting the parking lot and saw the bullet hole in her arm. He explained that he still had the gun with him then because he “did not know where the dude was coming from,” meaning the other man.

In his call to 911 after the shooting, Magee did not mention that the other man Tibbet was seeing was on the way to the apartment at the time of the shooting or indicate that he was afraid the other man might harm him.

Tibbet's Other Relationship

The other man that Tibbet was seeing was Abdallhi Sall, who worked at a convenience store near the apartment on Hessmer Avenue.¹ Sall and Magee knew one another because Magee was a regular customer at the store, but they were not friends. Sall and Tibbet met through relatives and were friends initially, but they began dating over three months before she was killed.

Sall lived in Metairie, a mile or two away from the Hessmer apartment. He testified at trial that he and Tibbet spent the night together at his place the night before she was killed and that they had just found an apartment that they were planning to move into together.

Sall testified that Tibbet went to the Hessmer apartment the next morning to get clothes that she needed for work that day. She took longer than expected to return, and he began calling her and texting her to check on her, but she did not respond. Eventually, she answered the phone and told him that she was about to leave. Sall said he heard her arguing with Magee, who was trying to take the phone from her. Magee asked Sall whether he f***ed with her, and Sall told him yes, he did. Sall said Magee told him, “You aren't going to f*** with her anymore.” Sall told Magee to give Tibbet's phone back to her, but he did not. Sall then said that he would be there in ten minutes, and Magee hung up.

Sall headed to the Hessmer apartment on foot and ran into a cab driver he knew who gave him a ride the rest of the way. He said he told the cab driver that he was going to call the police if Tibbet's car was still there “because of the threats.” The prosecutor attempted to elicit further testimony from Sall about threats, but the trial court sustained defense counsel's hearsay objections, and Sall provided no further details about Magee's alleged threats.

By the time Sall arrived at the apartment complex, Tibbet had been shot, and the first responders were on the scene.

When pressed on cross-examination as to why he went to the apartment that day, Sall denied that he went there to confront Magee or “to add fuel to the fire.” He stated that he went there “to make sure she was okay.”

Sall acknowledged on cross-examination that he never saw Magee hit Tibbet and testified that he never saw Magee with Tibbet. In response to further questions about whether he ever saw them arguing or saw Magee hurt Tibbet, Sall repeated that he never saw the two of them together.

Tibbet's sister, Devona Tibbet, testified about Kawana's relationships with Magee and Sall. She said Kawana told her that she was “moving on” with Sall in May 2020 and told her the day before the shooting that she had found an apartment where the two of them would live together.²

Prior Acts Evidence

The State also presented to the jury evidence of certain prior acts by Magee after obtaining a pre-trial ruling, following a hearing, that the evidence was admissible at trial pursuant to La. C.E. arts. 412.4 and 404(B). Magee objected to that ruling in the trial court and challenges it on appeal. He also contends the evidence as a whole was insufficient to convict him of second degree murder. We include a summary of the allegedly inadmissible prior acts evidence here because that evidence was admitted at trial and may be considered in our review of the sufficiency of the evidence to convict. See and compare State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Tate, 22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236, 245; and State v. Mouton, 22-444 (La. App. 5 Cir. 12/29/22), 358 So.3d 106, 117 n. 3.

Text Messages

JPSO's digital forensics unit extracted digital content from Magee's and Tibbet's cell phones, including information about phone calls and text messages exchanged between them in the weeks and months leading up to the shooting.³ Detective Dustin Ducote, a member of that unit, testified as a digital forensics expert at trial and prepared a document containing extracts of certain text messages which was introduced in evidence at trial.

The text message extracts introduced by the State include messages sent on June 14–15 and June 26–July 1, 2020, with the last messages having been sent the day before the shooting. Magee also introduced extracts of those text messages and others dating back to March 2020 to provide further context about his relationship with Tibbet.

On June 15, 2020, shortly after Magee got out of rehab and after he had learned that Tibbet was seeing someone else, according to the chronology he related in his recorded statement, he sent three separate text messages to her, saying: “Stay over there.” “You don't play [with] a man's [feelings] that have love for you.” “And if I can't have you nobody will and I mean that.” Tibbet replied, “U is f***ing crazy.” Magee answered, “Come back home baby.” (Emphasis added.)

Two weeks later, on Jun 30, 2020, Magee sent several text messages to Tibbet saying that he was going to come to her job, but he would not say why. In a series of messages, he said, “I will show you.” “Call the police if you want.” “If Ever I See you riding up the street you get it.” (Emphasis added.)

In response to the message about calling the police, Tibbet replied, “Arnold u is f***ing crazy! No I'm not going to call the cops. U don't belong in jail. U need help!!!”

In other messages sent on June 30, Tibbet told Magee, “I don't want to be with u anymore. U is crazy!” “I'm coming get all my s***. And I don't want to see u.” He replied, “Okay good I'm done with it too.” He then sent a message asking her where a plug (presumably a phone charger) was, and she replied: “Stop texting me and look for one. U need to do stuff for yourself u don't have me anymore. U lost that fr fr [sic] when you tried to kill me. I'm not doing nothing else for you.” (Emphasis added.)

Still on June 30, Magee replied, “Stay where you are happy.” “I want you to have a happy life and live life and I want to live and have a happy life 2. I'm so sorry I apologize what I did.” “I was wrong.” “Because I put my heart and my feelings into this snob [sic] it's not worth it.” “Me checking you life it's not worth it.”⁴ (Emphasis added.)

Tibbet replied, “U was very wrong. I'm still shook. U really need help.” (Emphasis added.)

The next day, July 1, 2020, the day before the shooting, Tibbet sent a text message to Magee around 9:00 a.m. asking, “U wanna go to the east today??” Magee first replied, “Okay.” He then asked her, “Is you texting the wrong person.” She did not respond to his question, but she texted him back: “By toya.” He replied, “Okay.” She answered, “I might get off early.”

Magee told Detective Bradley in his recorded statement that Tibbet did not come to the apartment on July 1.

Magee's phone extraction also included Instagram messages. At 10:33 p.m. on July 1, 2020, Magee sent Tibbet a link to a video of a song called Slim Pimpin’ by rap artist Soulja Slim. The lyrics were presented to the jury. The following portion was highlighted:

Double cross me, you get cha head knocked off b***h To tha river ya go buck naked wit out no clothes Bullet lodged to ya dome, bust open a**hole Disrespect tha code get ya self f**ked over

That was Magee's last communication with Tibbet's phone.

2018 Incident

The jury also heard evidence concerning an incident that occurred in July 2018, about two years before Tibbet was killed. This incident was included in the pre-trial notice and hearing concerning the admissibility of prior acts evidence.

JPSO Sergeant Collin Murray testified that he was dispatched to an apartment at a different address on Hessmer Avenue on July 9, 2018, after a woman later identified as Kawana Tibbet called 911 to report that a man later identified as Arnold Magee had threatened her brother, Bernell Tibbet, with a gun.⁵ When Sergeant Murray and another officer arrived at the apartment, they performed a pat down search of Magee and found an AR 15 magazine with thirty live bullets in his pocket. They also found a Bushmaster AR 15-style rifle on a chair on the patio, fully loaded with a thirty-round magazine, with a bullet in the chamber and the safety mechanism in position to fire. The officers found a third thirty-round magazine underneath the rifle, for a total of ninety rounds of ammunition in the apartment.

Sergeant Murray inspected the rifle and recorded its serial number, which was the same as the serial number of the rifle Magee used when he shot Kawana Tibbet.

Sergeant Murray testified that while he was at the apartment, Magee agreed to make a statement about the incident after being advised of his rights. Magee indicated that Bernell Tibbet was staying at the apartment temporarily and that the two of them had gotten into an argument, but he did not say what the argument was about. Magee related that he asked Bernell to leave and that Bernell became angry and made a gesture that implied he was going to strike Magee. Magee did not say what the gesture was. Magee told Sergeant Murray that he then “got his AR, and that was that.” Magee stated that he was more irritable than usual at the time because he was a recovering alcoholic, and he had not had a drink that day.

Sergeant Murray testified that Bernell Tibbet was not at the apartment when the officers arrived, did not respond to their attempts to reach him, and never reported the incident to police. Magee was not arrested or charged with a crime as a result of the 2018 incident.

At the conclusion of the trial, a twelve-person jury unanimously found Magee guilty of second degree murder and rejected his claim that the killing was justified because he acted in self-defense. In his post-trial motion seeking to have the verdict set aside and on appeal, Magee has questioned the sufficiency of the State's evidence to negate his claim of self-defense. The trial court denied relief, finding that the videos, the crime scene photographs, and the trial testimony supported the jury's conclusion that Magee was not acting in self-defense when he killed Tibbet.

Magee challenges that conclusion in his first assignment of error. He asserts that he fired the first shot as a warning shot and does not claim that he felt threatened then. However, he contends that when Tibbet backed up the car toward him, he felt threatened to the point that he had to defend himself by firing the second shot.

The State maintains there was ample evidence to support the jury's conclusion that Magee shot Tibbet out of anger and vindictiveness rather than self-defense.

SUFFICIENCY OF THE EVIDENCE

In this case, Magee was charged with second degree murder for killing Tibbet with the specific intent to kill her or to inflict great bodily harm on her, in violation of La. R.S. 14:30.1(A)(1).

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Gonzales, 07-449 (La. App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-228 (La. 9/19/08), 992 So.2d 949.

The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill. Id. Whether a defendant possessed the requisite specific intent is for the trier of fact to determine, and a review of the correctness of this determination is guided by the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), discussed below. Id.

A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(1). The fact that an offender's conduct is justifiable, although otherwise criminal, constitutes a defense to prosecution for any crime based on that conduct. La. R.S. 14:18; State v. Tate, 368 So.3d at 245.

When a defendant in a homicide prosecution claims self-defense, the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. Id.

A person who is the aggressor in a conflict or who brings on a difficulty cannot claim self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know his desire is to withdraw and discontinue the conflict. La. R.S. 14:21. While there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger. Tate, 368 So.3d at 245-46.

When a homicide results from the use of force or violence, it is justified as self-defense only if the person reasonably believed he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself from that danger. State v. Guinn, 319 So.2d 407, 408-09 (La. 1975); State v. Richardson, 92-836 (La. App. 5 Cir. 12/14/94), 648 So.2d 945, 947, writ denied, 95-343 (La. 6/23/95), 656 So.2d 1011; State v. Lee, 498 So.2d 1177, 1181 (La. App. 3 Cir. 1986), writ denied, 504 So.2d 874 (La. 1987).

Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. Tate, 368 So.3d at 246.

The jury is the ultimate fact-finder in determining whether the State negated self-defense beyond a reasonable doubt. Id.

The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; Tate, 368 So.3d at 244. This standard of review applies to both direct and circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. Tate, 368 So.3d at 244-45.

When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the standard set forth in Jackson, but rather provides a helpful basis for determining the existence of reasonable doubt in cases involving circumstantial evidence. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208.

The reviewing court must defer to the trier of fact's rational credibility calls, evidence weighing, and inference drawing and may not overturn a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Monterroso, 22-390 (La. App. 5 Cir. 4/26/23), 361 So.3d 1177, 1189, writ denied, 23-745 (La. 11/21/23), 373 So.3d 447.

The reviewing court is not required to determine whether a defendant's suggested hypothesis of innocence offers an exculpatory explanation of events. Rather, the reviewing court must evaluate the evidence in the light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Dillon, 23-423 (La. App. 5 Cir. 6/5/24), 391 So.3d 82, 89, writ denied, 24-835 (La. 11/14/24), 395 So.3d 1182.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine whether the entirety of the evidence, including the allegedly inadmissible evidence which was admitted at trial, is sufficient to support the conviction. State v. Hearold, 603 So.2d at 734; Tate, 368 So.3d at 245 n. 1; Mouton, 358 So.3d at 117 n. 3. If it is not sufficient, the accused must be discharged as to that crime, and the reviewing court need not consider the alleged trial errors.⁶ If the entirety of the evidence is found to be sufficient to convict, the reviewing court must consider the alleged trial errors. Hearold, 603 So.2d at 734.

Analysis

Applying these legal principles to the evidence presented in this case, we conclude that a rational trier of fact could have found under the Jackson standard that the State carried its burden of proving beyond a reasonable doubt that Magee acted with specific intent to kill or inflict great bodily harm and that he did not act in self-defense.

The audio and video recordings introduced in evidence show, and Magee does not dispute, that he aimed his rifle, which was clearly a lethal weapon, at Tibbet's car and fired it in her direction twice, the first time as she was driving away from him and the second time after she backed up her car toward him. The first shot came close enough to where Tibbet was sitting in the car to break the driver's side window and damage the outside rear view mirror. Magee offered no explanation to the jury for the first shot other than to say that it was a warning shot and that he was trying to scare her. He has not claimed that the first shot was fired in self-defense, and there was no evidence to suggest that she had a weapon or that she had threatened to harm him. Although the first shot did not hit Tibbet, it clearly established that he was the aggressor in the conflict that resulted in her death.

Magee fired the second shot within thirty seconds of the time he fired the first shot, according to the evidence presented at trial. It was thus physically impossible for him to have gone inside, put the gun away, and retrieved it again between the two shots, as he claimed he had done at one point in his recorded statement. While he did point the gun toward the ground after he fired the first shot, he walked toward, rather than away from, Tibbet's car and carried the gun with him in the brief interval between the two shots. He did not appear to be withdrawing from the conflict or giving her any reason to believe that he wanted it to end.

The crux of Magee's self-defense claim is his contention that when Tibbet backed up the car toward him, he felt threatened to the point that he reasonably feared his life was in danger, and that is why he fired the second shot. Magee told the 911 operator and the police that he shot Tibbet because she tried to run over him with her car. He told the 911 operator that she “hit him” with her car, and he initially said in his recorded statement that she “backed up into him,” but later in the statement, he said that he “got out of the way” when she backed up toward him after he fired the first shot. The overwhelming weight of the evidence indicates that the latter statement by Magee was more credible.

Although the video footage did not show exactly where Magee was standing in relation to Tibbet's car when she first began backing up or when she struck the pole in the parking lot, it appears that he got out of the path of her car by stepping under the overhang of the covered parking area, which was in a blind spot for the video surveillance cameras. When he reappeared on camera a few seconds later, Magee was upright, walking normally, and did not appear to be injured, startled or disoriented. In other video footage taken at the apartment complex after the shooting, he also appeared to be walking normally and did not show any visible sign of injury.

Magee told the 911 operator he had been injured, but he did describe any physical injuries to her. He was limping when his videotaped interview with Detective Bradley was recorded, and he told Detective Bradley that his left leg was “all messed up” from having been struck by Tibbet's car, but the only physical injuries he reported or that the investigating officers observed when they photographed various parts of his body during the interview were several abrasions on his left leg just above his ankle. There is no indication that Magee required any medical attention for the abrasions. He did not have any other signs of injuries, bruising or swelling to his body after the shooting.

Based on all of the physical evidence, as well as Magee's own conflicting statements about whether or not Tibbet hit him with her car when she backed up toward him, the jury could have reasonably inferred that he did, indeed, get out of the way and avoid being struck.

In his videotaped statement, Magee indicated that he was scared Mr. Sall was coming and could be armed. He did not mention anything about that in his call to 911 after the shooting, and there is no indication in any of his text messages with Tibbet that he was afraid of her or of Sall.

In addition to the evidence obtained from the scene of the shooting, the jury heard evidence about Magee's communications with Tibbet after he learned that she was seeing someone else.

Approximately two weeks before the shooting, Magee told Tibbet in a text message, “And if I can't have you nobody will and I mean that.”

Two days before the shooting, Magee told Tibbet in a text message, “If ever I see you riding up the street you get it.” That same day, she sent him a text message stating that he had lost her when he tried to kill her. He apologized for what he did, saying, “I was wrong,” and “Me checking you[r] life it's not worth it.”

The phone extraction from Magee's phone revealed that the last thing he sent Tibbet, on the night before the shooting, was in an Instagram message containing a link to a video of a song with the following lyrics: “Double cross me, you get cha head knocked off b***h. To tha river ya go buck naked wit out no clothes. Bullet lodged to ya dome, bust open a**hole, disrespect tha code get ya self f**ked over.”

The jury also heard evidence that Magee brandished his rifle in another apartment he and Tibbet shared, about two years before the shooting, to settle an argument with Tibbet's brother.

Based on the evidence presented at trial, viewed in the light most favorable to the prosecution, a rational jury could have found that the State proved beyond a reasonable doubt that Magee shot Tibbet with specific intent to kill her or to inflict great bodily harm on her, and that the killing was not justified because he did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself from that danger.

The jury in this case could have rationally rejected Magee's exculpatory hypothesis of innocence and concluded that the State proved beyond a reasonable doubt that Magee did not act in self-defense when he shot Tibbet. The trial court did not err in denying Magee's post-verdict motion for a judgment of acquittal or a new trial based on the insufficiency of the evidence to convict.

MOTION TO CHANGE PLEA

In his second assignment of error, Magee contends the trial court erred in denying his motion to change his plea from not guilty to not guilty and not guilty by reason of insanity on the day of trial. He argues that he established good cause for the plea change and that his motion was not used as a dilatory tactic because it took longer than expected to obtain his medical records relating to the plea change request. The State opposed the motion, asserting that there was no new information in those records and that it would place the State at a substantial disadvantage to allow a plea change on the day of trial, more than three years after Magee's initial not guilty plea.

The trial court denied the motion after an evidentiary hearing held before the jury was empaneled. The court found that Magee had not established good cause for the plea change, as required by La. C.Cr.P. 561, because he did not present any evidence indicating that he did not know the difference between right and wrong at the time of the offense.

Magee challenged that ruling in his post-trial motion for a judgment of acquittal and for a new trial. The trial court maintained its original ruling for the reasons previously given. We find no error or abuse of discretion in the trial court's decision.

In addressing this assignment of error, it is important to distinguish between a defendant's burden of proving an insanity defense at trial and his burden of proving good cause to change his plea to “not guilty and not guilty by reason of insanity” before trial.

Insanity Defense

La. R.S. 14:14 defines the meaning of the term “insanity” within the context of a criminal proceeding:

If the circumstances indicate that because of a mental disease or defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.

In Louisiana, a defendant is presumed to be sane and responsible for his actions. La. R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, the defendant must prove the affirmative defense of insanity at the time of the offense by a preponderance of the evidence at trial. La. C.Cr.P. art. 652; State v. Devillier, 17-572 (La. App. 5 Cir. 10/17/18), 258 So.3d 230, 256, writ denied, 18-1855 (La. 10/8/19), 280 So.3d 589. This burden is not borne by proving the mere existence of a mental disease or defect. Rather, to be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he committed the conduct in question. Id.

When a defendant is tried upon a plea of “not guilty,” evidence of insanity or mental defect at the time of the offense is not admissible. La. C.Cr.P. art. 651; State v. James, 241 La. 233, 240, 128 So.2d 21, 24 (1961); State v. Williams, 11-427 (La. App. 5 Cir. 2/28/12), 88 So.3d 1102, 1110.

Insanity Plea

A defendant who desires to raise the defense of insanity may do so by entering a plea of “not guilty and not guilty by reason of insanity.” La. C.Cr.P. art. 552. When the defendant pleads not guilty initially, as Magee did, he may withdraw that plea and enter a plea of not guilty and not guilty by reason of insanity within ten days after arraignment, as provided in La. C.Cr.P. at. 561. “Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.” Id.

At the hearing on a plea change motion, the issue is not whether the defendant can prove the insanity defense by a preponderance of the evidence at trial. State v. Mercer, 564 So.2d 783, 786 (La. App. 2 Cir. 1990), cited with approval in State v. Miller, 05-1826 (La. 6/29/07), 964 So.2d 911, 922.

Defendant's evidence on a motion for a change of plea need not preponderate so as to establish the insanity defense, but must suggest some evidentiary basis for the plea. Good cause is simply an indication of some evidentiary basis for the insanity plea and is something less than a preponderance of the evidence.

Mercer, 564 So.2d at 785; Miller, 964 So.2d at 922.

The “good cause” of Article 561 is shown when the defendant produces “indicia of insanity” and shows the plea is not changed as a dilatory tactic to achieve a strategic advantage. Miller, 964 So.2d at 923; State v. Noel, 16-43 (La. 10/18/17), 236 So.3d 523, 525-26.

In determining whether good cause for a plea change has been shown under Article 561, the trial court may consider evidence of the defendant's mental state at the time of the offense as one relevant factor, but that is not the sole determinative factor. Miller, 964 So.2d at 923-24; Noel, 236 So.3d at 525. The court may also consider the defendant's documented history of mental illness and mental health treatment before and after the offense. Id. at 924.

In Miller and Noel, the Louisiana Supreme Court reversed the lower courts’ rulings denying the defendant's motion to change his plea to not guilty and not guilty by reason of insanity.⁷ In Noel, a sanity commission had opined that the defendant was sane at the time of the offense. Each defendant had an extensive documented history of mental illness and psychiatric care which included depression, attempted suicide, psychosis, and hallucinations in Miller, a capital case involving a defendant with almost lifelong mental and behavioral problems, and paranoia, grandiosity, impulsivity and hallucinations directing him to do “bad stuff” in Noel. Miller, 964 So.2d at 916-18; Noel, 236 So.3d at 524.

In Mercer, the Second Circuit Court of Appeal reversed the trial court's denial of a plea change motion by a defendant who had a history of commitments to mental hospitals, suffered from some type of “grandiose delusion,” and was found to have an anti-social personality. 564 So.2d at 786. The motion in that case was made 40 days before the trial date. In its opinion, the court mentioned other cases in which the denial of a plea change sought on the day of trial was reversed. In one case, the evidence indicated that the defendant's “borderline” mental retardation limited his ability to determine right from wrong, and he was undergoing psychiatric treatment. State v. Delpit, 341 So.2d 876, 877-78 (La. 1977). In the other case, there was evidence that the defendant in a capital case “talked to God” and the coroner who had examined him opined that he was schizophrenic. State v. Taylor, 254 La. 1051, 1055-56, 229 So.2d 95, 96-97 (La. 1970).

The court in Mercer recognized that each case in which good cause for a plea change is at issue must be decided based on its own circumstances. 564 So.2d at 787.

When the indicia of insanity at the time of the offense are less extensive than they were in Miller, Noel, and Mercer, appellate courts have upheld the trial court's denial of the defendant's plea change motion. See and compare State v. Jason, 99-2551 (La. App. 4 Cir. 12/6/00), 779 So.2d 865, writ denied, 01-37 (La. 11/9/01), 801 So.2d 357, and State v. Lee, 10-418 (La. App. 1 Cir. 9/10/10), 2010 WL 3527315 (unpublished opinion), 46 So.3d 285 (Table).

In Jason, which predates Miller, the defendant moved to change his plea on the day of trial, eleven months after his arraignment, based in part on evidence that he had reported experiencing auditory and visual hallucinations at a mental health clinic about a year before the charged offense. After reviewing the report of that visit and examining the defendant, the sanity commission members opined that he was sane at the time of the offense. One of the commission members described the defendant as a malingerer. 779 So.2d at 873. The appellate court stated that the defendant presented no evidence that he did not understand the difference between right and wrong at the time of the offense and affirmed the trial court's ruling denying the plea change. Id. at 874.

In Lee, which was decided after Miller, defense counsel waited over seven months after receiving a medical report before asserting a plea change motion three days before trial. The report indicated that the defendant had a psychotic disorder in January 2009, more than two years after the date of the offense, but the doctor opined that whatever disease or mental defect the defendant may have had did not prevent him from being able to distinguish right from wrong at the time of the offense, and the defendant presented no evidence to the contrary. 2010 WL 3527315 at *4-5. Applying the directives in Miller concerning good cause for a plea change, the appellate court upheld the trial court's determination that good cause was not shown. Id.

Evidence Presented at Hearing

At the hearing on Magee's plea change motion, the trial court heard testimony from Dr. Richard Richoux, an expert forensic psychiatrist and a member of the sanity commission that evaluated Magee's competence to stand trial on several occasions after his indictment and his sanity at the time of the offense.

Dr. Richoux and Dr. Sarah DeLand evaluated Magee's mental competence at the time of the offense in March 2023. They did not issue a report at that time, however, because defense counsel was attempting to obtain medical records of Magee's mental health treatment before the shooting for the sanity commission to review. Defense counsel told the trial court that this took longer than expected because Magee did not recall where he had been treated or who had evaluated him. This appears to be why the hearing regarding Magee's mental competence at the time of the offense was continued several times and ultimately deferred until the day of trial.

On the first day of trial, February 20, 2024, Magee moved to change his plea from not guilty to not guilty and not guilty by reason of insanity. The State opposed the motion. The sanity hearing and the hearing on the motion for plea change and other pre-trial motions were held before jury selection began.

At the hearing, Magee called Dr. Richoux as a witness, and the State introduced the sanity commission's February 4, 2024 report.⁸ In the report, Dr. Richoux and Dr. DeLand opined that Magee “should be considered to have been legally sane at the time of the alleged offense” based on their evaluation of his mental state at the time of the offense in March 2023 and their review of the police report and records of two hospitalizations of Magee for mental health care, one in Seaside in September 2018, almost two years before the shooting, and the other in Shreveport, Louisiana, from June 17–25, 2020, shortly before the July 2 shooting.

The sanity commission report states, and Dr. Richoux testified, that Magee was diagnosed with Major Depression in 2018 and with Major Depressive Disorder without Psychotic Features in June 2020. He was also diagnosed with Alcohol Use Disorder and Cannabis [marijuana] Use Disorder during both hospitalizations. The report further states that the 2018 discharge diagnoses “are not based on documentation of psychosis,” and that Magee did not report or manifest “hallucinations, paranoia, or delusions which might result in an individual being incapable of distinguishing right from wrong” during the June 2020 hospitalization.

Additionally, the sanity commission's report states that the police report of the shooting “does not describe behavior or verbalizations by Mr. Magee which would suggest psychosis or inability to understand the wrongfulness of the criminal offense with which he is charged.”

Dr. Richoux testified that Magee's chief complaint when he entered the hospital in June 2020 was daily alcohol use, and that the diagnoses from that hospitalization were consistent with prior diagnoses of his mental condition, including those made by the sanity commission in its first evaluation of Magee's competence to stand trial in December 2020 and by hospital staff during his pretrial commitment for mental health treatment in 2021–2022, after which he was found to be competent to proceed to trial.

Dr. Richoux related that Magee had told the initial sanity commission that he was experiencing suicidal ideation at the time of the shooting and indicated that it is not uncommon for someone with suicidal ideation to become homicidal.

Dr. Richoux testified that people with depression often try to self-medicate through the use of substances such as alcohol or marijuana. He said that marijuana use can exacerbate symptoms of depression and that high levels of THC in marijuana can cause some people to hallucinate or to become psychotic. He further testified, however, that there was no evidence in the records of Magee's June 2020 hospitalization or in the police report to suggest that Magee suffered from psychosis or an inability to understand right from wrong.

Dr. Richoux mentioned that Magee had reported some significant stressors in his life, including his mother's death less than two months before the shooting, the fact that his girlfriend was leaving him for another man, and the fact that he had spoken to the other man a few minutes before the shooting. Dr. Richoux testified that those events could have exacerbated Magee's major depressive disorder and caused him to experience anxiety, both of which can be psychologically disabling, and that anxiety can cause someone to overreact, but he stated that major depressive disorder does not involve the kind of thought disorder that occurs with schizophrenia and that anxiety does not involve psychosis or a loss of contact with reality.

Dr. Richoux testified that he could not opine whether major depressive disorder without psychotic features renders an individual incapable of distinguishing right from wrong. After initially stating that he could not “entirely 100 percent” rule out the possibility that Magee was deprived of his ability to distinguish right from wrong at the time of the offense, Dr. Richoux testified:

But having said that, to a reasonable degree of medical certainty, I am of the opinion Mr. Magee, at least with regard to his cognitive understanding, that it is wrong to kill someone, I don't think there is any basis for me to opine that he was devoid of that understanding.

Defense counsel asked Dr. Richoux whether that opinion would change if Magee perceived himself to be acting in self-defense at the time of the shooting based on his perception that Tibbet was about to run over him with her car. Dr. Richoux replied:

[I]f Mr. Magee had been threatened or perceived himself as threatened by another individual or combination of other individuals, I see no basis upon which to opine that his perception of the threat was the product of a mental disease or defect. I mean I already said that I think the man suffers from major depression. I've also said that I don't think his perception of reality is distorted. So, [a] person can feel that they are threatened and be inaccurate in that feeling — as a result of a mental illness or ․ just because they have assessed circumstances incorrectly. But I know of no basis for me to opine that if Mr. Magee perceived himself as acting in self-defense that that was a result of his mental illness.

Trial Court Ruling

The trial court gave oral reasons for denying Magee's motion to change his plea. The court recognized that Magee “has certain [mental health] issues” but found that he did not produce any “indicia of insanity” at the time of the offense, the prerequisite for a finding of good cause under La. C.Cr.P. 561. The court emphasized that there was no evidence from any of Magee's hospitalizations or in the police report to suggest that Magee experienced paranoia, hallucinations, or any other condition that would have deprived him of the ability to know the difference between right and wrong or to understand the consequences of his actions at the time of the shooting.

Analysis

Magee argues on appeal that he did not seek to change his plea as a delay tactic and asserts that he established good cause for the plea change by showing that he was initially found mentally incompetent to stand trial. He also claims that the trial court “erroneously limited [his] right to fully present a defense and prove that he acted in self-defense” by not allowing him to change his plea, which prevented the jury from hearing Dr. Richoux's testimony about his mental condition in support of his claim that he acted in self-defense.

While Magee was not required to prove his insanity at the time of the offense in order to show good cause to change his plea, he was required to present evidence suggesting that there was “some evidentiary basis” for asserting an insanity plea at trial. Mercer, 564 So.2d at 785; Miller, 964 So.2d at 922. Evidence of a defendant's documented mental illness and mental health treatment before and after the offense can be considered in determining whether such good cause has been shown. Miller, 964 So.2d at 923-24; Noel, 236 So.3d at 525.

Each case must be decided based on its own circumstances. Mercer, 564 So.2d at 787.

In this case, Magee's evidence of his mental illness and mental health treatment before and after the offense did not suggest an evidentiary basis for him to assert at trial that he was incapable of distinguishing between right and wrong at the time of the offense, the legal definition of “insanity” under La. R.S. 14:14. Proof of the existence of a mental disease or defect, without more, is not enough to prove insanity at the time of the offense; the mental disease or defect must be one that prevents the defendant from distinguishing between right and wrong. Devillier, 258 So.3d at 256.

Based on our interpretation of these legal principles, we conclude that the same reasoning should apply in the context of a plea change motion. Evidence suggesting that the defendant had a mental disease or defect at the time of the offense is not enough; the evidence must also suggest that the mental disease or defect is one that would have prevented him from distinguishing between right and wrong.

The evidence of Magee's mental health history did not suggest that any of the mental conditions he had at the time of the offense would have prevented him from distinguishing between right and wrong.

The fact that Magee was found incompetent to stand trial initially, while admittedly part of his mental health history, does not avail Magee. A defendant's competency to stand trial addresses whether he has the capacity to understand the proceedings against him and assist in his defense. This issue is separate from the issue of insanity, which relates to a defendant's ability to distinguish right from wrong at the time of the offense. Miller, 964 So.2d at 913 n. 3. In this case, Magee did not present any evidence to suggest that his mental condition at that time he was found incompetent to stand trial was one that would have prevented him from distinguishing right from wrong at the time of the offense.

We also find no merit in Magee's contention that the trial court's denial of the plea change impaired his right to present evidence to the jury that he acted in self-defense. Dr. Richoux's testimony on that issue at the plea change hearing was not helpful to Magee. The doctor acknowledged that Magee may have been suffering from anxiety at the time of the shooting and that anxiety can cause someone to overreact, but he said that anxiety does not involve psychosis or a loss of contact with reality. He further opined that any misperception on Magee's part as to whether his life was threatened when Tibbet backed up the car toward him was not the product of any mental disease or defect. Additionally, the jury heard Magee say in his recorded statement that he got out of the way of Tibbet's car when she was backing up toward him. The jury also heard evidence about Magee's depression, alcohol addiction, and the emotional stressors in his life around the time of the shooting from sources other than Dr. Richoux.

Because we find that Magee did not meet his burden of proving good cause for the plea change, we need not address whether the plea change motion raised on the day of trial was a delay tactic to achieve a strategic advantage at trial.

PRIOR ACTS EVIDENCE

In his final assignment of error, Magee contends the trial court erred in allowing the State to introduce evidence of two categories of prior acts: the text messages between Magee and Tibbet dating back to June 14, 2020, and Sergeant Murray's testimony about the 2018 incident involving an argument between Magee and Kawana Tibbet's brother. Magee contends this evidence does not meet the legal requirements for admissibility of prior acts evidence and that its probative value was outweighed by its prejudicial effect. The State contends the evidence was properly admitted.

Applicable Law

The State sought to introduce the prior acts evidence on the basis of La. C.E. art. 404(B)(1), which contains the general provisions on the admissibility of prior acts evidence, and La. C.E. art. 412.4, which permits the introduction of evidence of certain prior acts in domestic abuse cases.

Article 404(B)(1) provides in pertinent part:

[E]vidence 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, ․ or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. art. 412.4(A) states in part:

When an accused is charged with a crime involving abusive behavior against a family member, household member, or dating partner ․, evidence of the accused's commission of another crime, wrong, or act involving assaultive behavior against a family member, household member, or dating partner ․ may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in Article 403.

La. C.E. art. 403 states: “Although 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.”

Trial Court Ruling

The trial court found that Kawana Tibbet fit the definition of a “dating partner,” and her killing fit the definition of “abusive behavior,” as those terms are defined in Article 412.4(D). The article does not define the term “assaultive behavior,” which is used to describe the type of prior conduct that is covered by the article.

The trial court found that the prior acts evidence the State sought to introduce at trial was admissible under Articles 404(B)(1) and 412.4 but did not indicate whether some of the evidence was admissible under one article but not the other. The court further found that all of the prior acts evidence was relevant and that its relevance outweighed any prejudice to Magee.

Magee challenged the trial court's ruling in his post-trial motion for a judgment of acquittal and for a new trial. The trial court maintained its original ruling for the reasons previously given. We find no error or abuse of discretion in the trial court's decision.

Analysis

It appears that some, but not all, of the prior acts evidence would be admissible under Article 412.4. However, Magee's arguments about the prior acts evidence on appeal focus on the provisions of Article 404(B)(1). We limit our discussion accordingly.

The defendant bears the burden of showing that he was prejudiced by the admission of prior acts evidence. State v. Ard, 20-221 (La. App. 5 Cir. 4/28/21), 347 So.3d 1046, 1057. Absent an abuse of discretion, the trial court's ruling will not be disturbed on appeal. Id.

We initially point out that with respect to the text messages introduced by the State, which were sent on June 14–15 and June 26–July 1, 2020, Magee introduced all of those messages in his case in chief, along with others dating back to March 2020, to provide further context for the jury about his relationship with Tibbet and to show, among other things, that she continued to express love for him after she began dating Sall and that she denied that she was seeing someone else when he brought up the subject.

Because Magee introduced in evidence the same text messages that the State introduced, Magee cannot now claim that he was prejudiced by the trial court's allowing those messages to be introduced.

Even if we were to reach the merits of the assignment of error concerning the text messages, we find no basis to disturb the trial court's ruling.

In ruling on the admissibility of prior acts evidence under Article 404(B)(1), the trial court must consider whether the evidence is being offered for a permissible purpose under the article and whether it has independent relevance aside from showing the defendant's general criminal character. State v. Taylor, 16-1124, 16-1183 (La. 12/1/16), 217 So.3d 283, 292; Tate, 368 So.3d at 247-48. Even when the evidence is offered for a permissible purpose, it is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense and its probative value is not substantially outweighed by the risk of unfair prejudice to the defendant, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403; Taylor, 217 So.3d at 292, 296.

The term “unfair prejudice” refers to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Id. at 295-96; State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076-77.

Evidence of prior acts may be admissible under Article 404(B)(1) when it is offered for the purpose of showing intent, motive, or lack of accident or mistake, negating a claim of self-defense, or placing the charged conduct in its proper context, such as by demonstrating to the jury the volatile nature of the defendant's relationship with the victim, if the trial court finds that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant or any of the other risks mentioned in Article 403, such as the risk of confusing the issues or misleading the jury. See and compare State v. Welch, 92-1866 (La. 2/22/93), 615 So.2d 300, 302-03; Taylor, 217 So.3d at 294-96; Ard, 347 So.3d at 1059; and State v. Colby, 51,907 (La. App. 2 Cir. 5/30/18), 244 So.3d 1260, 1274-76, writ denied, 18-1256 (La. 3/25/19), 267 So.3d 596.

When intent and self-defense are at issue, evidence of similar unrelated conduct is admissible to reduce the possibility that the act in question was done with innocent intent and to negate a claim of self-defense. Colby, 244 So.3d at 1274, 1276. Evidence of acts of violence against third persons is admissible when it meets the requirements of Article 404(B) and is relevant to a material fact in the case. Colby, 244 So.3d at 1275.

When the prior act involves conduct that may have constituted a crime, the fact that the defendant was not charged, prosecuted, or convicted of a crime is not a bar to the introduction of the evidence if it is otherwise deemed admissible under Article 404(B) and/or Article 412.4. State v. Breaux, 22-581 (La. App. 5 Cir. 5/10/23), 366 So.3d 727, 736; Ard, 347 So.3d at 1054, 1059.

In this case, the trial court found that the prior acts evidence, including the text messages and the evidence of the 2018 incident, was offered for a permissible purpose, was independently relevant to material issues or defenses in the case, and that its probative value outweighed any danger of unfair prejudice to Magee. The court instructed the jury on the limited purpose for which the evidence of prior acts could be considered.

The text messages were clearly relevant to the issues of Magee's intent, motive, lack of accident or mistake, and self-defense claim, and to place the charged conduct in its proper context by demonstrating to the jury the volatile nature of his relationship with Tibbet, his prior threats to harm her for leaving him, and his having “tried to kill” her, in her words, for which he apologized two days before the shooting. We find no basis to disturb the trial court's conclusion that the probative value of this evidence outweighed any risk of unfair prejudice to Magee.

The evidence of the 2018 argument between Magee and Tibbet's brother was also relevant to the issues of Magee's intent and self-defense claim and to show lack of accident or mistake, in that it showed Magee's willingness to display the same weapon he later used to shoot Tibbet to settle an argument with someone he was angry with.⁹ In both instances, the gun's safety mechanism was in a position to fire, indicating that Magee could have fired the weapon with a single pull of the trigger.

Magee did not fire the gun in 2018, and he was not arrested or charged with a crime as a result of that incident. Those facts, however, do not bar the admission of evidence about the prior incident. Breaux, 366 So.3d at 736. Nor does the fact that it occurred two years before the shooting. Remoteness in time from the charged incident is one factor to be considered in weighing the probative value of the evidence against its prejudicial effect, but a lapse in time will generally go to the weight of the evidence rather than its admissibility. State v. Jackson, 625 So.2d 146, 149, 151 (La. 1993).

In his appellate brief, Magee maintains that much of the evidence about the 2018 incident was hearsay. He did not object to it on that basis at trial. We do not consider arguments raised for the first time on appeal that were not raised or addressed in the trial court. La. C.Cr.P. art. 841(A); State v. Bell, 23-85 (La. App. 5 Cir. 10/31/23), 374 So.2d 986, 997.

Even if we were to find that some or all of the prior acts evidence was inadmissible, which we do not, we find that any such error would be harmless.

The erroneous admission of prior acts evidence is subject to a harmless error analysis on appeal. Ard, 347 So.3d at 1059; Tate, 368 So.3d at 248. An error is harmless when the verdict is “surely unattributable to the error.” Ard, 347 So.3d at 1059. The issue is not whether a guilty verdict would surely have been rendered without the error, but whether the guilty verdict actually rendered was surely unattributable to the error. Tate, 368 So.3d at 248.

In this case, although the prior acts evidence provided additional support for the jury's conclusions that Magee acted with specific intent and did not act in self-defense, there was ample other evidence to support those conclusions, including the audio and video footage, other evidence obtained from the crime scene, and Magee's statement to police. The jury was instructed on the limited purpose for which the prior acts evidence could be considered. Under these circumstances, we conclude that the verdict was surely unattributable to the admission of the prior acts evidence and that any error in the trial court's ruling was harmless.

ERROR PATENT

In our review of the record for errors patent under La. C.Cr.P. art 920(2), we note one such error, which we correct in this opinion.

La. C.Cr.P. art. 930.8 provides that a defendant shall have two years after the judgment of conviction and sentence has become final to seek post-conviction relief. Ard, 347 So.3d at 1060. The court minutes indicate that Magee was advised of the prescriptive period for seeking post-conviction relief, as set forth in Article 930.8, at sentencing. However, the sentencing transcript indicates that the judge told Magee that he had “two years from the date of conviction the sentence becomes final [sic] to seek post-conviction relief.” When there is a discrepancy between the transcript and the minutes, the transcript generally prevails. Ard, 347 So.2d at 1060.

The statement in the transcript does not accurately advise Magee of the applicable prescriptive period for seeking post-conviction relief pursuant to La. C.Cr.P. art. 930.8. When a district court provides an incomplete advisal in that respect, an appellate court may correct the error by informing the defendant of the applicable prescriptive period in its opinion. Ard, 347 So.3d at 1061; Tate, 368 So.3d at 250.

We hereby advise the defendant, Arnold Magee, that no application for post-conviction relief, including an application that seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922. Id.

CONCLUSION

Based on the foregoing reasons, we find the evidence sufficient to support Magee's conviction and life sentence for the second degree murder of Kawana Tibbet and find no error or abuse of discretion in the trial court's rulings concerning the plea change and the prior acts evidence. Accordingly, Magee's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JULY 16, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

24-KA-435

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)

JANE L. BEEBE (APPELLANT)

ANDREA F. LONG (APPELLEE)

THOMAS J. BUTLER (APPELLEE)

MAILED

HONORABLE PAUL D. CONNICK, JR.

(APPELLEE)

DISTRICT ATTORNEY

RACHEL L. AFRICK (APPELLEE)

DISTRICT ATTORNEY

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ASSISTANT DISTRICT ATTORNEYS

TWENTY-FOURTH JUDICIAL DISTRICT

200 DERBIGNY STREET

GRETNA, LA 70053

FOOTNOTES

1.   Mr. Sall's first and last names are spelled in various ways in the record.

2.   Kawana Tibbet's first name is spelled in various ways in the record.

3.   Due to some software incompatibility and other issues with Tibbet's phone, the information extracted from it was limited. The digital forensics unit obtained more extensive information from Magee's phone.

4.   During closing arguments, defense counsel told the jury that what Magee meant by this last statement was that “taking your life is not worth it.”

5.   Bernell Tibbet's first name is sometimes spelled Burnell in the record.

6.   Alternatively, the accused could be entitled to a reduction of the conviction to a judgment of guilty of a lesser and included offense. Hearold, 603 So.2d at 734 n. 3.

7.   Two plea change motions were filed in Miller, one ten months before trial and the other one month before trial. The motion in Noel was filed eleven days before trial.

8.   The sanity commission report was issued in two letters, both dated February 4, 2024, which were introduced as separate exhibits. For simplicity, we refer to the report in the singular.

9.   Magee asserts on appeal that the State failed to prove the same rifle was used in both incidents. This assertion is inaccurate. The State presented evidence that the serial number of the rifle found in the apartment in 2018 was the same as the serial number of the rifle Magee used in the shooting in 2020.

FREDERICKA HOMBERG WICKER JUDGE