## Facts

- The State of Louisiana charged David Henry, Jr. with aggravated rape and forcible rape of R.C., the minor daughter of Henry’s girlfriend.
- R.C. lived with her mother and Henry. At Henry’s 2011 jury trial, R.C. testified that Henry raped her multiple times when she was between the ages of 12 and 14.
- The State introduced evidence that R.C. became pregnant and gave birth in 2009.
- Forensic DNA testing established to a 99.99% level of certainty that Henry was the baby’s father.
- Over defense objection, the trial court admitted evidence that in 1978—when Henry was 16—he pleaded guilty to attempted aggravated rape of his 10-year-old neighbor, offered under La. Code Evid. art. 412.2.
- During rebuttal closing argument, the prosecutor made remarks the defense characterized as improper and prejudicial; Henry moved for a mistrial, which the trial court denied.
- The jury found Henry guilty as charged of aggravated rape and forcible rape.
- The trial court sentenced Henry to life imprisonment at hard labor without benefits on the aggravated rape count and forty years at hard labor without benefits on the forcible rape count.
- Henry appealed, challenging (among other rulings) the admission of the 1978 sex-offense conviction and the denial of a mistrial based on the prosecutor’s rebuttal comments.

## Issues

1. Did the trial court err under La. C.E. art. 412.2 and La. C.E. art. 403 by admitting Henry’s 1978 attempted aggravated rape conviction, given that it was more than 30 years old and allegedly unfairly prejudicial?
2. Did the trial court err in denying a mistrial based on the prosecutor’s rebuttal closing argument, where Henry claimed the remarks were so prejudicial that he could not receive a fair trial?

## Decision

- The Louisiana Fourth Circuit affirmed Henry’s convictions and sentences.
- The court held the trial court did not abuse its discretion in admitting the 1978 attempted aggravated rape conviction under La. C.E. art. 412.2 because, after La. C.E. art. 403 balancing, the evidence’s probative value was not substantially outweighed by the risk of unfair prejudice, even though the conviction was remote in time.
- The court held the trial court did not abuse its discretion in denying Henry’s motion for mistrial; read in context and in light of the court’s instructions and the strength of the evidence, the rebuttal remarks did not make a fair trial impossible.

## Legal Principles

- La. C.E. art. 412.2 allows, in specified sexual-offense prosecutions, admission of evidence that the accused committed other sexual offenses to show a lustful disposition or propensity to commit sexual offenses.
- Evidence admitted under La. C.E. art. 412.2 remains subject to La. C.E. art. 403; the trial court must exclude the evidence only if its probative value is substantially outweighed by the danger of unfair prejudice.
- The age of a prior sex offense is a factor in the Art. 403 analysis, but remoteness alone does not require exclusion when similarity and relevance support admission and the jury receives limiting instructions.
- Appellate review of a trial court’s evidentiary rulings under Arts. 403 and 412.2 is deferential; reversal requires an abuse of discretion.
- A mistrial under La. Code Crim. Proc. art. 775 is an extreme remedy and is warranted only when prejudicial conduct makes it impossible for the defendant to obtain a fair trial, such that an admonition or instruction cannot cure the harm.
- Claims of improper argument are evaluated in context, considering the full closing arguments, the trial court’s instructions that argument is not evidence, and the overall strength of the evidence supporting the verdict.

## Conclusion

The Fourth Circuit affirmed Henry’s rape convictions and sentences, concluding that the trial court properly admitted Henry’s decades-old attempted aggravated rape conviction under La. C.E. art. 412.2 after weighing prejudice against probative value under La. C.E. art. 403, and that the prosecutor’s rebuttal remarks—considered in context and alongside the court’s instructions and strong DNA and testimonial evidence—did not require a mistrial.


State v. Henry, 102 So. 3d 1016 (2012)