Opinion
NO. 19-K-607
01-21-2020
STATE OF LOUISIANA v. DARRYL SMITH
Mary E. Legnon Chief Deputy Clerk IN RE STATE OF LOUISIANA APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CORNELIUS E. REGAN, DIVISION "B", NUMBER 19-203 Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
WRIT GRANTED
In this writ application, the State of Louisiana seeks review of the trial court's denial of its notice of intent to introduce evidence at trial of prior sexually assaultive behavior by defendant. For the reasons that follow, we find merit to the State's arguments and accordingly grant its writ application.
On January 10, 2019, defendant, Darryl Smith, was charged by grand jury indictment with first degree rape of a juvenile under the age of thirteen (date of birth 5/18/2012), in violation of La. R.S. 14:42. On October 21, 2019, the State filed its "Notice of State's Intent to Introduce Evidence of Similar Crimes, Wrongs, and/or Acts Involving Previously Sexually Assaultive Behavior by the Defendant Pursuant to Louisiana Code of Evidence Article 412.2, or in the Alternative, Pursuant to Louisiana Code of Evidence Article 404.B." In its notice, the State specifically sought to introduce evidence of a prior sexual battery allegedly committed by defendant against a juvenile under the age of thirteen in Orleans Parish. The State noted that both the victim in the prior incident and in the instant case were under the age of thirteen at the time of each incident and that defendant had the opportunity to abuse each victim due to his romantic relationship with close relatives of the victims. Given these similarities, the State argued that the prior sexual incident was clearly admissible pursuant to La. C.E. art. 412.2, that it was highly probative to show defendant's lustful disposition toward children under the age of thirteen, that it was also relevant and probative of the occurrence of the offense charged, and that the probative value of this prior incident outweighed any prejudicial effect.
Defendant objected to the State's notice, asserting that this prior incident should not be admitted at trial because a jury made a judicial determination, as evidenced by its not guilty verdict, that defendant did not commit the prior sexual battery.
After a hearing on November 12, 2019, the trial court denied the State's request to introduce the prior sexual incident, stating as follows:
I don't think there is anything stronger in the judicial system than a not guilty, and however the case was presented in New Orleans, the defendant in this case was found not guilty, and in that case it was a unanimous verdict as opposed to a split verdict.
That, along with Article 403, it says, '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 consideration of undue delay or wasted time.' I don't think there is anything more prejudicial than to bring up this defendant's acquittal in Orleans Parish.
The State now challenges this ruling. In its writ application, the State argues, as it did in the trial court, that the evidence of defendant's prior sexual battery that resulted in an acquittal is admissible under La. C.E. art. 412.2 because the prior act shows defendant's sexually assaultive behavior and his lustful disposition toward children, particularly children to whom he uses his romantic relationships to gain access. In reply, defendant asserts that because he was found not guilty of the allegations at issue in the prior sexual battery, such evidence cannot be used against him. Further, defendant points out that the trial court applied the balancing test required under La. C.E. art. 403 and reached a rational decision that should be given great deference.
La. C.E. art. 412.2(A) provides as follows:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children 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.
According to La. C.E. art. 403, "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." Thus, evidence of a prior sexual offense indicating that the defendant has a "lustful disposition toward children" is admissible if it is relevant and if the probative value of the evidence outweighs its prejudicial effect. State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 364, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860.
Any inculpatory evidence, however, is prejudicial to a defendant, especially when it is probative to a high degree. As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. The term "unfair prejudice," as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged. State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189, 1201, writs denied, 16-2189 (La. 9/15/17), 225 So.3d 479 and 16-2093 (1/29/18), 235 So.3d 1104.
For purposes of La. C.E. art. 412.2, it is not necessary for the defendant to have been charged, prosecuted, or convicted of the "other acts" described. State v. Klein, 18-22 (La. App. 4 Cir. 8/22/18), 252 So.3d 973, 985, writ denied, 18-1569 (La. 4/15/19), 267 So.3d 1125. In fact, in State v. Harris, 11-253 (La. App. 5 Cir. 12/28/11), 83 So.3d 269, 280, writ denied, 12-401 (La. 8/22/12), 97 So.3d 376, this Court held that evidence of a defendant's prior rape of a juvenile, of which he was acquitted, was admissible in a later prosecution for aggravated rape of a juvenile. This Court found that the evidence of the prior rape of the juvenile was not so prejudicial as to warrant exclusion from trial and that the evidence was probative in its ability to show that the defendant had a propensity to remove sleeping children from where they lay and commit forced sexual offenses by using threats, thus establishing a lustful disposition towards children. See also State v. Kiger, 13-69 (La. App. 5 Cir. 10/30/13), 128 So.3d 552.
Having thoroughly reviewed the State's writ application and exhibits attached thereto, defendant's reply brief, and the applicable jurisprudence, we find that the trial court abused its discretion in excluding evidence of defendant's prior sexual battery incident. In the present case, the evidence of the prior act was admissible pursuant to La. C.E. art. 412.2. Specifically, the evidence of the prior sexual battery was relevant and probative to show defendant's lustful disposition toward children and his propensity to use his position of trust to gain access to young girls related to his girlfriends and sexually abuse them. We also find that the probative value of the evidence outweighs any prejudicial effect.
We acknowledge the discretion afforded a trial court in determining the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) and La. C.E. art. 412.2. However, under the circumstances presented herein and for the reasons set forth in this disposition, we find an abuse of discretion. See State v. Hardy, 14-1569 (La. 11/21/14), 154 So.3d 537 (where the Louisiana Supreme Court found that the trial court abused its discretion in excluding other crimes evidence). See also State v. George, 11-325 (La. 2/23/11), 55 So.3d 788 (where the Louisiana Supreme Court found that the trial judge abused her discretion by barring introduction of the defendant's prior unadjudicated juvenile act of attempted forcible rape). --------
Based on the foregoing, we find that the trial court erred in denying the State's notice of intent to introduce the prior sexual battery. Accordingly, this writ application is granted, and the matter is remanded for further proceedings.
Gretna, Louisiana, this 21st day of January, 2020.
RAC
FHW
JGG