STATE of Louisiana
v.
Bailey MILLER, Jr.
Supreme Court of Louisiana.
*961 Marcie S. Dejean, Sean Jackson, Baton Rouge, for Applicant.
Richard P. Ieyoub, Atty. Gen., Douglas P. Moreau, Dist. Atty., Monisa L. Thompson, Jennifer L. Pate, Baton Rouge, for Respondent.
Concurring Opinion of Chief Justice Calogero October 20, 1998.
VICTORY, Justice.[*]
We granted this writ to determine whether evidence of a prurient statement made by the defendant to a young girl is admissible as an "other crime or wrong" in his trial for molestation of a juvenile where the young girl is not the victim of the crimes charged and is not related to the defendant, and where the "wrong" is less serious than the offenses charged.
FACTS AND PROCEDURAL HISTORY
Defendant is charged with two counts of molestation of a juvenile in violation of La. R.S. 14:81.2 C.[1] Specifically, the defendant is accused of molesting his two nieces while he baby-sat them at his residence between November 20, 1994 and December 25, 1994. One niece, who was 11 at the time, told her mother the defendant entered his bedroom where she was watching television, started rubbing her back, and then placed his finger in her vagina. Despite her repeated efforts to get away from him, the molestation continued for ten to fifteen minutes and ended only when the defendant's wife came home. The other niece, who was eight at the time, told her mother she was watching television when the defendant rubbed her back and her buttocks.
A bill of information was filed, and the state notified defendant it intended to introduce evidence that in May of 1996 defendant was overheard telling his neighbor's eight-year-old daughter at a barbeque that he had seen her in his bedroom naked "with her legs open and her arms open."[2] Following a hearing, the trial court ruled the evidence was admissible to show "a predisposition to molest young girls and maybe that's [the defendant's] modus operandi of getting them in there, is to start, start talking to them about it."
The defendant's request for supervisory writs from the First Circuit was denied. State v. Miller, 97-0037 (La.App. 1st Cir. 2/24/97). On June 30, 1997, this court granted the defendant's writ application and remanded the matter to the court of appeal for briefing, argument and opinion. State v. Miller, 97-0772 (La.6/30/97),
DISCUSSION
General Rules for Admissibility
Article 404(B) of the Louisiana Code of Evidence provides the basic rule regarding the use of evidence of "other crimes, wrongs or acts" at trial. It states in pertinent part:
(1) Except as provided in Article 412 [regarding a victim's past sexual behavior in sexual assault cases], 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.
Several other statutory and jurisprudential rules also play a role in determining the admissibility of such evidence. First, one of the factors listed in Article 404(B) "must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible." State v. Jackson,
Child sexual abuse cases raise special concerns for the judicial system not present in other criminal cases. Frequently, in cases involving the sexual abuse of children, the offense takes place in secret, the victim is young, vulnerable, and reluctant to testify, and there is often no physical or other evidence the abuse took place. As a result, special laws and rules have been passed to address the unique concerns presented in these types of cases.[3] In further recognition of the need to treat child sexual abuse cases specially, some jurisdictions admit evidence of uncharged misconduct to show "lustful disposition" or "depraved sexual instinct" in cases involving sex crimes against children.[4]*963 Other courts have allowed the introduction of such evidence for purposes more traditionally associated with Article 404(B), e.g., to establish a plan, motive, scheme, or design or to show intent.[5] Indeed, Fed.R.Evid. 413 was recently amended to expressly allow the admission of other offenses of sexual assault by the defendant "for its bearing on any matter to which it is relevant."[6]
Louisiana Jurisprudence
Louisiana has followed the national trend towards broader admissibility of other crimes evidence in cases involving alleged sexual abuse of minor children. Pugh, Handbook on Louisiana Evidence Law 1996, 284. This court first recognized the "lustful disposition" exception in State v. Cupit, where the defendant was charged with assault with intent to commit rape of his young niece.
In State v. Acliese, this court ruled the introduction of other acts of sexual abuse involving the same victim in order to show the defendant's lustful disposition towards that victim was permissible.
Our latest pronouncement on the issue of the admissibility of other crimes evidence in child sexual abuse cases was in the 1993 case of State v. Jackson,
After finding that molestation of a juvenile was a specific intent crime, in that the state would have to prove the defendant had the intention of arousing or gratifying the sexual desires of either himself or the victims, we noted that "where the element of intent is regarded as an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed."
After finding the evidence admissible under La. C.E. art. 404(B)(1), we next turned to the issue of whether the probative value of the other crimes evidence outweighed its prejudicial effect under La. C.E. art. 403. In response to defendant's argument that the evidence was not relevant and was too prejudicial because of the 24-year time lapse between the other crimes evidence and the instant offense, this court held that "[w]hile 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." Jackson,
Lastly, we held that the part of the daughters' testimony that involved more serious *965 criminal charges than those involved in the instant case, that the defendant had raped one daughter, had exposed himself to another, and had fondled the daughters' vaginas, were too dissimilar from the charged crimes, unduly prejudicial, and thus inadmissible.
As this court did in Jackson, courts of appeal have consistently affirmed the admission of evidence showing that a defendant had previously sexually molested a relative of the defendant[8] Furthermore, although this is the first time this court has squarely confronted the issue of whether "other crimes" evidence can be admissible where the uncharged sex acts were committed against a child who is unrelated to the defendant, courts of appeal have repeatedly ruled that such evidence is admissible under various theories on a case-by-case basis.[9]
*966 Analysis
Contrary to defendant's argument, that this case involves an "other crime, act or wrong" against a child who is unrelated to the defendant or the victim of the charged crime in the instant case does not automatically preclude its admissibility under Jackson nor does a finding the evidence is admissible require an extension of the holding in Jackson. It was very clear in Jackson we did not intend to limit our holding strictly to intrafamilial situations. In discussing whether evidence of other acts of sexual misconduct with juveniles who were not the victims of the charged crimes was admissible under La. C.E. art. 404(B)(1), this court simply held that because specific intent was an element of the crime of molestation of a juvenile, the evidence of prior acts was admissible to show defendant's "lustful disposition" and would "be useful in proving that the defendant did not act innocently, and [would] negate any defense that he acted without intent or that the acts were accidental." Jackson,
Although this court acknowledged the familial relationship between the victims of the other crimes and the defendant in discussing admissibility of the evidence under La. C.E. art. 403, a plain reading of the entirety of that discussion makes it clear this court did not intend to require that admissibility of this type of evidence be conditioned on a familial relationship between the victims and the defendant. First, in discussing the probative value/undue prejudice analysis as applied to this type of evidence, this court placed heavy reliance on State v. Driggers,
Given the foregoing, we will now consider the other crimes evidence in this case using the standards set out in Jackson. In this case, the state argues the defendant's statement to his neighbor's child that he had seen her naked in his bedroom with her arms and legs open is admissible to show his intent to molest the victim of the charged offense and to show that the molestation was not an accident. We agree. This patently prurient and highly inappropriate statement is relevant to show defendant's lustful disposition toward young girls. Similarly, in Jackson, the fact that the defendant had sexually molested his victims when they were young girls tended to show he had a lustful disposition toward young girls. That he had such lustful disposition was relevant in determining whether he had the specific intent to commit the crimes charged. Such an inference has long been permitted in child sexual abuse cases. See State v. Cupit, supra, and State v. Jackson, supra. Here, as in Jackson, in order to convict, the state has to prove the defendant acted with specific intent to arouse or gratify his own sexual desires or those of the victim. Because specific intent is an element of the crime charged and because the statement made to the unrelated victim is independently relevant to prove this intent, *967 the evidence is admissible under La. C.E. art. 404(B)(1).
The only remaining issue is whether the probative value of the evidence outweighs its prejudicial effect. La. C.E. art. 403. We find the statement made by the defendant is highly probative in that it is independently relevant in helping to prove an element of the charged crime, i.e. that the defendant did not act innocently with the two victims of the charged offenses, but acted with the specific intent to arouse or gratify the sexual desires of himself or his victims. For numerous reasons, we also find the prejudicial effect of the evidence is outweighed by its probative value. First, the statement was made after the crime for which defendant is charged occurred. Thus, the defendant will not be prejudiced by having to defend against charges from his distant past. Consequently, the concerns expressed by this court in Jackson over defendant's having to defend against charges from 15 to 24 years ago concerns which we found were ameliorated by the fact the victims were related to the defendantare not even implicated. Second, the statement is similar to the instant charge involving the 11-year-old. Each incident involves the defendant's bedroom and the defendant's apparent fixation with the vaginas of young girls. Third, the making of this statement is conduct far less serious than the crime for which defendant is charged and thus will not unduly inflame the jury.[10] This is to be contrasted with the evidence of acts more serious than the crimes charged which we held were inadmissible in Jackson because they were likely to be highly prejudicial and inflammatory.
Finally, the victim of the defendant's statement was not a stranger. The seven-yearold to whom the defendant allegedly made the sexually suggestive statement was his neighbor, and her mother was a friend of his wife. Because the defendant knows the victim and her family, he has the ability to investigate his accuser much the same as if he had made the statement to a related youngster. Weighing all the relevant factors, we find the probative value of the evidence outweighs its prejudicial effect.
CONCLUSION
The evidence in this case that the defendant told a seven-year-old neighbor he saw her naked in his bedroom with her arms and legs open is admissible under La. C.E. arts. 404(B)(1) and 403. It is independently relevant to show defendant's lustful disposition towards young girls and thus his specific intent to sexually molest his eight- and eleven-year-old nieces. The probative value of this evidence outweighs its prejudicial effect, notwithstanding the fact that the seven-year-old neighbor was not a family member of the defendant or the victim in the instant case.
DECREE
For the reasons stated herein, the judgment of the court of appeal is affirmed.
AFFIRMED.
CALOGERO, C.J., concurs and assigns reasons.
CALOGERO, Chief Justice, concurring.
The crime of molestation of a juvenile committed when the offender had supervision and control over the victim(s) is so inherently conducive to confession and avoidance defenses, in which the accused admits some or most but not all of the conduct charged against him, that his conduct on other occasions becomes peculiarly relevant to the question of whether the charged act in fact occurred. See State v. Hatcher,
NOTES
Notes
[*] Lemmon, J., not on panel. Rule IV, Part 2, § 3.
[1] La. R.S. 14:81.2 defines the crime of molestation of a juvenile as:
the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person ... by the use of influence by virtue of a position of control or supervision over the juvenile.
[2] It appears from the record the state is not seeking to imply defendant, in fact, saw the young neighbor in his room naked at some time, but rather only that the substance of the statement was a product of defendant's imagination.
[3] For example, La. R.S. 15:440.1, et seq., allows videotaped statements made by a child victim of sexual abuse to be admissible in evidence and states as the law's purpose that "[i]t is ... in the best interest of the state that children be spared from crimes of violence, and that persons who commit such crimes be prosecuted with a minimum of additional intrusion into the lives of such children." La. R.S. 15:440.1. Likewise, La. R.S. 15:283 allows a child abuse victim under the age of 14 to testify by closed circuit television outside of the courtroom so that he or she will not have to directly face the accused provided the court makes a specific finding of necessity based on certain enumerated factors. In addition, La. C.E. art. 804(B)(5) contains a special hearsay exception for child sexual assault victims which provides that a statement made by a person under the age of 12 years, if the person is unavailable as a witness, is not excluded by the hearsay rule where the statement is one of initial or otherwise trustworthy complaint of sexually assaultive behavior.
[4] D. Bryden and R. Park, "Other Crimes" Evidence in Sex offense Cases, 1994 Minn. L.Rev. 529, 557, n. 121. See, e.g., State v. Tobin,
[5] See, e.g., United States v. Hadley,
[6] This revision has been noted as making it "much easier for prosecutors in sexual offense cases to offer evidence of a defendant's prior sexual offenses solely for the purpose of demonstrating that he had a propensity or disposition to commit that sort of act." James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea,
The proposed reform is critical to the protection of the public from rapists and child molesters, and is justified by the distinctive characteristics of the cases it will affect. In child molestation cases, for example, a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendanta sexual or sadosexual interest in childrenthat simply does not exist in ordinary people. Moreover, such cases require reliance on child victims whose credibility can readily be attacked in the absence of substantial corroboration. In such cases, there is a compelling public interest in admitting all significant evidence that will illumine the credibility of the charge and any denial by the defense.
Rule 413, Historical Note.
[7] In addition to being admissible to prove intent, we also held that the evidence was admissible to show "plan" under Article 404(B)(1).
[8] See State v. Tyler,
[9] State v. Sturdivant, 27,680 (La.App. 2nd Cir.2/28/96),
[10] The "other crimes, wrongs or acts" sought to be admitted "need not be acts that violate the law. Nor need the acts constitute misconduct." John E.B. Meyers, Uncharged Misconduct Evidence in Child Abuse Litigation, 1988 Utah L.Rev. 479, 479 (1989).