State v. Jackson

625 So. 2d 146, 1993 WL 427301
Supreme Court of Louisiana·Decided October 18, 1993·No. 93-KK-0424·Published·Cited by 211 cases

Opinion

625 So.2d 146 (1993)

STATE of Louisiana
v.
Gilbert JACKSON.

No. 93-KK-0424.

Supreme Court of Louisiana.

October 18, 1993.

*147 Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., and Margaret E. Lagattuta, for applicant.

Anne T. Turissini, for respondent.

HALL, Justice.[*]

The issue in this case is whether, in the prosecution of defendant for three counts of molestation of a juvenile involving his granddaughters, the state can introduce the testimony of defendant's three adult daughters recounting similar unreported misconduct committed by defendant upon them 15 to 24 years ago. The state contends the evidence is admissible under LSA-C.E. art. 404(B)(1) to show intent, system, plan and knowledge. The trial court excluded the evidence as too remote. The court of appeal denied the state's writ application. For reasons set forth below, we reverse in part and affirm in part.

I.

The defendant, Gilbert Jackson, is charged with three counts of molestation of a juvenile in violation of LSA-R.S. 14:81.2[1]. The victims *148 are his minor granddaughters, Erika Jackson, age 10, and Chrystal Smith, age 7. Count one is based on an allegation by Erika that defendant touched her breasts and buttocks on several occasions between September 1, 1991 and November 30, 1991. Count two charges that on Christmas Eve of 1991 defendant touched Erika's breasts under her shirt and kissed her on the mouth. These incidents were reported by Erika to her mother in the spring of 1992. Count three involves allegations that between September 1, 1991 and November 30, 1991, defendant touched Chrystal Smith's breasts on several occasions.

The state filed a Notice of Intent to Use Evidence of Other Bad Acts to Show "Knowledge, System & Intent" as required by State v. Prieur, 277 So.2d 126 (La.1973). The state requested that it be allowed to introduce at trial the testimony of defendant's three adult daughters, Penny Jackson, Kim Jackson Holmes and Hope Smith, that the defendant touched their breasts and vaginal area and intimately kissed them while they were minors. The state contended that the evidence, being so similar to the present alleged offenses and occurring during the same point in time in the victims lives, would prove intent, system and knowledge. The defendant argued that the acts were dissimilar and too remote in time to have any connexity with the present charges.

A Prieur hearing was held on November 23, 1992. The three daughters testified about the incidents with their father. Kim Jackson Holmes, age 36, testified that her father used to bring her to his bedroom every Friday night until she was twelve or so. She claimed that every Friday night during that period, her father would kiss her, feel her and then "stick his penis in" her. These incidents occurred 24 years ago but, Holmes testified that she came forward only recently because of the allegations concerning her nieces. She did not tell anyone about the incidents until then for fear that it would break up her parent's marriage.

Penny Jackson, age 30, testified that her father, the defendant, would kiss her all over, hold her tight, fondle her and expose himself to her. This conduct occurred when she was between the ages of 8 and 15. She did speak to a psychiatrist about these episodes after she left home, but did not tell her mother until recently out of fear that defendant would abuse her mother. She too testified that she came forward because of the allegations by her nieces.

Finally, Hope Smith, age 34, testified. She is the mother of one of the victims, Chrystal Smith. She recounted at least two occasions when her father kissed her and touched her privates, including her breasts, when she was between the ages of 11 and 12. She recalled telling her mother about these incidents when they occurred.

The district court denied the state's request to use the evidence of prior bad acts at defendant's trial because they were too remote. The court of appeal denied the state's application for supervisory writs. Judge Ciaccio dissented noting that he "would reverse the ruling of the trial court. The evidence of prior acts is admissible. State v. Driggers, 554 So.2d 720 (La.App. 2nd Cir.1989)." We granted the state's application for writs, 616 So.2d 690 (La.1993).

II.

Generally, evidence of other acts of misconduct is not admissible; however, there are statutory and jurisprudential exceptions to this rule. One exception is when the evidence of other acts tends to prove a material issue and has independent relevance other than showing that the defendant is a man of bad character. Even if independently relevant, the probative value of such evidence must be weighed against its prejudicial effect. LSA-C.E. art. 403[2]; State v. Germain, 433 So.2d 110 (La.1983); State v. Thompson, 532 So.2d 1160 (La.1988); and State v. Silguero, 608 So.2d 627 (La.1992). Evidence of other acts is allowed to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or *149 when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." LSA-C.E. art. 404(B)(1)[3]. One of these factors must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.

The state is required to prove that the defendant committed these other acts by clear and convincing evidence. State v. Davis, 449 So.2d 466 (La.1984); LSA-C.E. art. 1103[4]. The state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. Likewise, the state must show that the evidence is neither repetitive nor cumulative, and is not being introduced to show that the defendant is of bad character. The court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court also must charge the jury at the close of the trial as to the limited purpose for the other crimes evidence and that the defendant cannot be convicted for any crime other than the one charged or any responsive offenses to it. State v. Prieur, supra.

The fact that the other acts or crimes happened some time before the offense for which the defendant is on trial is not sufficient, in and of itself, to require the exclusion of the evidence. Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility. State v. Cupit, 179 So. 837 (La.1938); State v. Bolden, 241 So.2d 490 (La.1970); State v. Howard, 520 So.2d 1150 (La.App. 3d Cir.1987), writ denied, 526 So.2d 790 (La.1988); State v. Driggers, 554 So.2d 720 (La.App. 2d Cir.1989).

In summation, for the evidence to be admissible, the state must comply with the notice requirements and limiting instructions set out in Prieur, prove with clear and convincing evidence that the other acts or crimes occurred and were committed by defendant, demonstrate that the other acts satisfy one of the requirements listed in LSA-C.E. art. 404(B)(1), and, finally, show that the probative value of the evidence outweighs its prejudicial effect.

III.

There is

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