STATE OF LOUISIANA NO. 24-K-398 VERSUS FIFTH CIRCUIT ROBERTO LOPEZ COURT OF APPEAL STATE OF LOUISIANA

August 26, 2024 Linda Wiseman First 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 E. ADRIAN ADAMS, DIVISION "G", NUMBER 21-5762

Panel composed of Judges Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED; RULING VACATED Relator, the State of Louisiana, seeks review of the 24th Judicial District Court’s August 26, 2024 ruling denying its Motion in Limine to exclude the presentation of evidence of a subsequent accusation made by the victim that another adult male in another jurisdiction committed crimes against the victim involving inappropriate sexual conduct.

As a general rule, a party may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E. art. 607(C). In cases involving sexually assaultive behavior, however, La. C.E. art. 412 bars the introduction of evidence of the victim's past sexual behavior, except under limited circumstances as set forth in the Article. Nevertheless, the Louisiana Supreme Court has held that Article 412 is “inapplicable in sexual assault cases where defendant seeks to question witnesses regarding the victim's prior false allegations concerning sexual behavior for impeachment purposes.”

State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 203.

In considering a motion in limine seeking to admit or exclude such evidence, the trial judge must evaluate the evidence presented to “determine whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made prior false accusations.” Id. The Smith holding contemplates an evidentiary hearing, at which the defendant introduces evidence to the trial court for a determination as to whether that evidence may be admitted or excluded under the applicable evidentiary rules.

State v. Eisert, 16-338 (La. App. 5 Cir. 6/14/16), 252 So.3d 987, 989, writ denied, 16-1134 (La. 6/17/16), 192 So.3d 764.

On the showing made, the writ application is granted. A review of the court record reflects that an evidentiary hearing did not occur. Pursuant to Smith, supra, the defendant is required to introduce evidence for the trial court to consider when determining “whether reasonable jurors could find...that the victim had made prior false accusations” before ruling on its admissibility. See Eisert, supra. Accordingly, the district court’s ruling is vacated and the matter is remanded for an evidentiary hearing.

Gretna, Louisiana, this 26th day of August, 2024.

MEJ SUS TSM SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 08/26/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-K-398 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Anna L. Friedberg (Respondent) Thomas J. Butler (Relator) Mark D. Plaisance (Respondent) Darren A. Allemand (Relator) MAILED Remy V. Starns (Respondent) Marcus J. Plaisance (Respondent) Honorable Paul D. Connick, Jr. (Relator) Attorney at Law Attorney at Law District Attorney Main Street Post Office Box 1123 Twenty-Fourth Judicial District Suite 700 Prairieville, LA 70769 200 Derbigny Street Baton Rouge, LA 70825 Gretna, LA 70053