STATE v. TRAHAN (2025)

The State of Louisiana seeks supervisory review of the trial court's judgment finding that evidence of other crimes of sexually assaultive behavior was inadmissible in its prosecution of Defendant, James Cody Trahan, for sex offenses involving a minor. For the reasons set forth, we grant the writ, grant the relief requested by the State, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 15, 2021, Defendant was charged by bill of information, in Docket Number 14137-21, with one count of sexual battery, in violation of La.R.S. 14:43.1(A), and one count of indecent behavior with a juvenile, in violation of La.R.S. 14:81(A). He was also charged by a second bill of information, in Docket Number 14138-21, with one count of misdemeanor sexual battery, in violation of La.R.S. 14:43.1.1. On July 5, 2023, the State filed a “Notice of Intent to Introduce Other Crimes, Wrongs, and Bad Acts under Louisiana Code of Evidence Article 412.2.” In the notice, the State set out the allegations against Defendant as follows:

The first count involves the intentional touching of the anus or genitals of the victim, a person under the age of seventeen, by the hand and/or fingers of the offender without the consent of the victim. The second count involves the offender committing lewd and lascivious acts upon the person of the victim or in the presence of the juvenile victim, with an age difference of greater than two years between them. The misdemeanor count involves the intentional touching [of] the breast and/or buttocks of the juvenile victim, under or through clothing, by the hand and/or fingers of the offender, without the consent of the victim.

The State argued that because Defendant was charged with offenses involving sexually assaultive behavior or with acts that constitute a sexual offense against a minor victim, it should be allowed to introduce at trial evidence that Defendant has committed other crimes, wrongs, or acts of sexually assaultive behavior or potential lustful disposition towards minors. La.Code Evid. art. 412.2. The State further argued that although Defendant was a juvenile when he committed the sexual acts sought to be introduced, his age had no effect on the admissibility of the evidence, and his actions supported his intent to commit the charged offense.

On October 4, 2023, Defendant filed a “Response to Notice of State's Intent to Introduce Other Crimes, Wrongs, and Bad Acts Under Louisiana Code of Evidence Article 412.2.” He argued that the evidence was inadmissible under La.Code Evid. art. 412.2 as it did not involve evidence of other crimes, wrongs, or bad acts of sexually assaultive behavior or potential lustful disposition towards children. Defendant also argued that the evidence was too dissimilar to the charged offenses, and because he was a minor at the time of the allegations, he was below the age of culpability.¹ Defendant further asserted that even if the evidence was admissible pursuant to La.Code Evid. art. 412.2, it would not be admissible under La.Code Evid. art. 403, as the evidence's probative value was substantially outweighed by the danger of unfair prejudice due to the remoteness in time and severity of the allegations.

A hearing on the matter commenced on February 7, 2024, and concluded on March 27, 2024. The State's first witness was K.S., whose date of birth was October 30, 1982.² She testified that she and Defendant were cousins and that he made her feel uncomfortable on many occasions throughout her childhood. She recalled an incident when Defendant climbed into her bed, moved her panties to the side, touched her vagina, and attempted to penetrate her with his penis. She could not remember her exact age at the time, but she knew she was in elementary school. She indicated that Defendant also touched her vagina on multiple occasions. She noted that Defendant's actions ended when she was in fourth grade after she informed her school's administration that she had been touched inappropriately, which in turn notified her parents. According to K.S., her parents thought it was best to keep this information within the family and to never discuss it again. She was forty-one years old at the time she testified; however, she did not know the age difference between herself and Defendant. However, she agreed that Defendant was twelve or twelve-and-a-half years old when the abuse ended.³

The State then called B.T., who was also Defendant's cousin and whose date of birth was September 27, 1985. She testified that when she was a child, Defendant took her to his family's barn, where he forced her to perform oral sex on him, and he performed oral sex on her. She stated that she could not stop Defendant because he was older and much stronger than her. According to B.T., Defendant was seven years older than her. She said that the acts started when she was approximately five years old and lasted until she was nine years old; and the behavior lasted for approximately four years. She noted that the incidents stopped when Defendant and his family moved away. According to B.T., they moved after Defendant was caught looking through their aunt's window while she was bathing. B.T. said that she never told anyone about the incidents until she was eighteen years old. She told her mother, but they never formally filed charges. She indicated that the experience has affected her life tremendously, and she ended up cutting herself, crying herself to sleep, and becoming addicted to drugs. She admitted that she had relapsed with respect to the drug use approximately one month before the hearing and that she was currently on medication. B.T., who was thirty-eight years old, testified that she has experienced anxiety since she was twenty-four or twenty-five years old and has been diagnosed as being bipolar and manic depressive.

On April 18, 2024, the trial court issued a written ruling, denying the admissibility of the evidence under La.Code Evid. art. 412.2. The State now seeks supervisory review of the trial court's ruling, assigning one error by the trial court. The State argues that the trial court abused its discretion by denying its right to introduce the evidence of other crimes or bad acts committed by Defendant pursuant to La.Code Evid. art. 412.2.

DISCUSSION

The State claims that the trial court abused its discretion by failing to admit the proposed evidence under La.Code Evid. art. 412.2 because the evidence establishes that Defendant has previously engaged in sexually assaultive behavior or exhibited a lustful disposition towards children. “A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion[,]” and “[t]his same standard is applied to rulings on the admission of other crimes evidence and evidence under La. C.E. art. 412.2.” State v. Wright, 11-141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.

Louisiana Code of Evidence Article 412.2(A) provides for the admission of evidence of similar crimes, wrongs, or acts in sex offense cases committed by the defendant, setting forth, in relevant part, 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.

Here, the trial court's written ruling prohibited the State from introducing evidence of other crimes or bad acts under Article 412.2, although it stated specifically that the provision may be applicable to the evidence at hand:

Defendant is charged with a crime involving sexually assaultive behavior and with acts that constitute a sex offense involving a victim who is under the age of seventeen at the time of the offense. Therefore, the Court finds that article 412.2 applies to the instant case and the evidence sought to be introduced by the State may be admissible.

Proof of Lustful Disposition

Despite concluding that the evidence may be admissible under Article 412.2, the trial court held that the evidence of Defendant's alleged sexual assaults on K.S. and B.T. was not admissible to establish his lustful disposition towards children, stating as follows:

Defendant may have been close to his teenage years at the time [of] some of the allegations, but he was still a child, and the alleged victims were also children. At the time of the allegations of the instant case, Defendant was a fully-grown adult. Therefore, the Court does not find that acts which involved an alleged child perpetrator with other children are sufficient to establish that Defendant has a lustful disposition toward children as envisioned by article 412.2.

We find that it was an abuse of discretion for the trial court to deny the admissibility of the evidence based on its proof or lack thereof as to Defendant's lustful disposition towards minors. First, the admissibility of Article 412.2 evidence is not limited to proof of lustful disposition towards minors. “The statute specifically applies in two situations: 1) when an accused is charged with a crime involving sexually assaultive behavior, or 2) when an accused is charged with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense.” Wright, 79 So.3d at 316. Here, Defendant is not only charged with sex offenses against a minor but, specifically and generally, with sexually assaultive behavior. Second, the trial court abused its discretion by finding that the evidence of other acts of sexual abuse allegedly perpetrated on K.S. and B.T. cannot be used to establish lustful disposition simply because Defendant was also a minor at the time of the alleged offenses. “In looking at admissibility of Article 412.2 evidence ․ existing Louisiana jurisprudence involves victims of the same general age and same gender.” Id.

Remoteness of Time

The trial court further addressed the arguments asserted by both the State and Defendant related to the remoteness in time and the severity of the offenses. Regarding the lapse of time between the allegations brought forth by B.T. and K.S. and those made by the victim in this case, the trial court stated the following:

“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. Evans, 19-237 (La. App. 5 Cir. 6/3/20), 298 So. 3d 394 (citing State v. Jackson, 625 So.2d 146 (La. 1993)). Here, the alleged incidents involving Defendant and B.T. and K.S. occurred around thirty (30) years ago. The Court finds that thirty (30) years is a significant span of time during which memories can become unclear or altered unintentionally. Accordingly, the Court is of the opinion that it is highly prejudicial to force Defendant to defend himself against allegations allegedly occurring that long ago, but having only recently been revealed, with little to no way to investigate same and/or collect evidence in his defense. Additionally, the allegations made by B.T. and K.S. are not highly specific, especially considering that it is difficult to ascertain the age of Defendant at the time he allegedly committed the abuse. Further compounding the issue of the passage of time is the fact that at the time she testified, B.T. had recently been suffering from mental health issues and was taking medication for same – a fact of which was not disclosed prior to her taking the stand during the hearing.

We find that the trial court abused its discretion by excluding the evidence based upon the lapse of approximately thirty years from when the incidents allegedly occurred, when Defendant and his victims were minors. In State v. Willis, 05-218, p. 23 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 383, writ denied, 06-186 (La. 6/23/06), 930 So.2d 973, a case in which the defendant argued that he was “ ‘ambushed by non-charged and acquitted conduct which dated back as far as 33 years prior to trial[,]’ ” this court discussed Article 412.2 and found such evidence to be admissible as its probative value outweighed the potential prejudicial effect thereof.

Although the trial court held that the unfair prejudice to Defendant outweighed the evidence's probative value because the alleged incidents had occurred thirty years previously, remoteness in time is not, per se, a reason to exclude such evidence. See State v. Evans, 19-237 (La.App. 5 Cir. 6/3/20), 298 So.3d 394. “Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility.” State v. Jackson, 625 So.2d 146, 149 (La.1993). “Length of time between the offenses should not exclude otherwise admissible evidence unless the lapse strips the testimony of probative value. While 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.” Id. at 151. Further, “the fact that the prior sex offenses occurred many years before trial is not significant as the legislature did not set forth a time limitation in Article 412.2.” Willis, 915 So.2d at 388.

Specificity of Evidence of Other Sexual Acts

In its ruling, the trial court further stated, “Additionally, the allegations made by B.T. and K.S. are not highly specific, especially considering that it is difficult to ascertain the age of Defendant at the time he allegedly committed the abuse.” We likewise find this to be an abuse of discretion.

B.T. testified that Defendant forced her to perform oral sex on him, that he performed oral sex on her, and that she was unable to stop him because he was seven years older and physically stronger than her. She was approximately five years old when the abuse started, and it lasted until she was nine years old. Thus, Defendant, who would have been twelve years old at the outset and sixteen years old by the time the abuse ended, was hardly a child. As an older person/older relative, albeit a minor, Defendant exercised a position of power and control over his victim, B.T. We deem this evidence extremely specific and highly probative to the issues of Defendant's propensity for sexually assaultive behavior and lustful disposition towards younger females over whom he could assert dominance.

As to the evidence concerning K.S., she testified that she knew she was in elementary school when, on one occasion, Defendant touched her vagina and attempted to penetrate her with his penis. She further testified that Defendant touched her vagina on multiple occasions up until she was in the fourth grade, wherein she would have been either nine or ten years old. Defendant was twelve or twelve-and-a-half years old when the abuse ended, placing him in a superior position to his younger cousin, K.S. Accordingly, we find that it was an abuse of discretion for the trial court to rely on the lack of clarity as to the offenses and the relative ages of Defendant and his victims in excluding the evidence.

Severity of the Evidence of Other Sex Acts Vis a Vis the Charged Offenses

Concerning the severity of the other sex acts proposed as evidence, the trial court claimed that B.T.’s and K.S.’s allegations against Defendant were far more severe than those made by the victim of the charged offenses, as their allegations involved some form of penetration, and the victim's allegations involved no penetration of any kink. To support its reasoning, the trial court relied on Jackson, 625 So.2d 146, which was decided prior to the enactment of La.Code Evid. art. 412.2. In Jackson, the defendant was charged with molestation of a juvenile after allegedly kissing his granddaughters and fondling their breasts. Thereafter, the State sought to introduce evidence of the defendant's prior sexual acts, which involved the rape of his daughter, the exposure of his penis to another daughter, and the fondling of his daughters’ vaginas. The Jackson court ultimately found that the other acts were dissimilar and more serious than the defendant's pending charges and that the recitation of those acts would only serve to inflame the jury.

As noted, Jackson was decided based on La.Code Evid. art. 404(B) evidence, as it predated Article 412.2’s enactment, which specifically allows evidence of other sexual offenses.⁴ “[T]he jurisprudence has ruled that the amendments to La. C.E. art. 412.2 have rendered the Jackson analysis outdated.” State v. Allen, 54,153, p. 10 (La.App. 2 Cir. 12/15/21), 331 So.3d 1101, 1105. Additionally, “La. C.E. art. 412.2 does not limit the admissibility of prior acts only to those identical or similar in nature.” Id. at 1106. Further, the supreme court has held the term “sexually assaultive behavior” “to be a general expression not limited by statutorily-designated offences[.]” State v. Layton, 14-1910, p. 7 (La. 3/17/15), 168 So.3d 358, 362. Accordingly, we find the trial court's reliance on Jackson to be misplaced; thus, its finding that the proposed evidence of Defendant's other sex crimes was inadmissible based on the severity of the crimes, was error.

Probative Value versus Prejudicial Effect

Louisiana Code of Evidence Article 403 provides a balancing test for determining the admissibility of a defendant's prior sexually assaultive behavior or proof of lustful disposition, as follows: “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.” Here, the trial court found, pursuant to Jackson, that the introduction of B.T. and K.S.’s testimony at trial would inflame the jury. Again, Jackson was decided based on the application of Article 404(B), not Article 412.2. However, the trial court, in finding that the State's evidence was inadmissible, concluded that “the danger of unfair prejudice to Defendant is not outweighed by the probative value of the evidence sought to be presented through the testimonies of B.T. and K.S.” Thus, we find that the trial court abused its discretion by rejecting the evidence based on its potential prejudice.

In State v. Washburn, 16-335, pp. 7-8 (La.App. 3 Cir. 11/2/16), 206 So.3d 1143, 1148–49 (alterations in original), writ denied, 16-2153 (La. 9/15/17), 225 So.3d 488, this court addressed this issue:

We further find no merit in the defendant's argument that even if the evidence had probative value, it was outweighed by its prejudicial impact, as it “portrayed [the defendant] as a bad person” and “resulted in [the defendant] being tried for rape, a crime for which he was never charged, as well as molestation.” The supreme court has explained the meaning of “prejudicial” within the context of the La.Code Evid. art. 403 balancing test as follows:

Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”).

State v. Rose, 06-402, p. 13 (La. 2/22/07), 949 So.2d 1236, 1244.

While the subject testimony obviously had the potential for a prejudicial impact, there is no indication that it was unduly and unfairly prejudicial as explained in Rose. Rather, that possibility is reflective of its probative nature. Finally, we note that a special instruction was provided to the jury as follows: “The accused is on trial only for the offense charged involving the alleged victim [S.L.S.]. You may not find him guilty because he may have committed another offense.”

In State v. Rodgers, 16-14, pp. 19-20 (La.App. 5 Cir. 10/26/16), 202 So.3d 1189, 1201–02, writ denied, 16-2189 (La. 9/15/17), 225 So.3d 479, and writ denied, 16-2093 (La. 1/29/18), 235 So.3d 1104, the fifth circuit discussed the Article 403 balancing test as it relates to Article 412.2 evidence and compared other cases, which found no prejudice in the admission of such evidence:

Even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403. Any inculpatory evidence, however, is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id.; See also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“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.”) (Footnote omitted).

In State v. Kiger, 13-69 (La.App. 5 Cir. 10/30/13), 128 So.3d 552, this Court affirmed a trial court's admission of evidence of prior sexual molestation in a prosecution for aggravated rape of an eight year old. The Court in Kiger found that the testimony of a victim of unadjudicated child molestation that occurred while the defendant was between eleven and fourteen years old and the victim was between the ages of five and eight years old was highly relevant to show the defendant's lustful disposition and that, given the victim's similarities in age, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Id. at 559. The Court reasoned that any potentially undue or unfair prejudice was mitigated by the trial court's clear jury instruction and the defendant's ability to cross-examine the victim of the prior molestation. Id.

Similarly, in State v. Harris, 11-253 (La.App. 5 Cir. 12/28/11), 83 So.3d 269, 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. The Court found that evidence of the prior rape of a juvenile was highly relevant to show the defendant's lustful disposition toward children. Id. at 280. The Court also found that the evidence was not unduly and unfairly prejudicial, because the trial court clearly instructed the jurors that they were not to find guilt in the case based on evidence of other sexual offenses, the testimony regarding other acts was not so time-consuming as to risk distracting the jury from the central issue at trial, and the evidence was presented in an orderly manner, with evidence of the prior rape being presented at the end of the trial, indicating that the jury was not misled or confused. Id.

In the instant case, the evidence of the other sexual offense was highly relevant and probative of Defendant's charges, in that it showed Defendant's lustful disposition towards children, specifically girls of a similar young age. Moreover, the evidence in the instant case was presented in a clear, orderly manner.

As in Rodgers, we find that the evidence of Defendant's prior sexually abusive behavior and potential lustful disposition is highly probative, outweighing its prejudicial effect as this is precisely the type of evidence that led to the legislature's enactment of Article 412.2. “Article 412.2 was enacted to loosen restrictions on ‘other crimes’ evidence, and to allow evidence of ‘lustful disposition’ in cases involving sexual offenses.” Wright, 79 So.3d at 317. Thus, we find that the trial court abused its discretion by excluding the highly relevant evidence of Defendant's other acts of sexually assaultive and lustful behavior that is admissible under Article 412.2, based upon a possible prejudicial effect.

DECREE

For the foregoing reasons, the State of Louisiana's writ application is granted. The ruling of the trial court, finding the evidence of Defendant's other crimes, wrongs, and bad acts against K.S. and B.T. not admissible, is reversed, and judgment is rendered, finding the evidence admissible. The matter is remanded to the trial court for further proceedings consistent herewith.

WRIT GRANTED; RELIEF GRANTED; AND REMANDED.

FOOTNOTES

1.   According to the State's bills of information, Defendant's date of birth is March 19, 1979.

2.   Initials are being used in this case to protect the identity of the victims in accordance with La.R.S. 46:1844(W)(1)(b).

3.   K.S. testified that the abuse ended when she was in the fourth grade, and Defendant was twelve to twelve-and-a-half years old. The national average age for a fourth grader is nine to ten years of age. Dr. Jody Sherman LeVos, Average Age by School Grade Level: A Guide for Parents (Aug. 27, 2024), https://www.beginlearning.com/parent-resources/what-grade-are-x-year-olds; EduWW, School Age and Grade Levels by The American School System, https://eduww.net/parent-resources/school-age-grade-levels/ (last visited Oct. 21, 2025).

4.   At the time State v. Jackson, 625 So.2d 146 (La.1993), was decided, La.Code Evid. art. 404(B)(1) provided:Except as provided in Article 412, 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, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

FITZGERALD, Judge.