STATE v. FIFE (2020)

Writ granted in part. The court of appeal correctly found that the evidence defendant possessed child pornography is relevant in this prosecution for sex offense crimes involving a victim who was under the age of seventeen at the time of the offenses because the evidence shows a lustful disposition toward children. Code of Evidence article 412.2(A) provides (with emphasis added):

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.

Because the district court found that viewing child pornography is not a crime involving sexually assaultive behavior by the viewer, the district court did not apply the balancing test provided in La.C.E. art. 403. The court of appeal erred in applying that balancing test in the first instance without first remanding the matter to the district court. Accordingly, we grant the application in part to vacate that portion of the court of appeal's ruling that found the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, and remand the matter to the district court to apply the balancing test provided in Article 403. See State v. Layton, 14-1910, p. 8 (La. 3/17/15), 168 So.3d 358, 362 (“[T]he balancing test set forth in La.Code Evid. art. 403 to insure the fundamental fairness of proceedings must still be applied as required by La.Code Evid. art. 412.2․ Because the Trial Court found the evidence of the 1997 incident inadmissible based on its interpretation of La.Code Evid. art. 412.2, it did not perform this balancing test. We leave this matter for the Trial Court's determination after remand.”).

VACATED IN PART AND REMANDED

PER CURIAM: