STATE v. BOURQUE (2021)

Writ application denied.

For the reasons assigned by Judge McDonald in his dissent, I would grant the State's writ application and reverse the trial court's rulings, as defendant's offenses were properly joined under La. C.Cr.P. art. 493.¹ Defendant failed to carry his heavy burden of proving prejudicial joinder of offenses (including seven counts of molestation of a juvenile under the age of 13, five counts of possession of pornography involving juveniles, 15 counts of production of pornography involving juveniles and three counts of first degree rape of a juvenile under the age of 13) as grounds for a motion to sever. See State v. Dawson, 19-1612 (La. App. 1 Cir. 11/17/20), 316 So.3d 77, writ denied, 21-217 (La. 5/4/21), 315 So.3d 222. Moreover, evidence of each of the numerous offenses joined in the indictment would be admissible as other crimes evidence in severed trials to show the defendant's lustful disposition toward children. See La. C.E. art. 412.2 ² ; State v. Crochet, 05-0123 (La. 6/23/06), 931 So.2d 1083, 1087. For these reasons, I find the trial court abused its vast discretion and would therefore grant the writ, reverse its ruling, and deny defendant's Motion to Sever in its entirety.

FOOTNOTES

1.   La. C.Cr.P. art. 493 provides:Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

2.   La. C.E. art. 412.2 provides:A. 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.B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

Crichton, J., would grant and assigns reasons. Crain, J., would grant. Hughes, J., recused.