APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE JOHN J. MOLAISON, JR., DIVISION
''G'', NUMBER 17-2493
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Hans J. Liljeberg
GRANTED IN PART; DENIED IN PART; REMANDED
Irwin Gomez-Colon, seeks review of the trial court's
ruling granting the State's "Notice of Intent to
Introduce Other Crimes Evidence Pursuant to L.C.E. [sic]
Articles 412.2 and 404(B)(1)." For the following
reasons, we grant in part and deny in part this writ
application, reverse that portion of the trial court's
ruling granting the State's notice of intent under La.
C.E. art. 412.2, and remand for further proceedings.
is charged with second degree murder in violation of La. R.S.
14:30.1. The State alleged that the crime occurred on or
about April 22, 2017. Second degree murder is defined as the
killing of a human being when the offender: (1) has a
specific intent to kill or to inflict great bodily harm; or
(2) is engaged in the perpetration or attempted perpetration
of one of several enumerated felonies, including, aggravated
rape, first degree rape, forcible rape, or second degree
rape, even though he has no intent to kill or to inflict
great bodily harm. La. R.S. 14:30.1. In proving the statutory
elements of the offense charged at trial, the State is also
required to prove defendant's identity as the
perpetrator. State v. Draughn, 05-1825 (La.
01/17/07), 950 So.2d 583, 593, cert. denied, 552
U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
State filed its notice of intent seeking to admit evidence of
relator's other similar wrongs, acts, or crimes involving
sexually assaultive behavior pursuant to La. C.E. art. 412.2.
The State attached three prior incidents where relator was
alleged to have committed aggravated sexual assault,
aggravated rape, and sexual battery in different
jurisdictions over a span of several years with each of the
acts occurring in the month of April. The State contended
that it will present res gestae evidence that the
defendant raped the victim in addition to murdering the
victim. The State argued that the homicide involved
"sexually assaultive behavior" under La. C.E. art.
412.2. Alternatively, the State sought admission of the
evidence under La. C.E. art. 404 B(1). In response, relator
argued that La. C.E. art. 412.2 did not apply because this
was not a sex offense case. He contended that the three prior
incidents are based on alleged sex offenses; whereas in this
case, there is no evidence that the victim was raped prior to
her death and the State did not charge him with murder during
the commission of a rape. Additionally, relator contended
that the prior incidents were not independently relevant or
admissible as modus operandi, identity, or any other
reason enumerated under La. C.E. art. 404 B. After a hearing,
the trial court granted the State's notice of intent to
introduce the three prior alleged sex offenses under La. C.E.
art. 412.2 and La. C.E. art. 404 B(1).
an abuse of discretion, a trial court's ruling on the
admissibility of evidence pursuant to La. C.E. art. 404 B(1)
will not be disturbed. State v. Le, 13-314 (La.App.
5 Cir. 12/12/13), 131 So.3d 306, 317; State v.
Merritt, 04-204 (La.App. 5 Cir. 06/29/04), 877 So.2d
1079, 1085, writ denied, 04-1849 (La. 11/24/04), 888
So.2d 228. The same abuse of discretion standard is applied
to rulings on the admission of other crimes evidence and
evidence under La. C.E. art. 412.2. State v. Wright,
11-0141 (La. 12/06/11), 79 So.3d 309, 316.
court's ruling under La. C.E. art. 412.2:
C.E. art. 412.2 provides, in pertinent part, as follows:
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. (Emphasis added.)
bill of information, the State charged relator with second
degree murder of the victim, without alleging that the crime
involved sexually assaultive behavior. Because defendant is
not "charged with a crime involving sexually
assaultive behavior," we find that the evidence is
not admissible under La. C.E. art. 412.2. Under the
circumstances of this case, the trial court abused its
discretion in granting the State's notice of intent under
La. C.E. art. 412.2. Accordingly, that portion of the trial
court's judgment granting the State's notice of
intent under La. C.E. art. 412.2 is reversed.
court's ruling under La. C.E. art. 404 B:
State sought to introduce the three prior alleged sex
offenses committed by relator. The State argued that the
victim's injuries and the evidence on the scene of the
crime were substantially similar to the injuries of the
victims in the prior sexual offenses and the evidence
collected from those scenes. The State argued that these
prior sex offenses were admissible under La. C.E. art. 404 B
for the purposes of modus operandi, intent, plan,
identity, and knowledge. The trial court found that the prior
sex offenses were admissible under La. C.E. art. 404 B for
the purposes of knowledge, intent, and system.
review of the writ application, exhibits, and trial
transcript, we find the trial court did not abuse its
discretion in finding that the three prior alleged sex
offenses are admissible under La. C.E. art. 404 B. The State
proved by a preponderance of the evidence that relator
committed the other acts. State v. Taylor, 16-1124
(La. 12/01/16), 217 So.3d 283. The similarity of victims,
method of choosing the victim, the use of strangulation, the
month the crime was perpetrated each year, and the fact that
relator left his DNA at each scene support the trial
court's ruling that the prior acts are admissible to show
identity, knowledge, modus operandi, or system under
La. C.E. art. 404 B. We further find the probative value of
the evidence outweighs its prejudicial effect. The prior bad