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1/29/01

SUPREME COURT OF LOUISIANA
No. 00-KK-0850 STATE OF LOUISIANA v. SIDNEY COTTON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF WASHINGTON
KIMBALL, J. In this prosecution for molestation of a juvenile and oral sexual battery, the State seeks to introduce evidence of the defendant's prior acquittals in an earlier prosecution involving different alleged victims. Following an evidentiary hearing, the trial court denied the State's motion to introduce the evidence of the prior acquittals. The first circuit denied the State's application for writs. State v. Cotton, 99-1684 (La.App. 1 Cir. 2/25/00). We granted writs to address, as a matter of first impression, the admissibility of a defendant's prior acquittals as other crimes evidence in a subsequent criminal trial. State v. Cotton, 00-850 (La. 6/23/00), 765 So.2d 345. We now find that, while double jeopardy does not bar the use of the prior acquittals as other crimes evidence under LA. CODE EVID. art. 404(B), the record in this case contains no indication of the probative value of the evidence sought to be introduced. The State has therefore not satisfied its burden of proof under Article 404(B), and we cannot say that the trial court abused its discretion in refusing to admit the other crimes evidence. The judgment of the trial court is therefore affirmed. FACTUAL AND PROCEDURAL BACKGROUND On December 1, 1995, defendant, Sidney Cotton, was charged by bill information with violations of LA. R.S. 14:81.2, molestation of a juvenile,1 and LA. R.S. 14:43.3, oral sexual battery.2 The bill of

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LA. R.S. 14:81.2(A) provides as follows: Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age

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information asserts that the offenses were committed between January 1, 1995 and June 1, 1995, when the alleged victim was seven years old. Prior to the filing of charges in the current proceeding, Cotton had been charged with performing oral sex upon his son and his niece, both juveniles, in 1992. Following a trial in the Twenty-Second Judicial District, Parish of St. Tammany, Cotton was acquitted of these charges. See Docket No. 221, 431. On October 29, 1996, the State filed notice of its intent to introduce in the current case evidence of Cotton's prior acquittals. The State offered this evidence "for the purposes of showing absence of mistake, preparation, and intent on part of and identity of the defendant as detailed in Louisiana Code of Evidence Article 404 B and jurisprudentialy [sic] as detailed in State v. Prieur and its progeny." In its brief to the trial court, the State argued that the mere fact that Cotton had been acquitted did not preclude the admission of evidence relating to those charges, citing, inter alia, Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed. 2d 708 (1990). While the State's memorandum reveals little of the facts underlying the instant charges, the State also urged that the current charges related to conduct similar to that at issue in Cotton's prior trial and that the probative value of this evidence outweighed its prejudicial effect. In his opposition, defendant argued that Dowling, which dealt with federal law, was inapposite due to the broader double jeopardy protections provided by the Louisiana Constitution. At a hearing on February 24, 1997, the trial court denied the State's request to introduce the prior acquittals. In reaching its decision, the trial court relied primarily on our decision in State v. Miller, 571 So.2d 603 (La. 1990). Particularly, the trial court focused on our statement recognizing "the particular significance the law attaches to an acquittal." Miller, 571 So.2d at 609 (citing United States v.

shall not be a defense. 2. LA. R.S. 14:43.3(A) provides as follows: Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, when the offender either compels the other person to submit by placing the person in fear of bodily harm, or when the other person has not yet attained fifteen years of age and is at least three years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or (2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

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DiFrancesco, 449 U.S 117, 129, 101 S.Ct. 426, 433, 66 L.Ed. 2d 328 (1980)). The State then applied for writs to the first circuit; that court granted the State's application. State v. Cotton, 97-0632 (La.App. 1 Cir. 11/07/97), 703 So.2d 114. The court of appeal found that Dowling did not preclude the admission of prior bad acts evidence simply because the defendant had been acquitted of those acts. The court also distinguished Miller on the grounds that that case, unlike the instant matter, involved two prosecutions arising out of the same operative facts. The court of appeal remanded the case to the trial court, ordering it to conduct an evidentiary hearing on Cotton's prior acquittals to determine whether the probative value of such evidence was outweighed by its prejudicial effect. Id. at 117. The trial court held the evidentiary hearing on July 31, 1998. At that hearing, the State offered into evidence transcripts of the trial testimony of the alleged victims in Cotton's prior trial, as well as transcripts of recorded statements given by those witnesses to the police. The State offered to stipulate that, were the two victims called to testify against defendant in the current proceedings, they would testify in conformity with their prior trial testimony and recorded statements. The defendant, while not agreeing that such testimony would be truthful or accurate, accepted the State's stipulation. Following that hearing, the trial court again denied the State's motion to introduce the prior acquittals, finding as follows: After close examination of the two statements of the alleged victims of the defendant's prior bad acts, and considering that this evidence may well parallel the evidence to be presented in the prosecution of the instant case, The Court finds that the prior testimony is highly prejudicial and inflammatory. Following the evidentiary hearing, the State again applied for writs to the court of appeal. The first circuit denied the State's application for writs "on the showing made," stating as follows: It is possible the district court had other evidence or information concerning the facts of the instant offense, possibly including testimony from an earlier hearing, from which it could determine if the other crimes evidence actually serves the purpose for which it is offered and from which it could balance the probative value of the other crimes evidence with the danger of unfair prejudice. However, such evidence is not before this court. At the evidentiary hearing, the state failed to present any evidence regarding possible similarities or a relationship between the instant offenses and the other crimes evidence, and the state did not include in this writ application any relevant portions of the record (containing the facts of the instant offense) which the district court might have considered when it issued its ruling.

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We granted writs, State v. Cotton, 00-850 (La. 6/23/00), 765 So.2d 345, to address, as a matter of first impression, the admissibility in a subsequent criminal trial of a defendant's prior acquittals as other crimes evidence under LA. CODE EVID. art. 404(B). DISCUSSION The State argues that the acquittals should be admissible as other crimes evidence since an acquittal does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof under Dowling v. United States, 110 S.Ct. 668, 493 U.S. 342, 107 L.Ed. 2d 708 (1990). Furthermore, the State argues that the trial court was wrong to conclude that the prejudicial effect of the prior acquittal evidence outweighed the probative value of that evidence. In response, defendant argues that introduction of the other crimes evidence would force him to relitigate charges of which he has previously been acquitted, thereby raising double jeopardy concerns. Additionally, defendant argues the State has not satisfied the requirements of LA. CODE EVID. art. 404(B) for the introduction of evidence of other crimes and, even if it could, the probative value of that evidence would be substantially outweighed by the danger of unfair prejudice. Both the United States and the Louisiana Constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. CONST. amend. V; LA. CONST. art. 1,

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