State of Louisiana Versus Melissa Gonzales

STATE OF LOUISIANA NO. 21-K-685

VERSUS FIFTH CIRCUIT

MELISSA GONZALES COURT OF APPEAL

STATE OF LOUISIANA

February 14, 2022

Susan Buchholz
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET,
DIVISION "H", NUMBERS 20-4606, 20-1589,20-3064

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst

WRIT GRANTED; JUDGMENT AMENDED

In this writ application, relator, the State of Louisiana, seeks review of the
trial court’s denial, in part, of its motion in limine to exclude evidence related to
allegations of the victim’s alleged sexual abuse of his minor child. For the
following reasons, we grant the writ in part and find that the trial court erred in
permitting defendant to question the victim as to whether he in fact sexually
abused his minor child. We further find the trial judge’s ruling as to the
admissibility of evidence concerning the minor child’s accusations of sexual abuse
against the victim, allegedly at the direction of defendant, is premature at this time
and we amend the judgment as to that portion of the State’s motion in limine.

On September 3, 2020, the Jefferson Parish District Attorney’s Office
charged defendant, M.G., with one count of domestic abuse battery of her husband,
W.G., with a child under thirteen years of age present in violation of La. R.S.
14:35.3 in district court case number 20-3064, and three counts of violating a
protective order in violation of La. R.S. 14:79 in district court case number 20-
4606. On February 5, 2021, the Jefferson Parish District Attorney’s Office filed a
separate bill of information charging M.G. with one count of domestic abuse
battery of W.G. in violation of La. R.S. 14:35.3 and one count of resisting an
officer in violation of La. R.S. 14:108 in district court case number 20-1589.

On August 13, 2021, the State filed a motion in limine, seeking to prohibit
defendant, M.G., from referring to any allegation of sexual abuse or misconduct by

21-K-685

the victim, W.G., upon their minor child.1 In support of its motion, the State
introduced into evidence documentation reflecting that the Department of Children
and Family Services conducted an investigation into the sexual abuse allegations
against W.G. and found no valid complaint of sexual abuse.2

In opposition to the motion, M.G. argued that prohibiting her from
questioning the victim, W.G., concerning the alleged sexual abuse violates her
constitutional right to present a defense. M.G. argued that she intends to prove that
the allegations of sexual misconduct against W.G. motivated W.G. to fabricate or
stage the events which led to the charges against her. Thus, M.G. argued that
evidence surrounding the sexual abuse allegations is permissible under La. C.E.
art. 404(B) as relevant to show W.G.’s bias, interest, or motivation to testify falsely
against her.

On August 23, 2021, the trial court conducted a hearing. Upon consideration
of the argument and evidence introduced, the trial judge denied the State’s motion
as to the sexual abuse allegations pertaining to W.G. The trial judge stated that he
would allow defendant to ask “very limited questions” about the victim’s motive
for pressing charges as follows: “did you make these charges because your
daughter reported you as sexually abusing her” and “did you sexually” abuse your
daughter? In this writ application, the State seeks review of that ruling.

Both the Sixth Amendment of the United States Constitution and Article I,
Section 16 of the Louisiana Constitution guarantee a criminal defendant the right
to present a defense. State v. Lirette, 11–1167 (La. App. 5 Cir. 6/28/12), 102 So.3d
801, 813. However, this right does not require a trial court to permit the
introduction of evidence that is inadmissible, irrelevant, or has so little probative
value that it is substantially outweighed by other legitimate considerations in the
administration of justice. Id. The trial court is accorded great discretion in
evidentiary rulings and, absent a clear abuse of that discretion, rulings on
admissibility of evidence will not be disturbed on appeal. State v. Magee, 11–0574
(La.9/28/12), 103 So.3d 285, 321.

Concerning the admissibility of prior acts or courses of conduct of a witness,
this Court has stated:

La. C.E. art. 607(D) further provides that “extrinsic evidence,
including prior inconsistent statements and evidence contradicting the
witness’ testimony, is admissible when offered solely to attack the
credibility of a witness[.]” The admissibility of extrinsic evidence to
impeach credibility of a witness however is subject to the relevancy
balancing test of La. C.E. art. 607(D)(2), which requires the court to
determine whether “the probative value of the evidence on the issue of
credibility is substantially outweighed by the risks of undue
consumption of time, confusion of the issues, or unfair prejudice.” La.
C.E. art. 607(D)(2); State v. Juniors, 03–2425 (La.6/29/05), 915 So.2d
291, 330; State v. Cousin, 96–2973 (La.4/14/98), 710 So.2d 1065,
1069–72. Therefore, although La. C.E. art. 607(D) permits a party to

1
The motion in limine further sought to prohibit defendant from referring to any allegations of sexual abuse of the
minor child by a known juvenile, B. The trial court granted that portion of the State’s motion in limine and that
ruling is not before this Court.
2
The documents introduced into evidence did however reflect a valid finding of lack of adequate supervision and
emotional maltreatment of the minor child by defendant M.G. with concerns for potential physical abuse of the
minor child by M.G.
2

attack the credibility of a witness through extrinsic evidence, this
grant is necessarily subject to the relevancy balancing test of La. C.E.
art. 607(D)(2) and further to the limitation set forth in La. C.E. art.
608(B), which provides:

Particular acts, vices, or courses of conduct of a witness may
not be inquired into or proved by extrinsic evidence for the purpose of
attacking his character for truthfulness, other than conviction of crime
as provided in Articles 609 and 609.1 or as constitutionally required.

State v. Adams, 11-1052 (La. App. 5 Cir. 5/16/13), 119 So.3d 46, 53, writ
denied, 13-1413 (La. 12/6/13), 129 So.3d 531.

In this case, defendant, M.G., seeks to question the victim, W.G., as to (1)
whether W.G. did in fact sexually abuse his child and (2) whether W.G. “set up”
M.G. or falsely accused M.G. of the domestic abuse charges at issue in this case to
retaliate for the sexual abuse accusations made against him by his minor child
allegedly at M.G.’s direction.

Upon review of this writ application and attachments thereto, we find that
the trial court erred in permitting M.G. to question the victim W.G. directly as to
whether he in fact abused his minor child. Such evidence is inadmissible to attack
the victim’s credibility under La. C.E. art. 608 where the victim was never
convicted of any crime and further where, as here, the evidence before the trial
judge at the time of the hearing on the motion in limine demonstrates that the
accusations were investigated and determined invalid. Accordingly, we reverse in
part the trial court’s ruling and find that the direct questioning as to whether the
victim W.G. sexually abused his daughter is inadmissible at this time.

As to the questioning of W.G. concerning whether he falsely accused M.G.
of the charged crimes at issue to retaliate for the sexual abuse accusations made
against him by the minor child allegedly at the direction of M.G., we find the trial
judge did not abuse his discretion in finding that such questioning may be
admissible at trial. However, we find the trial judge’s determination on the
admissibility of that evidence is premature at this time. We amend the trial court
judgment to reflect that such evidence is only admissible as relevant if defendant in
fact presents to the fact-finder at trial, through opening statements, testimony, or
documentary evidence, the defense that W.G.’s motive to “set up” M.G. for the
charges at issue arises out of the sexual abuse accusations made against W.G. by
the minor child allegedly at the direction of M.G. However, until that defense is
laid out before the fact-finder at trial, any evidence concerning the accusations of
sexual abuse of the minor child by the victim W.G. is irrelevant and inadmissible.

We point out that the trial judge made his ruling “based upon what I have
before me today” and further that a trial court may change its ruling regarding
admissibility of evidence as new evidence is presented or as the circumstances
change during trial. State v. Johnson, 19-201 (La. App. 3 Cir. 12/4/19), 286 So.3d
493, 506, writ not considered, 20-00126 (La. 3/2/21), 311 So.3d 1050. At the
hearing on the motion in limine, defense counsel indicated that he is requesting
further documents related to the minor child’s medical treatment as well as
investigative records from the Family Justice Center. Should any new evidence or
circumstances be presented to shed further light on any evidentiary issue, the State

3

or M.G. is permitted to seek to have the trial court revisit the admissibility of any
evidence.

Accordingly, for the reasons provided herein, we grant the State’s writ in
part and reverse the trial court’s ruling as to the questioning of whether W.G. did in
fact sexually abuse the minor child. As to the questioning concerning the
accusations of sexual abuse and the motivation for W.G. to testify concerning the
charged crimes at issue against M.G., we find such ruling is premature at this time
and we amend the trial court judgment to reflect that such evidence is only
admissible should defendant set forth a defense at trial and seek to show that W.G.
“set up” or testified falsely concerning the charges at issue in an effort to retaliate
for the sexual abuse allegations made by the minor child allegedly at the direction
of defendant, M.G.

Gretna, Louisiana, this 14th day of February, 2022.

FHW
MEJ
SJW

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 02/14/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-K-685
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald L. Foret (DISTRICT JUDGE)
Thomas J. Butler (Relator) Richard L. Ducote (Respondent)
Darren A. Allemand (Relator)

MAILED
Victora McIntyre (Respondent) Honorable Paul D. Connick, Jr. (Relator)
Attorney at Law District Attorney
318 East Boston Street Twenty-Fourth Judicial District
2nd Floor 200 Derbigny Street
Covington, LA 70433 Gretna, LA 70053