State v. Babineaux

287 So.3d 821

STATE of Louisiana

v.Joshua BABINEAUX

19-390

Court of Appeal of Louisiana, Third Circuit.

December 18, 2019

Pride J. Doran, Dwazendra Smith, Doran & Cawthorne, P.L.L.C., Post Office Box 2119, Opelousas, LA 70571, (337) 948-8008, COUNSEL FOR DEFENDANT/APPELLANT: Joshua Babineaux

Earl B. Taylor, District Attorney, Twenty-Seventh Judicial District, Kathleen E. Ryan, Assistant District Attorney, Post Office Drawer 1968, Opelousas, LA 70571, (337) 948-0551, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.

GREMILLION, Judge.

Defendant, Joshua Babineaux, was charged by bill of information filed on July 24, 2015, with second degree cruelty to juveniles, a violation of La.R.S. 14:93.2.3. An amended bill of information adding the charge of oral sexual battery of a victim under the age of twelve, a violation of La.R.S. 14:43.3, was filed on March 10, 2017.

On November 7, 2017, the State amended the bill of information to charge oral sexual battery without the victim being under thirteen years of age. Defendant then entered a "no contest plea under State versus Alford" to the charge of second degree cruelty to juveniles. Sentencing proceedings were held on November 29, 2017, December 27, 2017, and April 13, 2018. On April 13, 2018, Defendant moved to withdraw his guilty plea, and the trial court granted that motion. A second amended bill of information was filed on December 13, 2018, charging Defendant with second degree cruelty to juveniles and oral sexual battery on a victim under the age of twelve.

Defendant waived his right to trial by jury on January 3, 2019, and a bench trial commenced. Defendant was found guilty of second degree cruelty to juveniles and not guilty of oral sexual battery on January 4, 2019. On January 24, 2019, Defendant was sentenced to serve five years at hard labor. A Notice of Appeal was filed on January 31, 2019, and was subsequently granted.

Defendant asserts the following errors:

1. The trial court erred in finding Babineaux guilty of second-degree cruelty to juveniles when [there was] insufficient evidence to establish that defendant intentionally placed the victim in hot water or any other elements of the offense.

2. The trial court erred by placing too much weight on Dr. Wood's expert testimony to find Babineaux guilty of second degree cruelty to juveniles.

3. The trial court erred in excessively sentencing Babineaux to five years at hard labor for this first time felony conviction.

FACTS

J.R, who was four years old on the date of the offense, was burned with hot water during a bath.¹

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

There was no written waiver of jury as required by La.Code Crim.P. art. 780. However, Defendant and his attorney were in open court when the trial court extensively questioned Defendant regarding his waiver of jury trial. The trial court found that Defendant knowingly and voluntarily waived his right to jury trial. See State v. Bell , 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830 (this court found the error in failing to obtain a written waiver harmless where defendant and his attorney were in open court when the judge addressed his right to, and waiver of, jury trial.) See also State v. Loyd , 18-968 (La.App. 3 Cir. 6/5/19), 274 So.3d 112. Accordingly, the error in failing to obtain a written waiver in violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant contends the trial court erred in finding him guilty of second degree cruelty to juveniles when there was insufficient evidence to establish that he intentionally placed the victim in hot water or any other elements of the offense.

Under the due process standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." When reviewing a conviction based upon circumstantial evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. See State v. Morris , 414 So.2d 320, 321–22 (La. 1982) (citation omitted); see also State v. Captville , 448 So.2d 676, 680 (La. 1984) ("When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt."). The reviewing court "does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion[; rather, the reviewing court] evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not ‘have found proof of guilt beyond a reasonable doubt.’ " Captville , 448 So.2d at 680 (emphasis in original; citation omitted).

State v. Lewis , 17-81, pp. 3-4 (La. 10/18/17), 236 So.3d 1197, 1198-99 (alteration in original).

Defendant was convicted of second degree cruelty to juveniles, which is defined as:

A. (1) ... the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.

(2) For purposes of this Section, "serious bodily injury" means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.

La.R.S. 14:93.2.3.

The statute also requires that the State prove Defendant acted with intent or criminally negligent mistreatment or neglect. " ‘Intentional,’ as used in the aforementioned statute pertaining to cruelty to a juvenile, refers to general criminal intent, present whenever there is specific intent and also when circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." State v. Green , 449 So.2d 141, 144 (La. App. 4 Cir. 1984). Criminal negligence is defined as "such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." Id.

State v. Cooper , 15-820, p. 13 (La.App. 4 Cir. 9/13/17), ––– So.3d ––––, ––––, writ denied , 17-1561 (La. 11/28/17), 230 So.3d 222.

Allison Roy, a former employee of Hearts of Hope, interviewed J.R. on February 5, 2015. J.R. was four years old at that time. A video of the Hearts of Hope interview was submitted as State's Exhibit 1 and played for the trial court. During the interview, J.R. spontaneously told Roy that she had burns. J.R. further stated that her dad wanted to blame it on her, but he ran the hot water. J.R. explained that Defendant's son got a scooter for Christmas. She claimed she had a scooter at her grandmother's house, and the scooter had been in the yard and gotten dirty. Thus, her grandmother threw it away. Defendant subsequently told J.R. she did not need toys. He then ran hot water and made her sit down. J.R. further claimed Defendant choked her, slammed her in bed, and made her urinate on herself. Defendant subsequently ran the water and told her to sit down. J.R. also stated Defendant bit her on the hand. During this interview, J.R. also stated the Defendant placed his penis in her mouth.²

Sherika Roberts was the mother of J.R., who was eight years old at the time of trial. Sherika was also friends with Defendant. She had an intimate relationship with Defendant and believed he was J.R.'s father.

After the events at issue, DNA tests confirmed Defendant was not J.R.'s father.

J.R. met Defendant when she was one or two years old and began visiting him when she was three or four years old. J.R. spent the night with Defendant and his family, which included his wife and two kids. There was no visitation schedule, and Defendant would call for J.R. to visit. J.R. had visited Defendant four or five times before she was burned.

Sherika testified that Defendant picked J.R. up on a Friday in January 2015 from school. Sherika checked on J.R. by phone on Friday and Saturday, and she was fine. On Sunday, Sherika missed a call from Defendant while she was playing cards at her father's house. Sherika eventually spoke to Defendant, and Defendant informed her that J.R. had been burned in the tub. He stated he would try to bring her to the doctor Monday, and his wife was a nurse and could take care of it. Sherika had had a couple of drinks and panicked. Defendant then stopped answering his phone. Sherika got his address from a text message and went with several family members to his house, which she had not been to before.

Once at Defendant's house, Sherika brought J.R. outside and placed her in the truck. This caused J.R. pain, so Sherika laid her down and unzipped the onesie she was wearing. J.R. had tape and gauze on her body. Sherika removed it and saw pink. She then called police. J.R. was transported by ambulance to Our Lady of Lourdes. J.R. was subsequently transferred via ambulance to Baton Rouge General Burn Center. J.R.'s injuries were depicted in State's Exhibits 2, 3, and 4. J.R. remained at the burn center for...