APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT NUMBER 79,
436, DIVISION F, PARISH OF POINTE COUPEE STATE OF LOUISIANA
HONORABLE EDWARD J. GAIDRY, JUDGE
Richard J. Ward, Jr. District Attorney and Antonio M.
"Tony" Clayton Terri R. Lacy Assistant District
Attorneys Port Allen, Louisiana Chad A. Aguillard Assistant
District Attorney New Roads, Louisiana Counsel for Appellee
State of Louisiana
Tiffany Myles Crosby Baton Rouge, Louisiana Samuel H. Winston
New Orleans, Louisiana James Edgar Boren Baton Rouge,
Louisiana Counsel for Defendant-Appellant Jason M. Lutz
BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
defendant, Jason M. Lutz, was charged by grand jury
indictment with second degree murder, a violation of La. R.S.
14:30.1, and pled not guilty. After a bench trial, he was
found guilty as charged. The trial court denied the
defendant's motion for postverdict judgment of acquittal.
The defendant was sentenced to life imprisonment at hard
labor without the benefit of probation, parole, or suspension
of sentence. The defendant now appeals, raising eight
assignments of error challenging the sufficiency of the
evidence, the admission of expert testimony, and the
constitutionality of the sentence. For the following reasons,
we affirm the conviction and sentence.
January 28, 2014, at 8:19 p.m., the 911 center of the Pointe
Coupee Sheriffs Office (PCSO), received a call from a female
reporting an unresponsive infant. PCSO Detective Joshua
Adams, who was patrolling frozen roads at the time, responded
to the scene at Patin Dyke Road, the residence of Jason Lutz
(the defendant), Ashley Cogar (the codefendant), Joseph Lutz
(the unresponsive infant and victim herein), and three other
young children. Detective Adams noted that the residence was
very dirty. He further noted that drug paraphernalia was in
plain sight, including many small corner baggies with
residue, and little straws on the counters, on the floor in
the room with the baby, in the bathroom, and "just
they were not considered suspects at the time, Detective
Adams advised the defendant and Cogar of their rights before
asking them to write a statement on what took place that day.
In the defendant's written statement, he noted that he
and the codefendant walked into the victim's room at
about 8:10 p.m., the codefendant moved the victim's
blanket, and they noticed that the victim was not breathing.
In her written statement, the codefendant stated that she
checked on the victim around 4:30 to 5:00 p.m., before she
and the codefendant went to the store, at which point the
victim appeared to be fine. When they returned around an hour
later, she fed her daughters and then went to get the victim
to feed him. When she moved the victim's blanket, he did
not move. She picked him up and turned him over and noticed
that he was not breathing, and his blanket was stuck to the
right side of his face. She removed the blanket and screamed
for the defendant who ran for help. Neither the defendant nor
codefendant made any statements to indicate that they tried
to feed the victim at any point between a 6:00 a.m. feeding
and the point that he was discovered that evening no longer
Detective Robert Roy was assigned to the case and dispatched
to the scene. Detective Roy received consent to search the
residence from the codefendant and a consent form was
executed. He worked his way to the back bedroom where the
victim was located and took photographs of the victim and the
surrounding scene, including a soiled diaper on the floor
near cut pieces of straws and other drug paraphernalia such
as plastic baggies, pills, and a metal pipe with suspected
the victim and the crime scene were observed, the defendant
and codefendant were transported to the Sheriffs Office and
separately interviewed. The defendant and codefendant were
each advised of their Miranda rights, waiver of rights forms
were executed, and each provided a recorded interview. The
defendant stated that to the best of his knowledge, the last
time he knew with one hundred percent certainty that the
victim was alive was when he saw the codefendant feeding the
victim that morning. The codefendant claimed that the victim
was a "slow eater, " noting that she fed the victim
four ounces of milk around 6:00 a.m. on the day in question
before laying him down in the middle of his crib at about
7:15 a.m. and going back to sleep. She indicated that the
defendant would usually check on the victim if he woke up
while she was sleeping, and that they would routinely take
turns checking on the victim. The codefendant woke up around
10:30 a.m., and the victim was still asleep at the time. The
codefendant checked on the victim at about 1:30 p.m., when
she went into the bedroom to change clothes. At that point,
the victim moved around but remained asleep. The codefendant
relaxed for awhile before deciding to go to the store with
the defendant to get food around 4:30 or 5:00 p.m. She and
the defendant asked her roommate, Natasha Garcia (referred to
as Tasha), to keep an eye on the children while they went to
the store. She further noted that she checked on the victim
just before leaving, and he twitched when she made a noise
but was "fine." The codefendant later reiterated
that she saw the victim's blanket move at that time.
they returned, the codefendant asked Tasha if the victim woke
up while they were gone, to which she responded negatively.
The codefendant proceeded to cook dinner for her daughters
before checking on the victim that night. The codefendant
noted that she had laid the victim down on his stomach, but
that he had rolled to the side of the bed, further noting
that he would often roll to the side after being laid in the
middle of the bed. As the codefendant approached the crib to
check on the victim, the defendant started walking toward the
bathroom, but turned around when the codefendant started
screaming. According to the defendant, he began performing
CPR and instructed the codefendant to call 911.
OF THE EVIDENCE
assignments of error numbers one, two, and seven, the
defendant challenges the sufficiency of the evidence. In
assignment of error number one, he specifically argues that
the State did not put forth sufficient proof beyond a
reasonable doubt that the defendant and codefendant neglected
to feed the victim. In assignment of error number two, he
argues that the State did not prove beyond a reasonable doubt
that the victim unjustifiably experienced pain and suffering.
The defendant argues that there was insufficient evidence
that the victim's malnutrition was caused by the
parents' neglect to feed him and that the trial court
reacted emotionally to the photographs of the victim. The
defendant further argues that Dr. Oliver Thelin's
testimony on the possibility of adrenal hypoplasia was
reasonable and difficult to exclude as a hypothesis of
innocence. Finally, in assignment of error number seven and
his reply brief, the defendant argues that due process, the
principal of lenity, and the specific facts and allegations
in this case require a conviction of negligent homicide as
opposed to second degree murder. In that regard, the
defendant cites State v. Small, 2011-2796 (La.
10/16/12), 100 So.3d 797, 806, in noting that the felony
murder rule generally has been interpreted to require that a
direct act of a defendant or his accomplice cause the death
of the victim.
reply brief, the defendant contends that the State glossed
over the Supreme Court's holding in Small. The defendant
argues that there were no direct acts of killing by the
defendant and codefendant in this case. At oral argument on
appeal, the defendant argued that the evidence of a direct
act by him in particular is lacking due to codefendant
Cogar's supposed role as the primary caregiver
responsible for feeding the victim. Contending that the
victim should have been hospitalized based on his weight at
the time, the defendant also claims that this case involves
the "intervening gross negligence" of Dr. Carl
McLemore, Jr., a physician who treated the victim.
conviction based on insufficient evidence cannot stand as it
violates Due Process. See U.S. Const, amend. XIV; La. Const,
art. I, § 2. The constitutional standard for testing the
sufficiency of the evidence, enunciated in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), requires that a conviction be based on proof
sufficient for any rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, to
find the essential elements of the crime charged and the
defendant's identity as the perpetrator of that crime
beyond a reasonable doubt. State v. Jones, 596 So.2d
1360, 1369 (La.App. 1st Cir.), writ denied, 598
So.2d 373 (La. 1992). See also La. Code Crim. P.
art. 821(B); State v. Ordodi, 2006-0207 (La.
11/29/06), 946 So.2d 654, 660. The Jackson standard of
review, incorporated in Article 821(B), is an objective
standard for testing the overall evidence, both direct and
circumstantial, for reasonable doubt. When analyzing
circumstantial evidence, La. R.S. 15:438 provides that the
fact finder must be satisfied that the overall evidence
excludes every reasonable hypothesis of innocence. See
State v. Patorno, 2001-2585 (La.App. 1st Cir.
6/21/02), 822 So.2d 141, 144. When a case involves
circumstantial evidence and the trier of fact reasonably
rejects the hypothesis of innocence presented by the defense,
that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt.
State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.),
writ denied, 514 So.2d 126 (La. 1987).
Revised Statutes 14:30.1(A)(2) defines second degree murder,
in pertinent part, as the killing of a human being when the
offender is engaged in the perpetration or attempted
perpetration of cruelty to juveniles. This section of La.
R.S. 14:30.1 contains the circumstances under which a
defendant can be found guilty under the felony murder rule,
which dispenses with the necessity of proving mens
rea accompanying a homicide-the underlying felony
supplies the culpable mental state. Small, 100 So.3d
at 805. The underlying felony that the defendant was found to
have committed, cruelty to juveniles, is defined in La. R.S.
14:93(A)(1) as the "intentional or criminally negligent
mistreatment or neglect by anyone seventeen years of age or
older of any child under the age of seventeen whereby
unjustifiable pain or suffering is caused to said
child." The term "intentional" as used in La.
R.S. 14:93 refers to general criminal intent to mistreat or
neglect and does not require an intent to cause the child
unjustifiable pain and suffering. State v. Duncan,
2002-0509 (La.App. 1st Cir. 9/27/02), 835 So.2d 623, 629,
writ denied, 2003-0600 (La. 3/12/04), 869 So.2d 812;
State v. Morrison, 582 So.2d 295, 302 (La.App. 1st
Cir. 1991). "Mistreatment" as used in this statute
is equated with "abuse." State v. Comeaux,
319 So.2d 897, 899 (La. 1975).
Reporter's Comment to La. R.S. 14:93 indicates that the
laws governing the jurisdiction of the juvenile court should
be consulted to determine what constitutes a neglected child.
See also State v. Booker, 2002-1269
(La.App. 1st Cir. 2/14/03), 839 So.2d 455, 469, writ
denied. 2003-1145 (La. 10/31/03), 857 So.2d 476 (the
trial court properly considered the statutory definitions of
"neglect" and "caretaker" provided in La.
Ch. Code art. 603 in determining the scope of La. R.S.
14:93). Under La. Ch. Code art. 603(18), "neglect"
is the "refusal or unreasonable failure of a parent or
caretaker to supply the child with necessary food, clothing,
shelter, care, treatment, or counseling for any injury,
illness, or condition of the child, as a result of which the
child's physical, mental, or emotional health and safety
is substantially threatened or impaired." (Emphasis
added.) La. Ch. Code art. 603(4) defines
"caretaker" as "any person legally obligated
to provide or secure adequate care for a child, including a
parent, tutor, guardian, legal custodian, foster home parent
... or other person providing a residence for the
child." (Emphasis added.)
to La. R.S. 14:12, criminal negligence, the requisite mental
state for a crime of cruelty to juveniles, is as follows:
Criminal negligence exists when, although neither specific
nor general criminal intent is present, there is 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.
in order for the State to prove the defendant was guilty of
the second degree murder where the killing occurred during
the perpetration of cruelty to a juvenile, it had to
establish either that: (1) the defendant intentionally
mistreated or neglected the victim, resulting in the
infliction of unjustifiable pain or suffering, and,
ultimately, death; or (2) that the defendant was criminally
negligent in his mistreatment or neglect of the victim,
causing the infliction of unjustifiable pain or suffering,
and finally, his death. Duncan, 835
So.2d at 629. The same mental state is required for negligent
homicide, which is "[t]he killing of a human being by
criminal negligence." La. R.S. 14:32(A)(1). Accordingly,
negligent homicide is "the killing of a human being by
criminal negligence." La. R.S. 14:32.
Allyson Boudreaux, an obstetrician and gynecologist qualified
to deliver babies and examine prenatal babies, delivered the
victim herein, on October 14, 2013, at Woman's Hospital
in Baton Rouge. Dr. Boudreaux noted that her records show
that the codefendant was twenty-four weeks pregnant at her
first visit for the pregnancy with the victim. Confirming
that she delivers about 200 babies a year, Dr. Boudreaux
noted that most women come in for prenatal care at seven to
eight weeks pregnant, with twelve weeks being the extreme.
Dr. Boudreaux recalled that the codefendant was an atypical
patient, noting that she missed several appointments, which
resulted in significant gaps in between her handful of