APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-1943, DIVISION
"B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Gail D. Schlosser Angad Ghai
COUNSEL FOR DEFENDANT/APPELLANT, VICTOR L. BECNEL Jane L.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg
G. GRAVOIS JUDGE
Victor L. Becnel, appeals his convictions and sentences for
negligent homicide, a violation of La. R.S. 14:32(A)(1)
(count one), and intimidation of a witness, a violation of
La. R.S. 14:129.1 (count two). Defendant was sentenced to
five years at hard labor on count one and eight years at hard
labor on count two. On appeal, defendant argues that the
trial court erred in denying his motion for a new trial
and/or motion for post-verdict judgment of acquittal because
the evidence was insufficient to support the jury's
verdicts. Defendant also argues that his sentences are
following reasons, we affirm defendant's convictions and
sentences. The matter is remanded with instructions to
correct the commitment as noted below.
October 29, 2015, a Jefferson Parish Grand Jury indicted
defendant, Victor L. Becnel, with the second degree murder of
three-year-old P.S (D.O.B. 2/13/12), in violation of La. R.S.
14:30.1 (count one), and with injuring or attempting to
injure a witness in her person or property with the intent to
influence testimony, reporting of criminal conduct, or
appearance at a judicial proceeding, in violation of La. R.S.
14:129.1 (count two). Defendant pleaded not guilty at his
arraignment on October 30, 2015.
proceeded to trial before a twelve-person jury on January 23,
2017. On January 31, 2017, the jury found defendant guilty of
the lesser included offense of negligent homicide, a
violation of La. R.S. 14:32(A)(1) on count one, and guilty as
charged on count two.
March 15, 2017, the trial court denied defendant's
post-verdict judgment of acquittal and motion for a new
trial. After a waiver of delays, the trial court sentenced
defendant on count one to five years imprisonment at hard
labor without the benefit of probation, parole, or suspension
of sentence, and on count two to eight years imprisonment at
hard labor. The trial court further ordered defendant's
sentences to run concurrently with each other. On March 23,
2017, defendant filed a motion to reconsider sentence and a
motion for an appeal. The trial court granted defendant's
motion for an appeal on the date of its filing (March 23,
2017) and denied defendant's motion to reconsider
sentence on March 24, 2017. Defendant now appeals,
challenging the sufficiency of the evidence used to convict
him of negligent homicide and intimidation of a witness and
the alleged excessiveness of his sentences.
Adam Dequeant, Larry Amedio, and Larry Frederick of the Live
Oak Manor Fire Department responded to a call of a
nonresponsive child around 3:45 p.m. on March 18, 2015, at
628 Oleander Street, Westwego, Louisiana. Upon entry into the
house, Dequeant heard defendant, Victor Becnel,
yelling "we're back here," from the master
bathroom. In the master bathroom, Dequeant observed the
three-year-old victim, P.S., lying on his back with a towel
underneath his head while defendant leaned over him repeatedly
stating, "Don't do this to me. Come on,
[P.S.]." Dequeant and Amedio carried P.S. into the
master bedroom where CPR was performed while awaiting the
arrival of EMS personnel; however, they were never able to
obtain a pulse. Prior to departing for the hospital,
P.S.'s mother, Nelly Pena, arrived and was transported
with P.S. in the ambulance to West Jefferson Hospital where
P.S. was pronounced dead at 4:46 p.m.
standing outside of the family waiting area, Fireman
Frederick observed that when the family was informed of
P.S.'s death, defendant became irate, threw his cell
phone, and was asked to remain calm by hospital security as
he was frightening others around him.
Brian Dehart, Emergency Room physician at West Jefferson
Hospital, testified that P.S. arrived at the hospital with no
vital signs and was cold to the touch. He made resuscitation
efforts to no avail, and P.S. was pronounced dead. Dr. Dehart
recalled notifying P.S.'s family of his passing and found
it "unsettling" that upon delivering the news,
defendant threw things around the room and punched the wall.
Grant Holley of the Jefferson Parish Sheriffs Office
testified that he responded to the call regarding an
unresponsive child on March 18, 2015, and that upon his
arrival, P.S. was being loaded into the ambulance. Detective
Holley spoke to defendant, who advised him that he had picked
up P.S. from his mother at her place of employment earlier
that day because she had informed him that he was sick. He
said that P.S. had been sick for the past two weeks.
Defendant further stated that when they arrived home, P.S.
put his head down on the kitchen table, fell out of his
chair, and was unresponsive, prompting defendant to call
9-1-1. Detective Holley testified that defendant appeared
extremely worried but very coherent and clear in his
explanation of what had transpired. Detective Holley
testified that defendant's demeanor changed at the
hospital when he was informed of P.S.'s death, describing
his demeanor as aggressive and hostile-punching walls and
throwing his cell phone-before being escorted out by
security. After a cursory examination of P.S., Detective
Holley observed no external signs of "foul play."
being escorted from the hospital, defendant was picked up by
his friend, Deputy Ted Raymond of the Jefferson Parish
Sheriffs Office. Defendant told Deputy Raymond that "he
heard a noise when he got home. He sat the boy
... down at the table with the Big Gulp. He
heard a noise from the bathroom, sound like something
fell." He said that P.S. was sick so he was taken to the
hospital. Defendant further told Deputy Raymond that he had
gotten into a fight with P.S. 's grandfather at the
hospital and left. Deputy Raymond convinced defendant to
return to the hospital where, upon their arrival, the police
were looking for him.
Melvin Francis participated in the investigation of the death
of P.S. At the hospital, Detective Francis observed P.S. and
noted two small contusions on his forehead. Detective
Francis, who spoke with defendant when he returned to the
hospital, described defendant's behavior as dismissive,
noting that he referred to P.S. as "the child" and
not by his name and did not seem "caring."
Defendant advised Detective Francis that he received a call
from P.S. 's mother requesting that he pick him up from
her place of employment because he was sick. He told
Detective Francis that after he picked him up and brought him
home, he heard a noise in the kitchen and discovered that
P.S. was unresponsive. Defendant further told Detective
Francis that he carried P.S. to the bathroom and attempted to
revive him before calling 9-1-1. Detective Francis again met
with defendant a few days later, on March 20, 2015, after
defendant inquired about the details of P.S. 's autopsy.
mother, Nelly Pena, testified that she shared custody of P.S.
with his father, Delmus Stewart. She testified that after
separating from Delmus she began living with defendant when
P.S. was four months old.
Pena testified that on or about March 12, 2015, P.S. had not
eaten well at dinner and woke up in the middle of the night
having vomited in his sleep. P.S. slept all day the next day
and was unable to hold down food or water. Ms. Pena dropped
P.S. off at her mother's house that evening, March 13,
2015, because she had to work the next day. On Saturday,
March 14, 2015, Ms. Pena's mother reported to her that
P.S. was still sick and not eating, but was able to drink
coconut water. According to Ms. Pena, the next day, Sunday,
March 15, 2015, P.S. had a fever when she exchanged custody
of P.S. with Delmus. Ms. Pena reported that the following
evening, Monday, March 16, 2015, Delmus brought P.S. to an
urgent care facility where he was prescribed medication and
sent home. P.S. was back in Ms. Pena's custody by Tuesday
evening, March 17, 2015, and according to Ms. Pena, was still
running fever and only eating yogurt. The following day,
March 18, 2015, Ms. Pena brought P.S. to visit his
great-grandmother before bringing him to work with her at
NOLA Motor Sports, since he was still sick and unable to
attend school. Ms. Pena then texted defendant and requested
that he pick P.S. up from her and asked that defendant try
and feed P.S., believing he was likely hungry.
picked P.S. up from Ms. Pena around 2:15 p.m., and the next
thing Ms. Pena recalled was receiving a phone call from
defendant informing her that P.S. had stopped breathing and
that she needed to come home. When Ms. Pena arrived at her
house, she was transported with P.S. in the ambulance to West
Jefferson Hospital where P.S. was pronounced dead at 4:46
two weeks later, on April 2, 2015, defendant and Ms. Pena
were asked to go the police station where they were
questioned about the days leading up to P.S.'s death.
During Ms. Pena's interview, she told Sergeant Tommy Gai
that she and defendant argued about disciplining P.S., saying
that defendant would often tell Ms. Pena that she was
"too soft" on P.S. Ms. Pena further told Sergeant
Gai that defendant would "do a lot of yelling ... spank
him a couple times when he was trying to blow his nose he
would um, [P.S.] didn't like it getting his nose blown
and Vic [defendant] hated that he didn't like it and he
would kind of um, grab him, shake him sometimes um, he would
swing him like [P.S.] listen." She said that she would
tell defendant that he was too hard on P.S. and remind him
that P.S. was just a baby, to which defendant would tell her
"to get out and let me deal with him that's why
he's soft." Ms. Pena further stated, "I think
he just goes overboard he's just a baby." Ms. Pena
told Sergeant Gai that she believed defendant was "just
being strict" because of his upbringing and that even
when he would "maybe hit him to [sic] hard he would feel
bad ... I don't think he realized if he did hurt him that
hard." According to Ms. Pena, defendant had a quick
temper and when asked whether she believed defendant could
have hurt P.S., even if by accident, Ms. Pena replied,
"he is strong enough he-he can get angry enough but I
don't think he would do it on purpose. I think if he did
discipline him he probably went too far seen red." Ms.
Pena said that defendant was a good father but was too strict
and "just so mean." At trial, Ms. Pena confirmed
that P.S.'s daycare had contacted her on a number of
occasions regarding various marks that were observed on P.S.,
including a black eye and a bruise on his face.
second statement provided a few hours after her first, Ms.
Pena recounted the abuse she suffered at the hands of
defendant. She told Sergeant Gai that when defendant became
upset, he would choke and throw her onto the ground. She
further recalled that such instances of abuse happened both
while she was pregnant as well as afterwards. On one
occasion, defendant also threw her head against a wall. She
said that she did not call the police because she had
forgiven him and did not believe he meant it, he having told
her that he would not do it again. Ms. Pena stated that
despite his promises, the physical abuse still occurred, and
she confirmed that she was scared of defendant, expressing
her desire to pursue criminal charges.
trial, Ms. Pena stated that she was intimidated into saying
the things she said in her first statement, asserting that
they were all untrue. Ms. Pena further denied the truthfulness
of her second statement to the police regarding
defendant's abuse committed upon her, including four
separate occasions when defendant strangled her, once while
she was pregnant, and a time when defendant pushed her head
into a wall.
Pena identified a recorded conversation between herself and
defendant while defendant was in jail on August 10, 2016,
during which she discussed with defendant her testimony for a
court hearing scheduled for the following day. On the
recording, defendant is heard telling Ms. Pena, "the
only thing I'm worried about you is that you're not
quick. ... you already know what to do, just let it flow ...
you have been practicing this for a long time."
the court hearing on August 12, 2016, a second conversation
was recorded between Ms. Pena and defendant during which Ms.
Pena and defendant utilized code words and during which Ms.
Pena admonished defendant to be careful of what he said on
the phone. Specifically, during the phone call, Ms. Pena
asked defendant "how did it go," to which defendant
replied, "I should be asking you." Ms. Pena said
"I was there," but, "I could have damaged
myself by saying something." Defendant then stated,
"the one thing I want you to remember, if you were
threatened, coerced or forced, how can it come back to
you?", to which Ms. Pena replied, "because I said
it was all made up." Defendant instructed Ms. Pena that
she "cannot protect the police." Ms. Pena then
began to cry, explaining that she "blamed" herself,
prompting defendant to state "don't take this the
wrong way ... I'm just trying to tell you the strategy
that everyone uses on you. Everyone can tell right off the
bat that you're weak. ... I've known this about you
for a long time, but this is the thing, you don't always
have to be that way baby. ... all you have to do is calm
yourself down ... have you talked to him about every
encounter you've had with those people where you were
threatened?", to which Ms. Pena replied, "we
already talked about this ... you've got to watch what
you say." Defendant said to Ms. Pena, "you know why
they aren't going to let it go? We're the worst
Parish in the State and the worst County in America.
Jefferson Parish trumps up charges so high, ridiculously
high, and then if they know there's a weak case ... they
drop it down to make it seem like it's ok. Another thing
they do is intimidate people. There is nothing to stop police
from intimidating people ... you just weren't
prepared." Defendant then reminded Ms. Pena, "they
are not the good guys," that she is "a little too
trusting," and that "nothing vital has been
Pena testified that while defendant was incarcerated, she
became pregnant by another man and gave birth to a son named
Francisco. Ms. Pena discussed over the phone with defendant
her future with him given the birth of her new child. During
their discussion, defendant stated: "if I have to pick
between you and that baby ... f**k that baby ... not even
that little brat you just pushed out will keep me away from
you, unless you want me away from you." Defendant then
told Ms. Pena how much worse life would be without him there
to protect her, reminding her how her family controls her:
"I took you out of that little girl place that you were
in and put you in a women's place and I gave you control
back. They [Ms. Pena's family] don't like that. ...
They didn't have control when I was there because I was
extreme." Defendant then encouraged Ms. Pena to obtain a
restraining order against Francisco's father, later
stating, "he knew you were weak ... they laugh at
friend, Walter Jenkins, testified that he was charged as a
co-defendant in this case with intimidation of a witness and
pled guilty to a reduced charge of failure to report a
felony. He testified that after P.S.'s death and
defendant's arrest, he spoke with defendant while
defendant was incarcerated. During their conversations,
Jenkins recalled defendant encouraging him to tell Ms. Pena
"to be quiet what she was saying about him." At
defendant's request, Jenkins took time off from work and
relocated from New Mexico to New Orleans.
recorded jail phone call on the morning following
defendant's arrest, April 3, 2015, Jenkins told defendant
that Ms. Pena had informed the police that defendant had
previously choked her and "threw her on the couch."
Jenkins stated that he had "explained to her the
severity of saying something like that. ...
Her saying that did not help your case." He also told
defendant that Ms. Pena had informed the police that
"you shook [P.S.] before," to which defendant
responded, "I'm done." Later, Jenkins told
defendant "I know how rough you play with the boys
because you're just a rough person," explaining,
"they're trying to label you as abusive."
Defendant asked Jenkins whether he had been in contact with
Ms. Pena, to which Jenkins responded, "I talked to Nelly
[Ms. Pena] earlier today. I ain't talked to her again.
You need me to relay something to her?" Defendant then
stated, "tell her to keep her mouth shut,"
prompting Jenkins to reply, "alright, I'll let her
know cause I told her she already did enough damage," to
which defendant stated, "exactly."
another recorded jail phone conversation made later that
afternoon on April 3, 2015, Jenkins told defendant that he
needed to stay as calm as possible because they were
depicting him as a 'violent crazy dude." Jenkins
believed "in the back of Nelly's [Ms. Pena's]
head, she think you did it, ... they probably told her that
what happened to him is from long term abuse. And in
Nelly's head, she like the only person that's rough
with her son is you when y'all playin' and s**t ...
that's the only way in my mother f**kin' mind that
someone would say some dumb s**t like she told them,"
adding, "in my head she is too weak." Jenkins also
told defendant that Ms. Pena said "y'all would get
into it about the way you treated [P.S.]. She told them that
sometimes she didn't want to leave [P.S.] with you
because you was too rough with him. So you tell me what
picture that paints?" Before ending their conversation,
Jenkins stated, "that old n***er that you used to be, is
probably going to come back to haunt you right now,"
prompting defendant to respond, "I always knew he
following day, April 4, 2015 at 7:22 a.m., in another
recorded jail phone conversation, Jenkins told defendant that
the case is "all depending on Nelly's
testimony," to which defendant stated, "I need them
lawyers to discredit that," and Jenkins replied,
"yeah, they gonna have to attack her bro, cause she
f**king retarded." Defendant told Jenkins, "if it
comes down to testimonies and all that s**t, I definitely
need her [Ms. Pena] for that." Jenkins responded,
"I really don't know what to do with her bra [sic].
I wanna talk to her but I'm hot." Defendant then
told Jenkins, "try not to give her a 10. Give her a 5,
but try not to give her a 10," prompting Jenkins to
reply, "I'll do it... I'm gonna
give her a 3, but I won't give her a f***ing 15."
Jenkins testified at trial that the numbers discussed in this
telephone call were references to power levels on a video
game, and indicative of the "amount of force" he
was to use on Ms. Pena, with the number four being as stern
as possible "to get her to shut up."
that same day, defendant told Jenkins over the phone,
"make sure that that person [Ms. Pena] know that
testimony is everything." Jenkins confirmed, "yea,
I know. We got it, don't worry about that."
Defendant then said, "I know you probably gonna ride
your car around to talk about it so if you want to just put
your car in my garage and use my truck," prompting
Jenkins to respond, "man I got all that taken care of
bro don't worry about it." Defendant then told
Jenkins to ask his (defendant's) father to call "the
detective" to find out where the "big change"
in the case came from because "the original
detective" on the case said "everything was
good," to which Jenkins stated "probably came from
the D.A.'s." Defendant then told Jenkins he did not
think it came from the D.A. but rather "from somebody
opening their mouth. The police picked up on that and
that's how that whole thing played out. Remember what I
told you, don't let her out your sight." Defendant
later told Jenkins, "[a]ccess level 3 granted, go to 5
if you need to, but make sure you keep her on my side. Test
her loyalty every which way you can. ... When you get a
chance, get her in the car and go take a ride. A long ride
wherever." Jenkins responded, "alright, we gonna
talk bra [sic] and see what's going on."
testified at trial that he did not end up using the level of
force he discussed with defendant on Ms. Pena. He further
testified that while he spoke with Ms. Pena after his
conversation with defendant to find out why she had said the
things she did, which caused defendant to be arrested, he
never spoke to her about dropping the charges. He did,
however, confirm that he told Ms. Pena "that her
statements were hurting" defendant and that she agreed
to help him on her own. At trial Jenkins characterized
defendant's personality as "kind of
Jenkins was meeting with Ms. Pena on the evening of April 4,
2015, defendant called Jenkins, who was at Ms. Pena's
house. Defendant asked to speak with Ms. Pena, and Jenkins
responded, "everything's good with that." After
defendant spoke with Ms. Pena, Jenkins got back on the phone
and was instructed by defendant to "take a quick walk
and get by yourself." Defendant then questioned Jenkins,
"what do you think?", to which Jenkins responded,
"she good." Defendant then asked,
"100%?", and Jenkins answered, "yea ... she
gonna drop all her charges." Defendant later commented,
"as long as I got her, nothing else matters,"
telling Jenkins "good job, good job." Jenkins then
stated, "I just told her she gotta watch what she
Taylor, an expert in the field of domestic violence,
explained to the jury the various types of domestic violence
ranging from physical to psychological. She explained that
physical abuse typically begins in the form of minor injuries
and eventually escalates in severity. Dr. Taylor noted that
it is not uncommon for a victim of domestic violence to stay
in a relationship for various reasons, including fear of
retaliation or the desire to keep the family unit whole. In
her experience, it was common for victims of domestic
violence to recant statements previously given about the
abuse they have suffered because of their love for their
abuser. She further opined that in situations of statement
recantation, it is typical to see the victim of domestic
violence express a feeling of responsibility and guilt for
their abusers' incarceration and/or feel pressured into
dropping the charges against them.
Taylor testified that she reviewed the statements made by Ms.
Pena after her son's death, in which Ms. Pena told the
officers of the multiple occasions of severe physical abuse
she suffered at the hands of defendant and concluded Ms. Pena
suffered from domestic abuse. Dr. Taylor noted that in her
statement, Ms. Pena told the officers that she did not call
the police after these instances of abuse because she was
scared of defendant. Dr. Taylor also listened to the
jailhouse calls made on July 10, 2015 between defendant and
Ms. Pena which involved defendant minimizing, blaming, making
an appeal for sympathy, and committing emotional abuse on Ms.
Pena. She testified that defendant exhibited his power and
control over Ms. Pena by demanding that she repeatedly say
that she loved him and by expressing his undying love for her
in a coercive and manipulative way. Dr. Taylor testified that
another call between defendant and Ms. Pena on April 6, 2016
involving discussions of Ms. Pena's pregnancy by another
man, instructing her on what she should do, and how she
appeared weak to others, was, in her opinion, another display
of power and control over her. Additionally, Dr. Taylor noted
that on July 22, 2016, two days after her child by another
man was born, defendant made threats regarding the
child's father, calling her weak, all while utilizing a
very intimidating tone of voice.
Susan Garcia, an expert in the field of forensic pathology,
performed the autopsy on P.S. Dr. Garcia noted that P.S.
presented with a contusion on the right side of his forehead,
a scar on his left elbow, and two more small contusions on
his lower back. An internal examination of P.S. revealed the
presence of a pint of blood in his abdominal cavity and a
liver laceration five centimeters in length- which she opined
to be the direct result of blunt force trauma to the
abdomen. She noted that on the liver were
characteristics of recent trauma superimposed on remote
trauma, meaning that there was evidence that the liver was in
the process of trying to repair itself from a prior injury
which was then recently re-injured causing the old injury to
bleed acutely and cause P.S.'s death. The internal
examination also showed bleeding into P.S.'s diaphragm,
the peritoneal wall, some of the tissue near his esophagus,
and in the area next to his pancreas, the mesentery (the
tissue that holds the small and large bowel in place), and
the serosa (the external portion of the bowels), all in the
area where the liver was lacerated. Based on her
observations, Dr. Garcia believed that there was likely more
than a single episode of blunt force trauma which caused
P.S.'s liver to lacerate. Dr. Garcia also concluded that
P.S.'s forehead contusion was an acute injury due to the
presence of recent hemorrhage and lack of inflammatory
response. Dr. Garcia listed the cause of death as blunt force
trauma to the abdomen, and the manner of death as a homicide.
P.S.'s pancreas appeared abnormally large and firm, Dr.
Garcia requested a consultation from pediatric pathologist
Dr. Bradley Cheek. Dr. Cheek, an expert in the field of
pediatric pathology, testified that he provided a consult per
Dr. Garcia's request. After examining the pancreas and
tissue slides from P.S.'s other organs provided to him by
Dr. Garcia, Dr. Cheek concluded that the liver contained
reparative fibroplasia calcifications indicative of a remote
injury as well as acute hemorrhage and necrosis
indicative of a recent injury. Dr. Cheek agreed with Dr.
Garcia and defense expert Dr. Michael Baden that P.S. had
sustained an underlying injury to his liver leading up to his
death, but further agreed with Dr. Garcia that there was also
a superimposed acute event on his liver.
Eddie Klein interviewed defendant on April 2, 2015. During
his statement, defendant was asked about discipline in the
home. Defendant said that he lets Ms. Pena "deal with it
until she wants me to deal with him ... I pop him on his
hand. I might have popped him on his butt never
excessive." He admitted that he and Ms. Pena would have
arguments about P.S., ranging from his picky eating habits to
his failure to listen. Defendant said that he came from a
"really disciplined house" and that Ms. Pena did
not. Defendant further stated that he did not know how P.S.
could have sustained a laceration to his liver. During his
interview, Detective Klein obtained information from Sergeant
Gai, the officer who interviewed Ms. Pena, that there may
have been abuse in the home. According to Detective Klein,
Ms. Pena provided a very vivid description of the dynamics of
her household to Sergeant Gai regarding the abuse she and her
son experienced at the hands of defendant.
the interview, a warrant was issued for defendant's
arrest. The warrant, authored by Detective Klein, included
information obtained from Sergeant Gai which stated that on
the morning of March 18, 2015, Ms. Pena took P.S. to work
with her due to the growing tension between her and defendant
over disciplining P.S.
grandmother, Brendell Stewart, testified that Ms. Pena and
Delmus, her son, shared custody of P.S. and that when Delmus
picked P.S. up from Ms. Pena on Sunday, March 15, 2015, he
was not feeling well. Delmus brought P.S. to Mrs. Stewart who
gave him a bath while her son went to Walgreens to purchase
Pedialyte, which P.S. drank. Mrs. Stewart recalled that she
watched P.S. the following day, Monday, March 16, 2015, while
Delmus was at work and testified that P.S. ate cereal for
breakfast and then watched television for most of the day
because he was still feeling ill. Mrs. Stewart testified that
P.S. also ate lunch that day, and even though P.S. seemed to
be improving, she could tell he was still not feeling well.
When her son returned home, they brought P.S. to an urgent
Susan Vaught, an expert in the field of general and internal
medicine, treated P.S. at her urgent care facility on March
16, 2015, two days before his death. P.S.'s father,
Delmus, reported that P.S. had started with fever four days
prior, which had been intermittent, with a maximum
temperature of 100.0, vomiting which also started four days
prior and lasted only two days, with no cramping, abdominal
pain, diarrhea or constipation, chronic chills which were not
severe, and a decreased appetite with upset stomach. When Dr.
Vaught met with P.S., she noted that he was walking and
standing near his father, and was not cheerful, yet did not
appear obviously sick. Dr. Vaught observed that his vitals
were within normal range with the exception of his
temperature presenting as a low grade fever. P.S. allowed Dr.
Vaught to lift him onto the exam table where she conducted a
physical examination on him, including an extensive abdominal
examination. During the abdominal examination, she palpated
all four quadrants, including deep into the upper right
quadrant where the liver was located, to determine whether it
was enlarged or inflamed. She noted P.S.'s abdomen was
normal to palpation, his abdomen was not rigid or distended,
was not tender, and active bowel sounds were present. Dr.
Vaught testified that had P.S. been suffering from an acute
liver injury, he would have cried, screamed, or bent his
knees to keep her from touching his abdomen if palpation was
attempted. With no abnormalities found during P.S.'s
examination, Dr. Vaught diagnosed P.S. with acute
gastroenteritis (stomach virus) with instructions to
alternate between Tylenol and Ibuprofen for his
and Mrs. Stewart brought P.S. home, and by the next morning,
Tuesday, March 17, 2015, P.S. was up and running around.
Delmus left for work, and after breakfast, Mrs. Stewart took
P.S. for a walk to the park where he played on the slide
before walking back home. Once back at Mrs. Stewart's
house, P.S. had lunch, ice cream, and watched television
before taking a nap. Mrs. Stewart recalled that when he
awoke, he was somewhat cranky, before she returned P.S. to
Stewart testified that he picked P.S. up from Ms. Pena on
Sunday March 15, 2015, and that Ms. Pena told him that P.S.
had a fever and had been sick all weekend. Delmus observed
that P.S. only wanted to be held and appeared to be in pain.
The following morning, he was still not feeling well, so his
mother offered to watch him for the day. That afternoon
Delmus and his mother brought him to the urgent care facility
out of an abundance of caution. Delmus testified that the
next morning, Tuesday, March 17, 2015, P.S. was doing better,
but still was not one hundred percent, so he again left P.S.
with his mother for the day. Later that day, Delmus returned
P.S. to Ms. Pena and advised her that P.S. had been asking
for yogurt and told her what had occurred at the urgent care
facility. The next morning, March 18, 2015, Delmus checked in
on P.S., recalling that Ms. Pena advised him P.S. was doing
"a whole lot better." Later that afternoon, at 1:41
p.m., Ms. Pena sent another text message picture to Delmus of
P.S. crying after having woken up from his nap, which Delmus
stated was not abnormal behavior for P.S. The next time Ms.
Pena contacted Delmus was to inform him that P.S. had stopped
breathing and was being transported to the hospital. Delmus
testified that he and defendant never had a good relationship
with one another and that defendant was
"aggressive." He further testified that none of the
other caregivers that watched P.S. were, or would have ever
been, aggressive or rough with P.S.
Poupart, a former manager at NOLA Motor Sports where Ms. Pena
worked, testified that he had the occasion to meet P.S. the
few times Ms. Pena brought him to work with her. He described
P.S. as friendly and outgoing, with a good sense of humor. He
recalled that on the morning of March 18, 2015, P.S. was
quiet, kept to himself, and mostly played on his iPad. It
appeared to Mr. Poupart that P.S. had a cold, but he did not
seem to be in any obvious pain, was not crying, and was
Yannini, also a former employee at NOLA Motor Sports,
testified that he had interacted with P.S. on many occasions
prior to March 18, 2015, when Ms. Pena brought him to work
with her. He recalled that he was acting normal on the
morning of March 18, 2015 and even ran into his office, sat
on his lap, and played a game with him on his iPad. Mr.
Yannini testified that P.S. went into his office a few times
during the day attempting to get his attention and that he
did not notice anything different about him that morning.
Later in the day, Mr. Yannini noticed that he became
"fussy," appearing as if he wanted to leave, so he
picked P.S. up and walked him around the store offering him
something to drink and/or eat which P.S. declined.
Naumann testified that he has known Ms. Pena since elementary
school and that they worked together at NOLA Motor Sports.
Like Mr. Poupart and Mr. Yannini, Mr. Naumann had met P.S. on
prior occasions when Ms. Pena brought him to work with her.
He also saw P.S. on the day of his death and believed P.S.
appeared to have "a little cold." He said ...