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State v. Becnel

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018

STATE OF LOUISIANA
v.
VICTOR L. BECNEL

          ON 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. Beebe

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          JUDE G. GRAVOIS JUDGE

         Defendant, 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 excessive.

         For the following reasons, we affirm defendant's convictions and sentences. The matter is remanded with instructions to correct the commitment as noted below.

         PROCEDURAL HISTORY

         On October 29, 2015, a Jefferson Parish Grand Jury indicted defendant, Victor L. Becnel, with the second degree murder of three-year-old P.S[1] (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.

         Defendant 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.

         On 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.[2] 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.

         FACTS

         Firemen 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, [3] 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[4] 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.[5] 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.

         While 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.

         Dr. 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.

         Detective 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."

         After 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.

         Detective 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.

         P.S.'s 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.[6]

         Ms. 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.

         Defendant 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 p.m.

         Approximately 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.[7]

         In a 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.

         At trial, Ms. Pena stated that she was intimidated into saying the things she said in her first statement, asserting that they were all untrue.[8] 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.[9]

         Ms. 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."

         After 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 said."

         Ms. 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 you."

         Defendant's 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.

         In a 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."

         In 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 would."

         The 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."

         Later 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."

         Jenkins 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.[10] At trial Jenkins characterized defendant's personality as "kind of controlling."

         While 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 say."

         Dr. Rae 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.

         Dr. 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.[11] 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.

         Dr. 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.[12] 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.[13] 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.

         Because 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[14] 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.

         Detective 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.

         After 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.[15]

         P.S.'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 care facility.

         Dr. 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 fever.[16]

         Delmus 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 his father.

         Delmus 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.

         Robbie 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 walking around.

         Francisco 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.

         Brandon 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 ...


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