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State v. Nabors

Court of Appeals of Louisiana, Second Circuit

July 19, 2018


          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 13F3242 Honorable Larry D. Jefferson, Judge

          ROBERT STEPHEN TEW District Attorney Counsel for Appellant

          GEORGE DANIEL ROSS DANIEL J. HUNTER Assistant District Attorneys LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville Counsel for Appellee

          Before PITMAN, GARRETT, and STEPHENS, JJ.

          STEPHENS, J.

         This criminal appeal by the State of Louisiana arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. Defendant Eric Dominic Nabors was charged with second degree murder in violation of La. R.S. 14:30.1 and was convicted by a unanimous jury of second degree murder. Nabors filed a motion for post verdict judgment of acquittal. The trial court modified the jury's verdict, found Nabors guilty of the responsive verdict of negligent homicide, and sentenced him to serve five years at hard labor. No motion to reconsider sentence was filed. The state now appeals. For the following reasons, we reverse the trial court's modification of the jury's verdict, vacate the sentence imposed by the trial court, reinstate the jury's verdict, and remand to the trial court for sentencing in accordance with Nabors' conviction of second degree murder.


         On November 29, 2013, officers with the West Monroe Police Department ("WMPD") were dispatched to Glenwood Regional Medical Center, West Monroe, Louisiana, in reference to the death of a two-year-old child, Jemarion Jackson, who sustained severe injuries while in the care of Nabors. Following an investigation by WMPD, Nabors was indicted by a grand jury for the second degree murder of Jemarion and possession of marijuana.[1] Nabors pled not guilty to both charges at arraignment.[2] A jury trial commenced on April 6, 2017, wherein 14 witnesses testified, all called by the state. Notably, the trial court's charge to the jury defined direct and circumstantial evidence and clearly discussed the burden of proof with regard to both types of evidence. Furthermore, the charge to the jury identified manslaughter and negligent homicide as responsive verdicts to the charge of second degree murder and provided definitions of both. During deliberation, the jury requested the trial court provide the definitions of guilty as charged, guilty of manslaughter, and guilty of negligent homicide. In response, the trial court reread to the jury those portions of the original charge. The jury later made a second request for the definition of manslaughter. The trial court again reread to the jury the portion of the original charge that defined manslaughter. Thereafter the jury made a third and final request that read as follows: "Please clarify if manslaughter means the intent to harm. If so, if it's irrelevant. Can we have an example of manslaughter?" The trial court informed the jury that it could not provide an example and, again, reread the portion of the original charge that defined manslaughter. After deliberation, the jury unanimously returned a verdict of guilty as charged of second degree murder.

         Prior to sentencing, Nabors filed a "Motion for Post Verdict Judgment of Acquittal and/or Alternatively a Verdict of a Lesser Included Responsive Verdict Under La.C.Cr.P. art. 821." The state filed an opposition, and a hearing on the motion was held. In oral argument, the state emphasized the deference owed to the jury's verdict, noting that the jury was contemplative, alert, and engaged during the entire trial, particularly during the testimony given by the medical experts. The state further argued that the fact the jury came back three times to request the definitions of the responsive verdicts demonstrated they strongly considered all of the options before them before returning a unanimous verdict of guilty as charged. The trial court subsequently determined that it needed to review the transcript of trial testimony given by the forensic pathologist who performed the autopsy, Dr. Jennifer Forsyth, then ultimately overturned the jury's verdict and found Nabors guilty of negligent homicide. Upon ruling, the trial court stated that it reviewed the evidence in a light most favorable to the state and found that the evidence only supported a conviction of negligent homicide, as there was no direct evidence demonstrating that Nabors inflicted the injuries suffered by Jemarion or that Nabors was the only person who had access to Jemarion in the hours before his death. The trial court concluded that Nabors' negligent supervision of Jemarion, however, indirectly contributed to his death. In support of its ruling, the trial court explained, in pertinent part:

Having read the testimony of Dr. Forsyth, in here she could not pinpoint, you know, the timeframe of some of the injuries the child had, but the conclusion that there were multiple blunt force injury or trauma to the-to the child. As to when it occurred, it was not clear at to whether it occurred on mo-on that date, but there was some indication they were old bruises to the child's body and she described the process by which she made that determination as to whether or not there was, I guess, coagulation of stuff around the specific injury that would indicate that it was recent or occurred, you know, hours before the child was seen by a-a physician. What stands out here is she said there were a lot of injuries to the child. Now the evidence at-at the-at the trial I heard no evidence at the trial as to any actual injury being committed by Mr.-Mr. Nabors, except a neighbor heard a bump.
. . . .
But there's no indication here that on this date in question the he-he or she or anybody who had-who had disciplined the child and what happened to that child during that time period, I think it might have been-I don't know if it was two hours that the child was left alone by Mr. Nabors, and who had access to the child, even though the-the State came in on that issue and said, well there was only one person that had the key and that was Mr. Nabors to the-to the apartment. But the-the thump heard by the neighbor is not-was not sufficient to establish that these injuries were inflicted by Mr. Nabors or when these was inflicted. All we know is that it was inflicted during the time-during that that he had the child under his care and therefore the court finds that a lesser verdict could be rendered here and find him guilty of negligent homicide.

         Nabors was subsequently sentenced to five years at hard labor. No motion to reconsider sentence was filed, and the state now appeals.


         The state asserts that the evidence presented at trial was sufficient to establish Nabors' guilt of second degree murder and the trial court erred in modifying the jury's unanimous verdict and finding him guilty of the responsive verdict of negligent homicide. Relying on State v. Voorhies, 590 So.2d 776 (La.App. 3 Cir. 1991), the state argues that the trial court incorrectly applied the motion for new trial "thirteenth juror" standard of review by substituting its own differing judgment on the evidence for that of the jurors, disregarding the state's evidence as a whole. The state urges that the trial court should have applied a standard similar to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), and examined the sufficiency of the evidence. We agree and find the following testimony and evidence presented at trial was more than sufficient to support Nabor's conviction of second degree murder.

         Trial Testimony

         The state's first witness was Captain Jennifer Worley Smith of WMPD, who testified that she was dispatched with Officer Chad Grubbs to the hospital at approximately 10:30 p.m. on November 29, 2013, in connection to a deceased child. Upon arriving at the hospital, Cpt. Smith and Ofc. Grubbs made contact with Dr. Nicholas Slade Smith, Jemarion's mother, Nakiyah Jackson, [3] and her boyfriend, Nabors. Captain Smith determined that the injuries leading to Jemarion's death occurred in West Monroe, contacted Detective Tommy Jones, the on-call investigator, and remained at the hospital until he arrived. Officers were dispatched to the location where the injuries occurred, an apartment in West Monroe, Louisiana, to secure the residence in case it was determined that a crime occurred. Captain Smith identified Nabors in open court as one of the people she spoke with at the hospital. A few hours after leaving the hospital, Dr. Smith called the police department, spoke with Cpt. Smith and indicated that he believed Jemarion's injuries were not accidental.

         Officer Grubbs corroborated Cpt. Smith's testimony, adding that Nabors brought Jemarion to the emergency room. Officer Grubbs did not take any statements from Nabors; however, he transported Nabors to the police department at Det. Jones' request. After placing Nabors in a police interview room, Ofc. Grubbs accompanied Detective Paul Blunschi to the apartment to take photographs and preserve possible evidence.

         Dr. Smith testified that he was working in the hospital's emergency room and attempted to resuscitate Jemarion on the night he died. Dr. Smith recalled a woman running into the emergency room screaming that her child was not breathing. Nabors carried Jemarion into an exam room, and Dr. Smith observed Jemarion vomit on Nabors' jacket. Nabors left the exam room after placing Jemarion on the bed. Dr. Smith observed that the child was cold to the touch, was not breathing, and had no heartbeat. He also observed bruises on Jemarion's torso, back, leg, face, and scalp. Jemarion's body temperature was 86 degrees upon arrival at the hospital. Dr. Smith noted that although he witnessed Jemarion vomit on Nabors' jacket, the movement of gases in the body make it common for a person to vomit after death. Jemarion was pronounced dead at 11:10 p.m. following 30 minutes of CPR.

         Dr. Smith testified that the X-rays and CAT scans of Jemarion's body revealed gastric and intestinal distention, a questionable liver abnormality, abdominal and pelvic fluid, possibly blood, no osseous injury, and air in the spinal canal. According to Dr. Smith, air in the spinal canal indicates that there is a leak or tear in a viscus organ, and air has leaked out of those into places where there should not be air. Dr. Smith noted that air in the spinal canal has multiple causes, trauma being a major example. CAT scans of Jemarion's chest revealed possible rib fractures, swelling or fluid accumulation in his lungs, and scattered free air. A scan of Jemarion's head also revealed soft tissue swelling of the frontal scalp, swelling throughout his brain, scattered intracranial air, but no skull fracture. Jemarion also had bruises on his body that were in various stages of healing. In his professional opinion, Dr. Smith believed only physical trauma could have caused Jemarion's injuries.[4]

         Dr. Jennifer Forsyth, a forensic pathologist, testified that she performed Jemarion's autopsy. Like Dr. Smith, Dr. Forsyth testified that Jemarion's body showed significant external and internal signs of blunt force trauma. Jemarion had numerous bruises and scrapes to his head but no skull fractures. There was a significant amount of blood in between his brain and skull, and his brain was swollen. Dr. Forsyth stated that the average two-year-old has one liter of blood in his body, and Jemarion's autopsy revealed 750 milliliters of blood in his abdominal cavity caused by lacerations to his liver and his mesentery (a fold of membrane that attaches the abdominal organs to the abdominal wall). Jemarion also had several bruises on his heart, thymus gland, and both lungs. Several of Jemarion's ribs were fractured on his left side and the left side of his back. Dr. Forsyth stated that she did not believe the ribs were broken during resuscitative efforts by hospital personnel because such injuries would then have been on the front of Jemarion's body, not his back. The knuckle on Jemarion's right hand was dislocated, and Jemarion had bruises on the right side of his face, on his lower back, and older bruises on the back of his left leg. Dr. Forsyth noted that the bruise on Jemarion's leg was consistent with being struck by the loop of a belt or cord that is folded in half, and added that it is difficult to injure oneself behind the knee or on the lower back. Dr. Forsyth also observed bruises and small cuts on the inside of Jemarion's lips consistent with something being pressed over his face and trying to move his head away. Jemarion had a blood alcohol level of 0.066, and Dr. Forsyth noted a strong smell of alcohol when she performed the autopsy.[5]

         Dr. Forsyth testified that she did not believe the injuries suffered by Jemarion were accidental or self-inflicted and further noted that the bruises on Jemarion's body exceeded those typical of a two-year-old who is still learning to walk. Rather, she opined that Jemarion's death was caused by multiple blunt-force injuries which contributed to his internal injuries. Dr. Forsyth further stated that while swelling in the brain may take hours to ...

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