FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
332, 130C HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
K. Bauman La Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Donasty Anwanique Cohen
Phillip Terrell, Jr. District Attorney Catherine L. Davidson
Cheryl A. Carter Assistant District Attorneys Ninth Judicial
District Court COUNSEL FOR APPELLEE: State of Louisiana
composed of Phyllis M. Keaty, D. Kent Savoie, and Van H.
KENT SAVOIE JUDGE.
Donasty Anwanique Cohen, was charged by indictment filed on
February 22, 2017, with second degree murder, a violation of
La.R.S. 14:30.1. Trial by jury commenced on November 7, 2017.
Defendant was subsequently found guilty of the responsive
verdict of manslaughter, a violation of La.R.S. 14:31. On
January 23, 2018, Defendant was sentenced to serve seventeen
years at hard labor, without benefit of probation, parole, or
suspension of sentence. Defendant now appeals asserting three
assignments of error: 1) the evidence was insufficient to
support her conviction; 2) her sentence is excessive; and 3)
the trial court erred in denying her challenges for cause.
For the following reasons, we affirm as amended with
and Kenneth Anderson were the sixteen-year old parents of
twenty-seven day old Ashtyn Cohen. The three lived in the
home of Kenneth's grandmother, Susie Willis.
Kenneth's brother, Kalib Anderson (who was fifteen years
old at the time of trial), also lived in the home. On January
2, 2017, Susie called 911 because Ashtyn was having trouble
breathing. Ashtyn subsequently died, and Defendant was
charged with second degree murder in his death.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we find an error present.
trial court erred in ordering Defendant's sentence to be
served without benefit of parole. Defendant was sentenced to
serve seventeen years without the benefit of parole,
probation, or suspension of sentence. Louisiana Revised
Statutes 14:31 provides, in pertinent part:
B. Whoever commits manslaughter shall be imprisoned at hard
labor for not more than forty years. However, if the victim
killed was under the age of ten years, the offender shall be
imprisoned at hard labor, without benefit of probation or
suspension of sentence, for not less than ten years nor more
than forty years.
its recitation of the reasons for the sentence, the trial
court noted that because the victim was under the age of ten,
the law provided for a minimum sentence of ten years and a
maximum sentence of forty years. Under that sentencing
provision, Defendant was ineligible for probation or
suspension of sentence. The sentencing provision, however,
requires no restriction of parole eligibility. The trial
court also stated that manslaughter is designated as a crime
of violence. At the time the offense was committed, La.Code
Crim.P. art. 893(A) prohibited a suspended sentence for an
offense designated as a crime of violence. Article 893 did
not, however, authorize the trial court to restrict parole
for an offense designated as a crime of violence. Thus, the
trial court erred in ordering Defendant's sentence to be
served without the benefit of parole. Accordingly,
Defendant's sentence is amended to delete the denial of
parole eligibility, and the trial court is instructed to make
an entry in the minutes reflecting this change. See State
v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d
981; State v. Levy, 08-1467 (La.App. 3 Cir.
6/10/09), 12 So.3d 1135; and State v.
Dupree, 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d
OF ERROR NUMBER ONE
first assignment of error, Defendant contends the evidence
adduced at trial was legally insufficient to sustain her
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979), the Supreme Court set forth the
constitutional standard for testing sufficiency of the
evidence, requiring 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 beyond a reasonable
doubt. Pursuant to La.R.S. 15:438, "[t]he rule as to
circumstantial evidence is: assuming every fact to be proved
that the evidence tends to prove, in order to convict, it
must exclude every reasonable hypothesis of innocence."
Circumstantial evidence involves, in addition to the
assertion of witnesses as to what they have observed, a
process of reasoning, or inference by which a conclusion is
drawn. Like all other evidence, it may be strong or weak; it
may be so unconvincing as to be quite worthless, or it may be
irresistible and overwhelming. There is still no man who
would not accept dog tracks in the mud against the sworn
testimony of a hundred eyewitnesses that no dog passed by.
The gist of circumstantial evidence, and the key to it, is
the inference, or process of reasoning by which the
conclusion is reached. This must be based on the evidence
given, together with a sufficient background of human
experience to justify the conclusion. Prosser, [Law of
Torts], at p. 212.
Consequently, before a trier of fact can decide the ultimate
question of whether a reasonable hypothesis of innocence
exists in a criminal case based crucially on circumstantial
evidence, a number of preliminary findings must be made. In
addition to assessing the circumstantial evidence in light of
the direct evidence, and vice versa, the trier of fact must
decide what reasonable inferences may be drawn from the
circumstantial evidence, the manner in which competing
inferences should be resolved, reconciled or compromised; and
the weight and effect to be given to each permissible
inference. From facts found from direct evidence and inferred
from circumstantial evidence, the trier of fact should
proceed, keeping in mind the relative strength and weakness
of each inference and finding, to decide the ultimate
question of whether this body of preliminary facts excludes
every reasonable hypothesis of innocence.
State v. Chism, 436 So.2d 464, 469 (La.1983).
. . . .
In reviewing the jury's verdicts, we are not required by
constitutional law to determine whether we believe that the
evidence establishes guilt beyond a reasonable doubt or even
whether we believe the witnesses. Jackson, 443 U.S.
307, 99 S.Ct. 2781; State v. Mussall, 523 So.2d 1305
(La.1988). Discretion in determinations of credibility is
vested in the jury, which may accept or reject testimony
within the bounds of rationality, and we will only impinge
upon its discretion "to the extent necessary to
guarantee the fundamental protection of due process of
law." Mussall, 523 So.2d at 1310. Rather, we
are charged in this case with reviewing the record to
determine whether the evidence and the reasonable findings
and inferences permitted by that evidence were sufficient to
exclude every reasonable hypothesis of innocence.
Chism, 436 So.2d 464.
State v. Buteaux, 17-877, pp. 11-13 (La.App. 3 Cir.
3/14/18), 241 So.3d 1094, 1101-02.
noted above, Defendant was convicted of manslaughter, which
La.R.S. 14:31(A)(1) defines as:
A homicide which would be [first or second degree murder],
but the offense is committed in sudden passion or heat of
blood immediately caused by provocation sufficient to deprive
an average person of his self-control and cool reflection.
Provocation shall not reduce a homicide to manslaughter if
the jury finds that the offender's blood had actually
cooled, or that an average person's blood would have
cooled, at the time the offense was committed[.]
elements of "sudden passion" and "heat of
blood" are mitigating factors in the nature of a defense
and must be established by a defendant by a preponderance of
the evidence. "Provocation and time for cooling off are
questions for the jury to be determined under the standard of
the average or ordinary person, one with ordinary
self-control." State v. Reed, 14-1980, p. 24
(La. 9/7/16), 200 So.3d 291, 311, cert. denied, ___
U.S.___, 137 S.Ct. 787 (2017).
Brown was employed by Acadian Ambulance on January 2, 2017.
He testified that, on that date, he was dispatched to 385
Cook Avenue. Upon his entry into the residence, Kenneth came
out of the hallway and approached Brown with a baby that was
face down. The baby was "limp, blue, cyanotic and very
gray in color," and Brown knew the baby was in cardiac
arrest. Kenneth handed the baby to Brown and stated he did
not know what was wrong. Brown began performing CPR at that
time, but the baby did not respond. Brown testified that he
asked Kenneth what happened but could not get an answer. He
then went to the couch where Defendant was sitting. Defendant
also stated she did not know what had happened to the baby.
Brown testified, "there was no remorse. It's more of
when I asked her a question, she just kind of rolled her eyes
the room was crowded, Brown took the baby outside and
continued CPR. Once the "unit" arrived, he put the
baby on a stretcher. That was when he noticed bruising on the
baby's right temple, face, and abdomen. When police
arrived, Brown showed them the bruising, and they took
pictures. Brown indicated Defendant did not approach the
ambulance, ask questions, or cry, and was not hysterical.
Brown testified that it was not common to see that type of
bruising on a twenty-eight-day-old baby. Brown stated the
bruising he observed was not from CPR. Austin Rivers and
Benjamin Fontenot, employees of Acadian Ambulance, were
present as well. They both testified that they saw bruising
around both of the baby's eyes, his mouth, and his
Samuel Propst arrived on scene when Brown was performing CPR
on the baby. Brown asked him to keep people away from the
truck so he could continue his efforts to save the baby.
Officer Propst observed bruises on the baby's abdomen and
head. He and a trainee secured the scene until the crime
scene division and detectives arrived. The occupants of the
home, including "the brother, the mother, the father and
the grandmother," were transported to the police
department for questioning. Officer Propst advised them of
their rights, and let them know they would be questioned by a
Detective Terrance Howard testified that Susie slept on the
couch in the living room; Defendant, Kenneth, and Ashtyn
shared a room and a bed; and Kalib had his own room.
Detective Howard interviewed Defendant and was questioned
about that interview as follows:
Q Tell us - what did she tell you as to the incident?
A Initially she advised that she was asleep. She didn't
know what happened. Kenneth woke her up. The baby was
gasping. They woke up Ms. Susie. Ms. Susie notified the
paramedics. And then they were brought to the police station.
Q Okay. And did she indicate that - so she said Kenneth was
holding the baby?
Q Did she indicate whether or not Kenneth was feeding the
baby or anything? Just holding the baby?
A I think later in the interview she said that Kenneth told
her he fed the baby. But I don't think she saw him feed
the baby. If that makes a difference. I think she said that
he told her he fed the baby.
Q Okay. And what else did she tell you?
A I asked her about the bruising to the baby's face. She
said she only noticed the bruises when Kenneth woke her up
and told her that the baby wasn't responding - that the
baby was gasping for air.
Q Did you talk to her about the bruising on the abdomen and
the back of the baby?
. . . .
A . . . I believe she said that she didn't know about
them. Kenneth was the one that usually changed the baby. And
I think he said vice versa - it was her that usually changed
the baby and he didn't know about them.
Howard testified that Defendant indicated Kenneth was the
baby's primary caretaker, and Kenneth indicated she was.
Detective Howard clarified that Defendant said she saw
bruises on the baby's face after Kenneth woke her up.
Detective Howard further testified about his interview with
Defendant as follows:
Ms. Susie - I don't know if it was Ms. Susie's
daughter or her sister -Kenneth's aunt, I believe, was
there during the day. They played with the baby in the living
room. Kalib left to play with friends. Initially I think she
went to bed. Kenneth came in with the baby. Kenneth sat on
the edge of the bed scrolling through TV guide I believe she
said. He handed her the baby. Woke her up, gave her the baby,
told her he was going to take a shower. He supposedly left
and took a shower, came back. He said that the baby was up.
So he went to the kitchen to get a bottle. Came back, fed the
baby. After he fed the baby, he said he left to put the
bottle back up. When he came back the baby was gasping. He
didn't know what to do. He grabbed a syringe, cleared the
nose and mouth. The baby still wasn't responding. He woke
up Donasty then Ms. Susie and they notified paramedics.
indicated to Detective Howard that she noticed bruising on
the baby after Kenneth took a shower. She had not seen it
before that time.
Howard was further questioned about the interview as follows:
Q And I believe in the statement you asked her what was
Ashtyn wearing and her answer was he had a bruise right
before but it looked like it was going away. Do you remember
her saying that?
A Right. Under the chin. Which Detective Bowens or any other
advise of a bruise on the chin. The bruising that they told
me was the face and abdomen, and then the scabs on the back.
. . . .
Q So she indicated she saw bruising on the chin?
A She did, but I believe she stated she didn't know where
it came from.
Howard indicated Ashtyn had scabs on his back, indicating old
injuries. Detective Howard testified that Defendant either
did not know about the scabs or did not know where they came
Howard was asked about Defendant's demeanor. He indicated
that initially "it was like she just didn't care.
Nonchalant. But once the baby passed, she showed a little
emotion." Detective Howard described her reaction as a
whimper. He thought she began to cry when he told her she
would be brought to the Renaissance Home, a detention center
for juveniles. He stated that Kenneth "was the same way.
He showed no emotion, even after I told him the baby had
passed. He was just okay."
told Detective Howard the baby was fine before the "baby
went in the room. All parties indicated the baby was fine
before he went in the room." Detective Howard testified
that Susie told him Defendant and Kenneth were in the room
Howard further testified regarding Defendant's knowledge
of the events as follows:
A . . . she seemed she didn't care. She didn't have
any knowledge of any of the baby's injuries - the scabs,
the bruising, anything. Even asking her did she hear any
noise, she said she was asleep.
. . . .
A . . . The baby was in the room with her, in the bed with
her. If anything was going on, she should have been aware of
it. The baby was crying, screaming - they're in the same
bed you know. It's kind of hard for me to believe that
she had no knowledge of what was going on when she was right
next to the baby, the victim.
said she never saw Kenneth or Susie hit or abuse the baby.
She also stated Kalib "never had the baby," as they
did not allow him to "have the baby." Defendant
indicated it was not possible that the baby fell. Defendant
reported she left Ashtyn with Susie that day while she went
to the store, and Ashtyn was fine upon her return. Detective
Howard later testified:
Based on all accounts, the baby was fine until the baby went
in the room with Kenneth and Donasty. Donasty was in the bed,
apparently awake when Kenneth came in. According to both
their testimony [sic], I believe Kenneth said she was up and
he gave her the baby. I believe she said she was asleep and
he woke her up and gave her the baby. Both accounts, she
received the baby from him. They were in the bed. If anything
happened from that time until the time they called the
paramedics, [it's] her and Kenneth in the room. I
don't see how she wouldn't know what happened.
Howard was further questioned about the bruising as follows:
Q Okay. And Donasty in her conversation with you and her
interview with you indicated that she was not aware of the
bruising or she did not know where the bruising had come
Q Where did she say she saw bruising?
A Around - I believe she said the right eye. I believe he
said the left eye. Or vice versa. They both gave the opposite
side of the face. But they both indicated that it was
bruising to the face.
Howard indicated Defendant initially said she did not know
what occurred. She then stated she was asleep, Kenneth
brought her the baby, and Kenneth woke her up and told her
that Ashtyn was gasping for air or was unresponsive.
Detective Howard then asked Defendant what led to Acadian
Ambulance arriving at the residence. Detective Howard was
then questioned regarding this interaction as follows:
A She said her son stop[ped] breathing.
Q . . . And then you asked how do you know that, is that
Q What was her response?
A She didn't see his stomach moving.
Q Okay. So the truth is she did know that her son was not
breathing, is that correct? Based on her statement?
A Yes, sir.
Q But then you kind of let it go, as good detectives do, and
you came back to it, didn't you?
A Yes, sir.
Q And her story changed a little bit. You followed back up by
asking about Kenneth being in the shower?
Q And then she gave you a different story about what happened
when he got out of the shower?
A I believe she said that he woke her up and said that the
baby was gasping for air.
Q And then they went and got grandmother who called?
A And she called the paramedics.
Q So she did observe the baby [be]cause she told you that,
Q Because she noticed the baby's stomach was not moving?
Q You also asked her at that time, in the beginning of the
statement, who was all with her. Do you recall who she said?
. . . .
Q In the room when the baby - she observes the baby's
stomach not moving?
A Her and Kenneth.
never asked to stop the interview so that she could go check
on her son. Detective Howard did not recall Defendant asking
about the condition of the baby. However, after the first
time Ashtyn coded, Officer Littleton called every few minutes
to say the baby coded again and to ask what Defendant wanted
to do. In response to Officer Littleton's question,
Defendant indicated she wanted life-saving efforts to
Torence Bowens was present during Defendant's interview
with Detective Howard. He reinforced Detective Howard's
testimony, adding that Defendant appeared to be "very
detached" during the interview. According to Detective
Bowens, Defendant showed a little emotion when she was told
the baby died and a lot of emotion when she was told she
would be detained at Renaissance Home.
Christopher Tape was accepted as an expert forensic
pathologist. He performed an autopsy on Ashtyn Cohen on
January 3, 2017. Dr. Tape opined that Ashtyn was twenty-seven
days old and suffered blunt force trauma to the head.
Externally, there was a contusion to the right cheek that was
eight by seven centimeters. There were hemorrhages in the
whites of the eye and the inner eyelid.
petechial hemorrhages of the eye were a direct result of
whatever caused the cheek injuries. Internally, there was
hemorrhaging of the right scalp and right temporalis muscle.
There was also a left scalp hemorrhage. There was a traumatic
brain injury and a subdural hemorrhage, between the dura and
the brain, on both sides. There were also subarachnoid
hemorrhages in the area of the bridging veins, veins between
the dura and the brain, that were broken due to shearing
forces, most typically due to acceleration/deceleration. Dr.
Tape described shearing forces as "kind of side to
side." The corpus clausum, a piece of tissue about half
a centimeter wide that connects the two hemispheres of the
brain, was torn. Dr. Tape opined that injury may have also
been the result of shearing forces, swelling, or from being
connected to a respirator. Dr. Tape examined the baby's
eyes and found hemorrhages in the retina and the optic nerve.
Dr. Tape believed this was caused by brain swelling.
were blunt force injuries to the external body. There were
contusions to the left upper chest, left lower chest, right
abdomen, and right lower back. There were also multiple
healing lacerations with scabs on the back and multiple
healing lacerations where the scabs had been recently
Tape found injuries to the muscles next to the vertebrae. The
eleventh rib on the back side was fractured very close to
"where it comes to the vertebrae." There was a
hemorrhage and a contusion to the middle portion of the right
lung, a contusion or hemorrhage to the diaphragm, and a liver
contusion and laceration that extended into the parenchyma.
There was also hemorrhaging around the right kidney and the
right adrenal, which was probably due to the liver
laceration. There was a hemorrhage or bruise on the surface
of the esophagus. There was also a hemorrhage to the right
hip area, which included "internal injuries along the
soft tissue and is actually tracking down into the
scrotum." The injuries were the result of blunt force
trauma. Dr. Tape testified there were 200 cubic centimeters
(cc) of blood in the abdominal cavity and another 200 cc in
the right thoracic cavity. Dr. Tape indicated that was a
significant amount of blood.
Tape was then questioned as follows:
Q Okay. Now, the liver and the other injuries that you are
talking about - was this a one time or ongoing type of
injuries [sic] that you observed during your autopsy?
A These are all roughly the same age. And this child
isn't very old, obviously. But there are so many injuries
- you can't have an injury to the head and the body. I
can take my hand and make a big injury on the body and cover
say the liver and the lung and that sort of thing. But I
can't cover the head as well. So it would have to be some
sort of separate injury.
Q The injuries that was [sic] done to this baby with the
liver, would that be within hours or days? Or how long?
A One of the things I did in this case, and very typically in
a case like this, is I take multiple - make multiple
microscopic slides in multiple places of where the injuries
are. And what you can see is when you first get injured,
you've got fresh red blood cells and then they become
broken down or laced. And then you sort of get acute
inflammation and you get chronic inflammation. So we have in
these injuries anywhere from acute injuries with just intact
red blood cells to sort of a little bit of acute and chronic
inflammation. So we're talking days old. Maybe three days
to five days, give or take on the liver and the head injury.
They're not weeks old. But I can't rule out that they
were separate. You know, it could have been three days and
five days. Because those are overlapping ranges, obviously.
Tape stated that he gave his opinion in an autopsy report ten
percent of the time and did so in this case to support his
conclusion that the death of the baby was a homicide. He read
[T]he injuries are acute - which I believe many approximately
days old. Although there are injuries involving the liver, it
suggests healing as well as the scabs on the back which are
both more remote. I want to add to that, I think the subdural
hemorrhage is also probably days old as well.
. . . .
And then I say, . . . a 27 day old infant cannot move
extensively on its own and therefore any injuries are either
due to accident or intentionally inflicted or both. Given the
multiple locations of injuries, including the head and
abdomen, and the severity of the injuries including a liver
laceration and brain injury, as well as different healing
injuries, implying multiple events, the most likely cause of
these is intentional infliction, non-accidental trauma . . .
. For these reasons the manner of death of homicide is most
could not determine the order in which the injuries ...