FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST.
LANDRY, NO. 15-K-0293-B HONORABLE A. GERARD CASWELL, DISTRICT
J. Doran Dwazendra Smith Doran & Cawthorne, P.L.L.C.
COUNSEL FOR DEFENDANT/APPELLANT: Joshua Babineaux
B. Taylor District Attorney, Twenty-Seventh Judicial District
Kathleen E. Ryan Assistant District Attorney COUNSEL FOR
APPELLEE: State of Louisiana
composed of John D. Saunders, Shannon J. Gremillion, and John
E. Conery, Judges.
SHANNON J. GREMILLION, JUDGE.
Joshua Babineaux, was charged by bill of information filed on
July 24, 2015, with second degree cruelty to juveniles, a
violation of La.R.S. 14:93.2.3. An amended bill of
information adding the charge of oral sexual battery of a
victim under the age of twelve, a violation of La.R.S.
14:43.3, was filed on March 10, 2017.
November 7, 2017, the State amended the bill of information
to charge oral sexual battery without the victim being under
thirteen years of age. Defendant then entered a "no
contest plea under State versus Alford" to the charge of
second degree cruelty to juveniles. Sentencing proceedings
were held on November 29, 2017, December 27, 2017, and April
13, 2018. On April 13, 2018, Defendant moved to withdraw his
guilty plea, and the trial court granted that motion. A
second amended bill of information was filed on December 13,
2018, charging Defendant with second degree cruelty to
juveniles and oral sexual battery on a victim under the age
waived his right to trial by jury on January 3, 2019, and a
bench trial commenced. Defendant was found guilty of second
degree cruelty to juveniles and not guilty of oral sexual
battery on January 4, 2019. On January 24, 2019, Defendant
was sentenced to serve five years at hard labor. A Notice of
Appeal was filed on January 31, 2019, and was subsequently
asserts the following errors:
1. The trial court erred in finding Babineaux guilty of
second-degree cruelty to juveniles when [there was]
insufficient evidence to establish that defendant
intentionally placed the victim in hot water or any other
elements of the offense.
2. The trial court erred by placing too much weight on Dr.
Wood's expert testimony to find Babineaux guilty of
second degree cruelty to juveniles.
3. The trial court erred in excessively sentencing Babineaux
to five years at hard labor for this first time felony
who was four years old on the date of the offense, was burned
with hot water during a bath.
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 there is one error patent.
was no written waiver of jury as required by La.Code Crim.P.
art. 780. However, Defendant and his attorney were in open
court when the trial court extensively questioned Defendant
regarding his waiver of jury trial. The trial court found
that Defendant knowingly and voluntarily waived his right to
jury trial. See State v. Bell, 13-1443 (La.App. 3
Cir. 6/4/14), 140 So.3d 830 (this court found the error in
failing to obtain a written waiver harmless where defendant
and his attorney were in open court when the judge addressed
his right to, and waiver of, jury trial.) See also State
v. Loyd, 18-968 (La.App. 3 Cir. 6/5/19), 274 So.3d 112.
Accordingly, the error in failing to obtain a written waiver
in violation of La.Code Crim.P. art. 780 is harmless under
the facts of this case.
OF THE EVIDENCE
first assignment of error, Defendant contends the trial court
erred in finding him guilty of second degree cruelty to
juveniles when there was insufficient evidence to establish
that he intentionally placed the victim in hot water or any
other elements of the offense.
Under the due process standard of Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979) (emphasis in original), "the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." When reviewing a
conviction based upon circumstantial evidence, the reviewing
court must determine whether, viewing the evidence in the
light most favorable to the prosecution, a reasonable trier
of fact could have concluded beyond a reasonable doubt that
every reasonable hypothesis of innocence had been excluded.
See State v. Morris, 414 So.2d 320, 321-22 (La.
1982) (citation omitted); see also State v.
Captville, 448 So.2d 676, 680 (La. 1984) ("When a
case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by
the defendant's own testimony, that hypothesis falls, and
the defendant is guilty unless there is another hypothesis
which raises a reasonable doubt."). The reviewing court
"does not determine whether another
possible hypothesis has been suggested by defendant
which could explain the events in an exculpatory
fashion[; rather, the reviewing court] evaluates the evidence
in the light most favorable to the prosecution and determines
whether the alternative hypothesis is sufficiently reasonable
that a rational factfinder could not 'have found proof of
guilt beyond a reasonable doubt.'"
Captville, 448 So.2d at 680 (emphasis in original;
State v. Lewis, 17-81, pp. 3-4 (La. 10/18/17), 236
So.3d 1197, 1198-99 (alteration in original).
was convicted of second degree cruelty to juveniles, which is
A. (1) . . . the intentional or criminally negligent
mistreatment or neglect by anyone over the age of seventeen
to any child under the age of seventeen which causes serious
bodily injury or neurological impairment to that child.
(2) For purposes of this Section, "serious bodily
injury" means bodily injury involving protracted and
obvious disfigurement or protracted loss or impairment of the
function of a bodily member, organ, or mental faculty, or
substantial risk of death.
The statute also requires that the State prove Defendant
acted with intent or criminally negligent mistreatment or
neglect. "'Intentional,' as used in the
aforementioned statute pertaining to cruelty to a juvenile,
refers to general criminal intent, present whenever there is
specific intent and also when circumstances indicate that the
offender, in the ordinary course of human experience, must
have adverted to the prescribed criminal consequences as
reasonably certain to result from his act or failure to
act." State v. Green, 449 So.2d 141, 144
(La.App. 4 Cir. 1984). Criminal negligence is defined as
"such disregard of the interest of others that the
offender's conduct amounts to a gross deviation below the
standard of care expected to be maintained by a reasonably
careful man under like circumstances." Id.
State v. Cooper, 15-820, p. 13 (La.App. 4 Cir.
9/13/17), ___ So.3d ___, ___, writ denied,
17-1561 (La. 11/28/17), 230 So.3d 222.
Roy, a former employee of Hearts of Hope, interviewed J.R. on
February 5, 2015. J.R. was four years old at that time. A
video of the Hearts of Hope interview was submitted as
State's Exhibit 1 and played for the trial court. During
the interview, J.R. spontaneously told Roy that she had
burns. J.R. further stated that her dad wanted to blame it on
her, but he ran the hot water. J.R. explained that
Defendant's son got a scooter for Christmas. She claimed
she had a scooter at her grandmother's house, and the
scooter had been in the yard and gotten dirty. Thus, her
grandmother threw it away. Defendant subsequently told J.R.
she did not need toys. He then ran hot water and made her sit
down. J.R. further claimed Defendant choked her, slammed her
in bed, and made her urinate on herself. Defendant
subsequently ran the water and told her to sit down. J.R.
also stated Defendant bit her on the hand. During this
interview, J.R. also stated the Defendant placed his penis in
Roberts was the mother of J.R., who was eight years old at
the time of trial. Sherika was also friends with Defendant.
She had an intimate relationship with Defendant and believed
he was J.R.'s father. After the events at issue, DNA
tests confirmed Defendant was not J.R.'s father.
met Defendant when she was one or two years old and began
visiting him when she was three or four years old. J.R. spent
the night with Defendant and his family, which included his
wife and two kids. There was no visitation schedule, and
Defendant would call for J.R. to visit. J.R. had visited
Defendant four or five times before she was burned.
testified that Defendant picked J.R. up on a Friday in
January 2015 from school. Sherika checked on J.R. by phone on
Friday and Saturday, and she was fine. On Sunday, Sherika
missed a call from Defendant while she was playing cards at
her father's house. Sherika eventually spoke to
Defendant, and Defendant informed her that J.R. had been
burned in the tub. He stated he would try to bring her to the
doctor Monday, and his wife was a nurse and could take care
of it. Sherika had had a couple of drinks and panicked.
Defendant then stopped answering his phone. Sherika got his
address from a text message and went with several family
members to his house, which she had not been to before.
Defendant's house, Sherika brought J.R. outside and
placed her in the truck. This caused J.R. pain, so Sherika
laid her down and unzipped the onesie she was wearing. J.R.
had tape and gauze on her body. Sherika removed it and saw
pink. She then called police. J.R. was transported by
ambulance to Our Lady of Lourdes. J.R. was subsequently
transferred via ambulance to Baton Rouge General Burn Center.
J.R.'s injuries were depicted in State's Exhibits 2,
3, and 4. J.R. remained at the burn center for approximately
testified the burns had to be scraped and skin grafts
performed. J.R. had a feeding tube and had to learn to walk
and eat again. She also had therapy. Sherika described what
J.R. was like during the first two weeks of her hospital
Well, when we first got there, [J.R.] was- - it was hard.
[J.R.] had to- - they were scrubbing her burns. [J.R.]
screamed in her sleep. She wasn't sleeping. She
couldn't eat. She was in a lot of pain, crying all night.
She couldn't move. It was just heartbreaking.
medical records were admitted as State's Exhibits 5 and
to Sherika, J.R. did not like to go to Defendant's house
and would cry. The last time J.R. visited before she was
burned, she had ant bites all over. She also suffered human
believed Defendant ran J.R.'s bath water and put J.R. in
the water. She did not believe J.R. got into the water on her
own. Sherika was questioned by defense counsel about a
proceeding held in November 2017 as follows:
Q. And do you recall me continuing by saying, that she got in
the water on her own, and you said, uh-huh, to which I
replied, correct, and you said, uh-huh. Do you recall that?
A. Yes, I do recall.
Q. Okay. All right, and then I asked, wouldn't it be true
that that version of events is consistent with what [J.R.]
told you at the very beginning?
. . . .
Q. Has [J.R.] ever told you that Joshua Babineaux picked her
up and dropped her in that water?
A. After everything happened, yes, she did tell me. She told
me the story about what happened.
assumed the water was boiled, but J.R. did not tell her that.
J.R. also never said Defendant dumped her in the water.
Sherika had no independent knowledge of what happened in
asked what J.R. told her about the bath, Sherika testified:
The hot water- - she, she said she got in the tub, and he
told her, don't get out, don't- - or I'm coming,
or don't get out or whatever. I don't know- - I
don't remember exactly what, and she said that whenever
she was- - you know, she was hollering and telling him it was
hot. She was crying, and I don't remember.
Roberts, Sherika's mother, also testified at trial. J.R.
told Melissa that Defendant pulled his pants down and put his
penis in her mouth. J.R. also stated Defendant bit the tips
of her fingers. J.R. further reported to Melissa that
Defendant threw her in bed and choked her, which made her
urinate on herself. She then went to take a bath. Melissa
testified that J.R. screamed and hollered when Defendant
picked her up for visitation. Melissa thought J.R. "was
just being spoiled, but she was afraid of him."
Martin, a nurse at the burn center, was involved in the care
of J.R. Melissa called her into the room to hear J.R.'s
statement. J.R. was alert at that time. J.R. told Martin
Defendant placed his penis in her mouth and instructed her
how to move her head up and down. Martin was asked if there
was anything unusual about J.R.'s injuries, and she
replied, "Yes, just the nature of the burns, and when
you're a burn nurse, you learn to understand what a dip
is, a sock burn." She described that term as follows,
"When you look at the feet, and you have an even circle
around and a knife jack burn, where the buttocks are pushed
down and the feet are pushed down, the soles are somewhat
spared, and the buttocks and lower back are burned."
Martin testified J.R. had unusual marks "between her
fingers, knuckles area." J.R. stated Defendant bit her
and put his hands around her neck and slammed her against a
time of trial, J.R. testified that she was eight years old,
however the incident took place when she was four years old.
She indicated that after she opened presents, Defendant
brought her to a girls' bedroom. He threw her into the
air, and she fell back on the bed. She did not remember if
this was fun or if Defendant was angry. She subsequently
agreed that Defendant looked angry. She thought he might be
angry because her grandmother threw away the scooter
Defendant had bought her. J.R. also testified that Defendant
hung her in a closet, but she was not sure on what day that
occurred. J.R. further testified that Defendant bit her
fingers, but she was not sure when this occurred. She
testified that she thought she bit Defendant after he told
her to bite him. He then bit her. Defendant also hurt her
when she was burned. J.R. testified that before the bath,
Defendant made her suck his private part.
said Defendant ran the bath water, and when Defendant was
finding clothes for her, she got into the tub. When asked if
Defendant was in the bathroom when she got into the tub, J.R.
stated, "I'm going to say, '"no.'"
J.R. testified that she undressed herself and got into the
tub by herself. J.R. told Defendant the water was hot more
than once, and he told her to get in. She did not feel like
she could get out of the tub. She indicated she got out of
the tub by herself, and Defendant was not in the room. She
dressed herself and went to the boys' room. Defendant
realized she had "all kinds of scars and stuff all over
[her]," so he called her mother. J.R. indicated it hurt
a lot, and she did not sleep that night. The next morning,
she told "them" she was in pain. J.R. testified
Defendant told her not to tell anyone.
said she got into the tub by putting one foot first then the
other, and her feet burned. She then told Defendant the water
was hot. He told her to "'just get in it.'"
J.R. was further questioned about the events as follows:
Q. . . . Okay, so what did you do from there? Let's
imagine that the sides of the tub. Did you put your hands on
either side of the tub?
Q. And did you try to sit your bottom down in the water?
Q. Okay, and what was your reaction? Did you hop back up,
because it was too hot, . . .
Q. . . . or did you force yourself to sit down, because you
were trying to obey dad?
A. When he left the room, I stood back up, but then I sat
down and then the water started to get like hot.
A. Too hot to bear?
A. Yes, and then, then when I got out- - I don't know.
Q. I know this is hard for you. We're not going to try to
go too long with this. Do you know, do you have a rough idea
how long you were in that tub? Do you know about how long
five minutes is?
Q. Okay. Was it longer than five minutes?
. . . .
Q. Was it longer than one ...