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State v. Babineaux

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

STATE OF LOUISIANA
v.
JOSHUA BABINEAUX

          APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 15-K-0293-B HONORABLE A. GERARD CASWELL, DISTRICT JUDGE

          Pride J. Doran Dwazendra Smith Doran & Cawthorne, P.L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: Joshua Babineaux

          Earl B. Taylor District Attorney, Twenty-Seventh Judicial District Kathleen E. Ryan Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.

          SHANNON J. GREMILLION, JUDGE.

         Defendant, 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.

         On 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 of twelve.

         Defendant 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 granted.

         Defendant 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 conviction.

         FACTS

         J.R, who was four years old on the date of the offense, was burned with hot water during a bath.[1]

         ERRORS PATENT

         In 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.

         There 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.

         SUFFICIENCY OF THE EVIDENCE

         In his 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; citation omitted).

State v. Lewis, 17-81, pp. 3-4 (La. 10/18/17), 236 So.3d 1197, 1198-99 (alteration in original).

         Defendant was convicted of second degree cruelty to juveniles, which is defined as:

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.

La.R.S. 14:93.2.3.

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.

         Allison 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 her mouth.[2]

         Sherika 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.

         J.R. 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.

         Sherika 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.

         Once at 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 three months.

         Sherika 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 stay:

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.

         J.R.'s medical records were admitted as State's Exhibits 5 and 6.

         According 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 bites.

         Sherika 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.

         Sherika 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 Defendant's bathroom.

         When 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.

         Melissa 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."

         Melinda 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 bed.

         At the 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.

         J.R. 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.

         J.R. 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?
A. Yes.
Q. And did you try to sit your bottom down in the water?
A. Yes.
Q. Okay, and what was your reaction? Did you hop back up, because it was too hot, . . .
A. Yes.
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?
A. Yes.
Q. Okay. Was it longer than five minutes?
A. No.
. . . .
Q. Was it longer than one ...

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